The continuing puzzle [about military trials of "saboteurs"]

[Bryan Wildenthal]

> -----Original Message-----
> From: Francisco Forrest Martin [mailto:ricenter at IGC.ORG]
> Sent: Friday, November 23, 2001 5:51 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: The continuing puzzle of the argument about
> impeachment for
> suppo sed war crimes
>
>
> Prof. Volokh writes: "But the only discussions of any trial
> in the Convention seem to refer to trial by occupying powers,
> of trial of internees for offenses against discipline
> committed while under internment, and of trial for violation
> of the Convention. I have not yet seen any citation to any
> provision that makes clear how the Conventions apply to
> saboteurs who are sent in civilian garb, not openly bear
> arms, onto a party's territory to kill the party's citizens.
> I stress again that I'm no expert in the field, and may be
> missing something -- but what exactly is it that I'm missing?
>  Are such saboteurs even covered by the Convention?"

It seems to me that the textually most economical and logically supportable
approach, and most consistent with preserving constitutional liberties, is
to treat such "saboteurs" or "terrorists" (at least when caught and tried
within the US for acts committed within the US) simply as what they are:
freelance criminals like any other.  Even the most depraved serial killer is
entitled to the full constitutional protections of jury trial and due
process, so why should "saboteurs" or "terrorists" be subject to a military
drumhead court-martial run by the President as C-in-C?  If such saboteurs
are *also* agents of some foreign power, that might justify *also* treating
them in various other ways, as enemy aliens to be interned, POW's, or
whatever, but would *not* justify prosecution and punishment without the
full panoply of constitutional guarantees.  The earlier posting which
pointed out the true reason why FDR insisted on a secret military trial of
the Nazi saboteurs (avoiding embarrassment to the FBI) illustrates the
importance of not allowing *any* exceptions to the regular procedures.  Any
exception will be abused.

An earlier posting also pointed out that the 5th Amendment grand jury
guarantee is expressly qualified by an exception "in cases arising in the
land or naval forces, or in the Militia, when in actual service in time of
war or public danger."  Congress's general power to provide for governance
of the military (Art I:8:14) was evidently not thought sufficient to carve
out such an exception.  No such express exception appears in the Art. III or
Amend. VI jury trial guarantees.  This seems a devastating textual rebuttal
to any notion that a person *not* in the US military caught engaging in
"sabotage" or "terrorism" within domestic US jurisdiction where civilian
courts are open for business, could be tried by any sort of "military
commission."  It would even tend to cast doubt on the constitutionality of
denying full jury trial even to members of the US armed forces in wartime,
and at the very least suggests that uniformed military are entitled to the
fundamentals of due process (since again, no such "armed forces/war/public
danger" exception is stated for the due process clause appearing in the very
same 5th Amendment).  I recognize, of course, that a sufficiently
well-constituted military court-martial might satisfy at least the rudiments
of due process (if not, I suspect, the full-fledged jury trial guarantee and
all it implies).  I think the US can generally be proud of the quality of
justice afforded to our uniformed military, even in wartime, but previous
postings have pointed out the inherent concerns of impartiality and
independence that affect military tribunals.  There should be an *enormous*
burden of persuasion on anyone who proposes subjecting anyone outside a
regular uniformed military to any sort of military trial.

The other night on TV I saw a panel of talking heads (including Robert
Bork!) discussing this very issue.  Unfortunately, I missed most of it, but
heard one panelist solemnly argue that of course, Pres. Bush has "inherent
power as Commander-in-Chief" (without even Congressional authorization!) to
order such military trials of terrorists.  I felt like throwing things at
the TV.  How in the world does the President's authority as C-in-C over the
US military authorize him to deny express constitutional guarantees to
persons *not* in the US military, accused of crimes within the US?  This is
exactly the sort of dangerous nonsense that I had thought the Supreme Court
laid to rest in Ex parte Milligan 135 years ago.  It is a sad day, indeed,
if we are falling back even from the standard of protection of civil
liberties set by that mediocre and none-too-liberal-minded Court!

Bryan Wildenthal
Thomas Jefferson School of Law