from the Congress Action newsletter

Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism

by: Kim Weissman
December 2, 2001

Senate democrats are confirming Bush judicial nominees at a rate significantly slower than prior administrations, according to the Congressional Research Service. Despite democrat whining over slow confirmations during the Clinton years, Clinton-appointed judges dominate the federal bench, accounting for more active federal judges than Reagan, Bush senior, and G.W. Bush combined. "The longer they can keep Bush's judges off the bench, the more mischief those liberal activist judges can make", says Thomas Jipping of the Free Congress Foundation.

"What Democrats have done….is try to thoroughly politicize the confirmation process. Thus, in June, and again in early September, they held hearings not on the nominations but on whether nominees should have to pass an ideological litmus test, made up by Democrats, before being confirmed. What's the point of having judges hear cases on abortion, gun control, or affirmative action if you're going to decide those cases, in effect, during the Senate confirmation process? To listen to the Democrats, judges should decide cases not on the facts and the law but on the basis of their ideology. That's the death of the rule of law."
— Roger Pilon, at the Cato Institute.

But Democrat Senator Patrick Leahy, chairman of the Senate Judiciary Committee, has other things to do beside starting to restore the rule of law and hold hearings on judicial nominees. Many of Bush's judicial nominees haven't even had a committee hearing yet, let alone a Senate vote on confirmation. Instead, this week Leahy's committee began hearings to showcase criticism of the military tribunals established by Bush's Military Order of November 13, 2001, "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". Leahy's complaint that Congress wasn't consulted about the tribunals, or the other law enforcement activities that he objects to, is completely without merit. Leahy himself approved those activities, by voting for Senate Joint Resolution 23 — as did every other democrat on his committee.

The November 13, 2001, Military Order is explicitly limited to "any individual who is not a United States citizen", and "that such individual…is or was a member of the organization known as al Qaida; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States…; or has knowingly harbored one or more individuals" who fit that description.

The trial procedure is set out in the Military Order: they "…may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death"; the trials "shall at a minimum provide for…a full and fair trial, with the military commission sitting as the triers of both fact and law; admission of such evidence as would…have probative value to a reasonable person; in a manner consistent with the protection of information classified or classifiable; conviction only upon the concurrence of two-thirds of the members of the commission; sentencing only upon the concurrence of two-thirds of the members of the commission," and the trials shall be subject "for review and final decision by [the President] or by the Secretary of Defense."

Conservative columnist William Safire (in a seriously over-wrought editorial) wrote, "…the President of the United States has just assumed what amounts to dictatorial power…". And in a startling insult to the military, "…we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts." Safire's alternative? "…turn [bin Laden's] cave into his crypt." So for all of Safire's hysteria about "kangaroo courts", Safire proposes to dispense with trials altogether! If bin Laden tries to surrender, Safire says that we should refuse to accept surrender without what he calls a "policy of universal surrender: all of al Qaeda or none." The instantaneous and simultaneous surrender of every member of al Qaeda around the world would clearly be impossible, even if bin Laden desired it, so Safire's doctrine can thus be simply stated — no surrender, no trial, simply have him killed.

The New York Times claims that "American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants' basic rights." Where the Times thinks that a non-citizen terrorist, caught and brought to trial outside the U.S., gets those "basic rights", is unstated, and since the Constitution obviously does not apply to non-citizens captured and dealt with overseas during wartime, it would be interesting to know exactly what the Times thinks those "basic rights" are. But the globalists at the Times, and elsewhere, have a (predictable) solution: Bush "should ask the United Nations Security Council to establish an international tribunal…". Which would be an even greater mockery of justice than our own civilian courts have become. The unfortunate reality is that, in our justice system, justice often takes a back seat to left-wing victimology, racial demagoguery, and courtroom theatrics.

It is clear that anti-Bush and anti-Ashcroft venom is the key motivation for many critics of the military tribunals. The Washington Post wrote, "Yet Ashcroft, a staunch conservative whose views almost cost him the appointment as attorney general, is unbowed." Left-wing extremists did their best to defeat Ashcroft's confirmation with ugly innuendo and smears, and they are still angry that he hasn't learned his lesson to be appropriately servile to left-wing ideologues. And many of those ideologues aren't about to unite for the good of a country they obviously hate.

At the currently ongoing State of the Black World Conference in Georgia (one goal of which is to "Intensify the global movement for reparations for people of African descent"), the Washington Times reported an exhortation from Jesse Jackson to return control of Congress to democrats in 2002, so "Maxine Waters becomes a number one congressional leader…and we can put on trial the Ashcroft contingent." A trial, Jackson wants, not for terrorists who killed thousands of Americans, but for John Ashcroft for trying to stop more deadly attacks. Regarding the new-found patriotism of most Americans, the Washington Times reported Atlanta's mayor as saying, "we understand we are not part of that." What he says black Americans "are not part of" is the very Constitutional system that made him mayor of a major American city. If he rejects that Constitutional system, what does he propose to replace it with?

President Bush summed up the need for military tribunals best when he said simply, "I think the president needs to have the powers necessary to conduct a war." On September 20 Bush addressed Congress, the nation, and the world: "On September the 11th, enemies of freedom committed an act of war against our country." But then he failed to demand that the Congress issue a formal Declaration of War. Had he done so at that time, there is no question that the Congress would have swiftly obliged. But it was a fleeting opportunity, and Bush failed to seize it, and so we are waging an undeclared war, with rising hysteria over military tribunals and the alleged civil rights of global terrorists.

Military tribunals were widely used during the Revolutionary War. During the Civil War, Confederate soldiers found behind Union lines in disguise were tried and convicted as spies by military commissions. During World War Two, military tribunals were used to try German saboteurs (one of whom was an American citizen) landed in this country by submarine, which gave rise to the premier Supreme Court decision in this area, Ex Parte Quirin (317 U.S. 1), decided October 29, 1942.

In Quirin the Court distinguished between lawful and unlawful combatants:

"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. …enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Going even further than the Bush Military Order, the 1942 Quirin Supreme Court also applied this rule to U.S. citizens:

"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war."

Any of the hate-America left who still sympathizes with terrorists and who act to subvert this nation from within should take note.

The Supreme Court in Quirin noted the formal declaration of war between the United States and the German Reich, and stated, "The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war…and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war." The Court observed that President Roosevelt "has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war."

In the present situation there was no formal Declaration of War. But in the language of Quirin, Bush is in fact carrying "into effect all laws passed by Congress for the conduct of war"; and there has been "authority conferred upon him by Congress"; specifically House Joint Resolution 64, passed 420 to 1 on September 14, and Senate Joint Resolution 23, passed 98 to 0 on the same day, both of which authorize the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

But the president didn't seek a Declaration of War, he simply declared a state of national emergency. And that might not be good enough for the Supreme Court to approve the use of military tribunals, especially a Supreme Court that has been so roundly lambasted by left-wing extremists in the media, in academia, and in the legal community, for one of its more recent decisions, a decision that the left still refuses to accept and still, despite the war, tries in every way they can to circumvent and undermine — the case of George W. Bush v. Albert Gore, Jr, December 12, 2000.

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The Cato Institute:

Free Congress Foundation:

Military Order:
"Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism":

Ex Parte Quirin (317 U.S. 1):

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

Contact Mr. Kim Weissman at
"I gladly receive and respond to any comments and criticisms readers care to make regarding the content of what I write every week in the CONGRESS ACTION newsletter. But I do not open e-mail with attachments from unknown senders, and e-mails containing attachments are automatically deleted." – Kim Weissman

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3 dec 2001