There are few more difficult issues for a democracy than how it metes out justice to its enemies in time of war. Over the coming weeks and months, as the Supreme Court hears a series of challenges to the Bush administration's proposed use of military commissions to try suspected terrorists, we will become spectators to an extraordinary constitutional drama.
For a preview of how the action is likely to unfold, consider what happened the last time the play was performed, 62 years ago. The setting: wartime Washington. The leading characters: a president determined to make an example out of a group of captured saboteurs; a gritty, Army-appointed defense lawyer intent on doing the best he can for his unpopular clients; nine Supreme Court justices struggling to balance the competing demands of law and war. These characters -- like their modern-day counterparts -- epitomized the American justice system to the rest of the world, and history has delivered a mixed verdict on their performance.
I became fascinated with the case of the Nazi saboteurs (who traveled to America by U-boat with the aim of blowing up factories, bridges and department stores) at about the time the planes crashed into the World Trade Center and the Pentagon on Sept. 11, 2001. The more I delved into the archives, the more I was struck by the parallels between then and now. When President Bush decided, two months after 9/11, to emulate President Franklin D. Roosevelt and establish military tribunals for alleged al Qaeda operatives, history appeared to be repeating itself.
There are differences, of course. Unlike the well-trained killers who destroyed the World Trade Center and fought with U.S. forces in Afghanistan, the Nazi saboteurs were the gang that couldn't shoot straight. They were captured, on American soil, before they got around to blowing anything up. Furthermore, the war on terrorism is a much more nebulous kind of war than World War II, which had a clear goal and clear enemies, whose ideological appeal faded with their physical overthrow. World War II ended when Hitler was defeated; the war on terrorism could go on forever.
But when it comes to the way we deal with captured foes, the similarities are evident enough to ask whether military commissions are compatible with American ideas of justice. As the Pentagon gears up for military tribunals at our Guantanamo Bay base in Cuba, and defense lawyers rehearse the arguments they will make before the Supreme Court at the end of March, it is as if everybody is slipping into pre-assigned roles. In some cases, the actors are reading from the very same text as their World War II predecessors.
The most obvious example of this phenomenon: the rules of procedure for the modern-day military commissions, which were copied almost verbatim from those that Roosevelt established for trying the Nazi saboteurs. The tribunals will consist of seven members. A two-thirds vote is sufficient to secure a verdict. The tribunals will not be required to abide by the cumbersome rules of evidence that are a feature of civilian trials, or even military courts martial. Instead, the presiding officer can admit any evidence that, in his opinion, has "probative value to a reasonable person." (A bow to political correctness: In 1942, the phrase was "a reasonable man.") The appeals process is reduced to a review by the president or the secretary of defense.
Given that the rules of procedure clearly favor the prosecution, it is hardly surprising that modern-day defense counsel have concluded that they must do everything in their power to get their cases transferred to a civilian court. In this, they are following the precedent established by Col. Kenneth Royall, the Army-appointed defense lawyer for seven of the eight Nazi saboteurs. Just as Royall denounced FDR's order establishing the 1942 commission as "unconstitutional," the military attorneys for the Guantanamo detainees have invoked the most basic principles of American justice in defending their clients. In a rhetorical blast submitted to the Supreme Court last month, they accused President Bush of behaving like King George -- who, according to the Declaration of Independence, "affected to render the Military independent of and superior to the Civil Power" and "made Judges dependent on his Will alone." Strong words, particularly when directed at the commander in chief by a few lieutenant commanders and majors.
Like Royall before them, the defense lawyers for the Guantanamo prisoners are attempting to juggle the demands of conscience and discipline. As soldiers, they are part of a chain of command. As lawyers, they must represent their clients to the best of their ability. Royall resolved this contradiction by requesting Roosevelt's authorization to contest the presidential proclamation establishing a military tribunal. After FDR sent a message back through his secretary that defense counsel should decide for themselves how to perform their duties, Royall went ahead and followed his conscience.
This time around, before submitting their brief to the Supreme Court, the military attorneys consulted with Pentagon counsel. According to Lt. Cmdr. Charles Swift, who represents one of the Guantanamo prisoners, they received a reply "almost identical" to the one given to Royall: "Take whatever action you think is appropriate." Swift and his fellow attorneys have studied the Nazi saboteur case closely, and particularly the actions of the defense. "Royall set an example for what we need to do," says Swift.
