[wordup] Safire: Kangaroo Courts

[Adam Shand]

Via: The Eristocracy <Eristocracy at merrymeet.com>
From: http://www.nytimes.com/2001/11/26/opinion/26SAFI.html

November 26, 2001
Kangaroo Courts
By WILLIAM SAFIRE

WASHINGTON -- As soon as German U-boats put eight saboteurs on U.S.
shores during World War II, one of the eight called the F.B.I. to betray
the mission but was brushed off as a crackpot. Days later, he called again
and managed to persuade the F.B.I. he was an authentic saboteur. Partly to
keep this embarrassment of bungled enforcement from becoming known, the
eight were secretly tried by a military court inside the F.B.I.
headquarters.

Unexpectedly, a U.S. Army lawyer assigned to the Germans mounted a
spirited defense. Col. Kenneth Royall, citing the landmark 1866 Supreme
Court decision of Ex Parte Milligan -- holding that martial law could not
be applied where federal civil courts were in business -- challenged the
secret tribunal's legality.

F.D.R. told his attorney general, according to Francis Biddle's memoirs,
that he would resist any Supreme Court decision to give the accused
saboteurs a regular court trial: "I won't hand them over to any United
States marshal armed with a writ of habeas corpus." Confrontation was
averted when a cowed Supreme Court unanimously acknowledged the extra-
judicial power of a president armed with a Congressional declaration of
war. Six of the eight captives went to the electric chair; J. Edgar Hoover
was awarded a medal of honor.

Now President Bush, with no such Congressional declaration, is using that
Roosevelt mistake as precedent for his own dismaying departure from due
process. Bush's latest self-justification is his claim to be protecting
jurors (by doing away with juries). Worse, his gung-ho advisers have
convinced him -- as well as some gullible commentators -- that the Star
Chamber tribunals he has ordered are "implementations" of the lawful
Uniform Code of Military Justice.

Military attorneys are silently seething because they know that to be
untrue. The U.C.M.J. demands a public trial, proof beyond reasonable
doubt, an accused's voice in the selection of juries and right to choose
counsel, unanimity in death sentencing and above all appellate review by
civilians confirmed by the Senate. Not one of those fundamental rights can
be found in Bush's military order setting up kangaroo courts for people he
designates before "trial" to be terrorists. Bush's fiat turns back the
clock on all advances in military justice, through three wars, in the past
half-century.

His advisers assured him that a fearful majority would cheer his
assumption of dictatorial power to ignore our courts. They failed to warn
him, however, that his denial of traditional American human rights to non-
citizens would backfire and in practice actually weaken the war on terror.

Spain, which caught and charged eight men for complicity in the Sept. 11
attacks, last week balked at turning over the suspects to a U.S. tribunal
ordered to ignore rights normally accorded alien defendants. Other members
of the European Union holding suspects that might help us break Al Qaeda
may also refuse extradition. Presumably Secretary of State Colin Powell
was left out of the Ashcroft try- 'em-and-fry-'em loop.

Thus has coalition-minded Bush undermined the antiterrorist coalition,
ceding to nations overseas the high moral and legal ground long held by
U.S. justice. And on what leg does the U.S now stand when China sentences
an American to death after a military trial devoid of counsel chosen by
the defendant?

We in the tiny minority of editorialists on left and right who dare to
point out such constitutional, moral and practical antiterrorist
considerations are derided as "professional hysterics" akin to "antebellum
Southern belles suffering the vapors." Buncha weepy sissies, we are.
(Frankly, Scarlett, I don't give a damn -- I've always been pro-bellum.)

The possibility of being accused, however, of showing insufficient outrage
at those suspected of a connection to terrorists shuts up most
politicians. And a need to display patriotic fervor turns Bush's liberal
critics into exemplars of evenhandedism. Careers can be wrecked by taking
an unpopular stand.

But not always. Forty years ago, my political mentor introduced me to his
senior partner, Ken Royall, who after World War II had been appointed by
President Truman to be the last secretary of war. Royall, then head of a
great New York law firm, considered the high point of his career his
losing fight to get a group of reviled Nazi terrorists a fair American
trial.

Copyright 2001 The New York Times Company