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The Threat to Patriotism

True, it is politically difficult for elected officials to criticize or oppose hugely popular government policies. John Ashcroft has already told us that those who oppose his policies are giving aid and comfort to the terrorists. But this intimidation makes it all the more important to scrutinize the arguments that have been put forward to justify such a major retreat from our traditional concern for fair play and for the rights of anyone accused of serious crime.


Some of the arguments are transparently weak. It is often said, for example, that terrorists do not deserve the traditional protections we afford other suspects because terrorists do not respect freedom themselves. Defending his military tribunal scheme before a group of applauding prosecutors, President Bush declared that “non-US citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life.”10 Professor Laurence Tribe of Harvard Law School said something remarkably similar. Though he opposed the military tribunal plan as originally conceived, he did not oppose a revised and improved version of the plan, noting that American soldiers accused of crime are subject to courts-martial, not ordinary criminal trials. “Why should members of al-Qaeda and those who aid them enjoy a constitutional right to a theoretically purer form of justice than our own soldiers?” he asked.11

But the President’s order calls for a military trial when he determines only that “there is reason to believe” that someone is a member of al-Qaeda, or has engaged in or conspired to commit acts of international terrorism, or has harbored or aided such people. Almost the entire point of any criminal trial—civilian or military—is to decide whether those who are accused of crimes are actually guilty of them, and it is particularly worrying that the President, who would have the right to review verdicts and final decisions under the military tribunal arrangements he proposed, claims that his suspicion is tantamount to guilt. In view of the numbers involved, there is an evident danger that some innocent people who would have been acquitted under the stricter rules of an ordinary American criminal trial will in fact be convicted and punished, perhaps with death, in military trials. It seems even more likely that many of the hundreds of aliens now being detained month after month, in secret and on trivial charges, are not terrorists, do not aid terrorists, and would pose no danger to the community if they were released. Of any proposed set of procedures, we must ask not whether the guilty deserve more protection than those procedures afford, but whether the innocent do.

A second argument insists that the administration’s new measures are justified because they mainly target aliens, and aliens have either no rights under our constitutional system or, at least, fewer rights than citizens do. The Fifth Amendment’s Due Process Clause declares, however, that no person’s life or liberty may be taken without due process of law, and the Supreme Court has several times held that aliens within the United States are in principle entitled to the same due process as citizens. Foreigners seeking to emigrate to the United States, it is true, have no rights to any form of hearing or other process in considering their applications. But, as Justice Breyer said in Zadvydas v. Davis,12 an important case the Court decided last June, “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

In the Zadvydas case, the Court held, by a five to four majority, that it would violate the Due Process Clause for Congress to permit the Immigration and Naturalization Service indefinitely to detain immigrants who had been ordered deported but whom no other country would admit. Presciently, Breyer added that the Court was not considering “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.” But he presumably meant no more than what he said: that the Court was not deciding, either way, whether aliens who had been ordered deported, but no other country was willing to accept, could be detained indefinitely when the government alleged this to be necessary for national security.

Certainly nothing in his statement, or in any other Supreme Court decision, holds that lawfully resident aliens may be tried for crimes allegedly committed in this country in special military tribunals without the normal rules of evidence, or that they may be denied the benefit of private conversations with a lawyer, or that they may have their homes searched without their knowledge when the search is a fishing expedition to discover evidence that may be used in charging them with some crime or other.

Proponents of trying aliens in special military tribunals cite as a precedent the so-called “Saboteurs Case”—Ex Parte Quirin—which the Supreme Court decided on July 31, 1942.13 In that case, eight German soldiers, all of whom had lived for substantial periods in America and returned to Germany before the war, landed from submarines on the Long Island and Florida coasts with explosives and instructions to “demoralize” this country by blowing up munitions factories and civilian crowds. Though the FBI claimed credit for intercepting them, and President Roosevelt gave J. Edgar Hoover a medal for his vigilance, the saboteurs were in fact discovered only when one of them, who had landed with the intention of divulging the plot, reported it to the police.

Roosevelt insisted that the Germans be tried in a secret military tribunal; in retrospect, at least, it seems plain that secrecy served only to protect the FBI’s false account and thus assure the nation that its borders were secure. Lawyers appointed to represent the Germans appealed the order to try them before a military tribunal. The Supreme Court heard arguments and decided the case in great haste: the Justices ruled that it was not improper to try the defendants in military tribunals, but they did so without any justifying opinion, which they promised to supply later. The saboteurs were quickly tried in secret, and six of them were executed on August 8, 1942. (Roosevelt commuted two of the sentences, including that of the German who revealed the plot.)

The defendants argued to the Supreme Court that they were entitled to the Constitution’s guarantees of due process and trial by jury, and so should have been tried in ordinary courts, not by special military tribunals. When the Court finally published its opinion, more than two months after the executions, it replied, unanimously, that the constitutional guarantees were not intended to supplant the nation’s laws of war, which before the Constitution was adopted permitted military tribunals to try enemy combatants accused of unlawful acts of war (the Court cited the conviction of British Major John André for spying during the Revolutionary War).