The Supreme Court justices have also been guided by the Nazi saboteur case in agreeing to hear a series of challenges to the Bush administration's use of military tribunals against suspected terrorists. Like their World War II counterparts, the justices are likely to emphasize their own role as guardians of civil liberty even as they defer to the government on matters of national security.
Chief Justice William Rehnquist has spoken approvingly of the way in which his World War II predecessor, Harlan Stone, handled this tricky balancing act, denying the saboteurs' habeas corpus requests while asserting the Supreme Court's right to review the jurisdiction of military tribunals. In a 1999 speech, Rehnquist noted that courts tend to give wartime presidents the benefit of the doubt: "To lawyers and judges, this may seem a thoroughly undesirable state of affairs, but in the greater scheme of things, it may be best for all concerned . . . .While we would not wish to subscribe to the full sweep of the Latin maxim Inter arma silent leges [In time of war, the laws are silent], perhaps we can accept the proposition that, though the laws are not silent in wartime, they speak with a muted voice."
The Stone court, like the Rehnquist court, was split down the middle. Stone was a stickler for legal formalities; Felix Frankfurter was so prejudiced against the saboteurs that he referred to them in private as "damned scoundrels" who deserved to "rot in lime." On this occasion, there are obviously considerable differences of opinion between Ruth Bader Ginsburg on the left and Antonin Scalia on the right. But it seems likely that the center of the court, as represented by Sandra Day O'Connor, will take a position very similar to that staked out by Stone's court.
Defense lawyers, meanwhile, will do their best to argue that the war on terrorism cannot be compared to World War II, and there is no reason to set up a parallel system of military justice for enemy combatants. In their submission to the Supreme Court, the Guantanamo Bay attorneys point out that Congress issued formal declarations of war against Japan and Germany, empowering the president to mobilize the entire resources of the nation. Resolutions passed by Congress approving the use of force against terrorists in the wake of the 9/11 attacks were much more limited.
The other major difference is the speed with which justice has been dispensed. The entire proceedings in the Nazi case -- from the saboteurs' capture to their trial by military commission to the Supreme Court hearing -- took just six weeks. Six of the eight defendants were promptly executed by electric chair; two were sentenced to lengthy prison terms. By contrast, many of the Guantanamo Bay detainees have been languishing in prison for more than two years without being charged, and the Bush administration has still not announced a firm date for the start of the tribunals.
By energetically defending his clients, and fighting their case all the way to the Supreme Court, Royall saved the honor of the American justice system. Before their executions, the six who had been condemned to death wrote an unsolicited letter to Royall and the other defense lawyers, thanking them for their efforts in not-quite-correct English. "Before all we want to state that the defense council . . . has represented our case as American officers unbiased, better than we could expect and probably risking the indignation of public opinion."
By contrast, Stone and his fellow justices came in for considerable criticism from legal scholars after the war was over. They were so intent on helping the government out that they denied the saboteurs' appeals -- effectively sending six men to their deaths -- before reaching agreement among themselves on the legal grounds for the verdict. (The judgment was not delivered until October 1942, 12 weeks after the men had been executed.) Even Frankfurter came to have doubts about this procedure. The saboteur trial was "not a happy precedent," he noted in 1953, after casting a losing vote in favor of a stay of execution for Julius and Ethel Rosenberg. Historians have also faulted Roosevelt for his obvious bias -- he decided at the outset that the saboteurs should be executed, whatever the court's ruling.
Views about whether justice was served in the saboteur case have veered back and forth, depending on whether America is at war or at peace. In times of war, the legal pendulum swings in favor of the government. In times of peace, pressure mounts for a more vigilant defense of civil liberties.
It is hard to read the anguished letters the saboteurs wrote their loved ones while waiting to be executed, which have been preserved at the National Archives, and not feel sympathy for them. "Never thought they would take our life away," Hermann Neubauer told his American wife, Alma. "If only it would not hurt so much, it would not be so hard. But I shall try to be brave, and take it as a soldier." By normal standards of justice, their deaths seem senseless -- but no more senseless than the deaths of their American counterparts, who were being butchered that very moment at a place called Guadalcanal.
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