Commentary Magazine


Contentions

Fry Them

The Washington Post reports today:

More than 6 1/2 years after devastating suicide attacks against the United States launched the Bush administration’s fight against global terrorism, the alleged mastermind of the Sept. 11, 2001, plot is scheduled to appear in a Guantanamo Bay courtroom tomorrow morning.

In the current issue of COMMENTARY, I have an article entitled In the Matter of George W. Bush v. the Constitution, which takes up, as part of a more extended discussion of the legal knots in which we have tied ourselves, the issue of military commissions. Drawing on Jack Goldsmith’s brilliant book, The Terror Presidency, I made a comparison to our practices in this area during World War II.

They were very different, to say the least.

In June 1942, eight Nazi saboteurs were captured in the United States; one of them was an American citizen. The group had plans to blow up defense plants and other national infrastructure, along with Jewish-owned department stores. President Roosevelt demanded of Francis Biddle, his attorney general, that the men be tried by a military commission. Although Biddle had reservations about whether the law would permit this, FDR swept such scruples aside. In short order, a commission was established that had “no written procedures,” operated in total secrecy, and was not based upon law. The Supreme Court took up a habeas-corpus plea from the saboteurs but then beat a hasty retreat in the face of threats from the White House. In the end, the military commission pronounced a death sentence on six of the eight. A week later, to the approbation of the public as well as the New York Times and the Washington Post, they went to the electric chair. All this happened in the course of a mere six weeks after their capture.

Compare such proceedings with the ongoing effort since 9/11 to establish military commissions for prisoners in Guantanamo. With the executive branch curtailed, that effort is now dragging into its seventh year with no end in sight. It involves men charged with crimes outstripping anything done by the hapless German saboteurs who had managed only to wander around Manhattan and Chicago, spending $612 of the $174,588 they had brought with them. The fact that captured al-Qaeda terrorists are today being represented by blue-chip law firms and are using the federal courts to challenge every aspect of the government’s case offers a glimpse of how radically the cultural landscape has changed.

In striking contrast to its stance toward the same issue today, the New York Times editorialized back then that the military commission

was lawfully constituted; and that no cause was shown for the discharge of the prisoners by writ of habeas corpus. . . . The statements made by prosecution and defense counsel made it clear that the accused were members of the German army; that whether or not they landed in a war zone, they came through one to get ashore; and that they went behind our lines wearing civilian clothing. The fact that there were eight of them instead of 800,000 made them no less invaders, subject if captured to military law. The fact that they were not in uniform exposed them to the military penalty of death. In light of what we now know all this is common sense.

How things have changed. Common sense seems to have gone the way of the Edsel.