The government should be embarrassed to appeal to the Quirin decision as justification for its treatment of aliens now, because that decision, like the Court’s 1944 decision permitting the detention of Japanese-Americans,14 is widely regarded as overly deferential to the executive and, in a crucial part, wrong. (Justice Frankfurter, in a bizarre and embarrassing memorandum to his fellow justices, had pleaded with them to ignore legal niceties and do what Roosevelt asked as part of the war effort.15) The case is a useful reminder of how shortsighted and, in the long run, self-defeating the appeal to judges to show unity with the executive often is.

In any case, the military trials condoned in the Quirin case can be distinguished from those that President Bush’s order contemplates. Chief Justice Stone’s opinion for the Court in the 1942 case emphasized that Congress had declared war on Germany, which was therefore an enemy power, that the defendants did not deny that they were acting on behalf of that enemy power, and that they were therefore unlawful combatants. Congress has not declared war on Afghanistan or the Taliban or even al-Qaeda, and the President’s order is therefore a decision of the executive branch acting alone, rather than with legislative concurrence.16 Even if Congress had authorized the order in some way, the Court’s Quirin decision, which assumed that the defendants were acting on behalf of an enemy nation, would not automatically apply to the much broader class of suspects the President has designated.

It is true that the line between a conventional enemy power and an international terrorist group is fuzzy, and that the old rules of war need to be revised. Perhaps our law should treat some aliens who cross our boundaries planning terrorism as if they were soldiers committing unlawful acts of war on behalf of an organized enemy. But we could not plausibly treat everyone to whom the President’s order applies in that way. Basque separatists, IRA splinter groups, Colombian drug lords, and foreign Mafia chieftains no doubt act in ways harmful to American interests and may be subject to arrest. But we would not be justified in labeling them as unlawful combatants in a war and then shooting them as spies because they were not wearing uniforms.

The most powerful argument in favor of the administration’s new measures, however, is very different, and it has undoubted force. What any nation can afford to provide, by way of protection for accused criminals, must at least partly depend on the consequences such protections would have for its own security. The terrorist threat to our security is very great, and perhaps unprecedented, and we cannot be as scrupulous in our concern for the rights of suspected terrorists as we are for the rights of people suspected of less dangerous crimes. As Justice Jackson put it in a now often-quoted remark, we cannot allow our Constitution and our shared sense of decency to become a suicide pact. Professor Tribe put the point this way: it may be right, in more normal times, to allow a hundred guilty defendants to go free rather than convict one innocent one, but we must reconsider that arithmetic when one of the guilty may blow up the rest of Manhattan.17

We must, however, take care to distinguish two conclusions that might be thought to follow from these arguments. We might think, first, that the requirements of fairness are fully satisfied, in the case of suspected terrorists, by laxer standards of criminal justice which run an increased risk of convicting innocent people. Or we might think something very different: that even though laxer standards would be unfair we must nevertheless adopt them to protect ourselves from disaster. If we accepted the first conclusion, we would think ourselves justified in setting lower standards of protection for anyone suspected of terrorism, and we would see no reason to attempt to mitigate the heightened risk for innocent suspects by adopting substi-tute protections. If we accept only the second conclusion, however, and concede that we are treating some people unfairly, we should demand a much more discriminating approach. We should insist that government show that unfair treatment is necessary, not for some widely defined category of persons, but, so far as this is practicable, for individual suspects or detainees, one by one. We should also try to mitigate the unfairness in every practicable way when we deem that unfairness necessary. When we treat individual people unfairly for our own safety, we owe them as much individual consideration and accommodation as is consistent with that safety.

  1. 10

    Mike Allen and Susan Schmidt, “Bush Defends Secret Tribunals for Terrorism Suspects,” The Washington Post, November 30, 2001, p. A28.

  2. 11

    Laurence H. Tribe, “Trial by Fury,” The New Republic, December 10, 2001, pp. 18, 20.

  3. 12

    533 U.S. 678 (2001).

  4. 13

    Ex Parte Quirin, 317 U.S. 1 (1942).

  5. 14

    Korematsu v. United States, 323 U.S. 214 (1944).

  6. 15

    See David J. Danelski, “The Saboteurs’ Case,” Journal of Supreme Court History 1996, Vol. 1, p. 61.

  7. 16

    The President’s military tribunal order cited the joint resolution that Congress adopted on September 18 authorizing the President “to use all necessary and appropriate force” against the September 11 terrorists or nations or persons who harbored them. That language does not license or approve military tribunals, however, and the President’s order, in any case, is not limited to suspected September 11 terrorists, but applies to all terrorists, broadly defined.

  8. 17

    Tribe, “Trial by Fury.”

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