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War And Our Freedoms
THE TROUBLE WITH MILITARY TRIBUNALS
April/May 2002 | Volume 53, Issue 2
The consequences were nearly fatal to the Union cause. From that point on, precious few white men in New York, or elsewhere in the Union, allowed themselves to be drafted. Ultimately, only 46,000 Northern white men were drafted, many of them petty criminals and drunkards, or bounty jumpers, who would sign on for an enlistment bonus and desert at the first opportunity. Were it not for the 180,000 troops who volunteered for the newly formed black regiments, and hundreds of thousands of white soldiers who volunteered or re-enlisted, the Union would have found itself perilously short of manpower at a crucial point in the war.
No other fight over the Constitution has come so close to threatening our national existence. But war has brought with it other attempts to set aside the Bill of Rights. President Woodrow Wilson’s efforts to snuff out protest during and after World War I led to our first Red Scare, with the mass arrest of 6,000 to 10,000 suspected alien radicals in a single night; the imprisonment and forced feeding of suffragists such as Alice Paul, for insisting that women still should have the right to vote, war or no war; and a 20-year sentence in the federal penitentiary for the American Socialist and labor leader Eugene V. Debs, who had told an Ohio crowd, “You are fit for something better than slavery or cannon fodder.” Other citizens received sentences for such crimes as refusing to kiss an American flag.
THE TENETS OF WESTERN JURISPRUDENCE WERE PUT TO THE TEST AT NUREMBERG, AND THEY CAME THROUGH WITH FLYING COLORS.
Wilson’s war on dissent did little but inflame suspicion and paranoia in the country while embittering and humiliating many innocent men and women. It was a bit of history that would, unfortunately, be echoed in the next world war with President Franklin Roosevelt’s decision to let military authorities move Japanese-Americans out of West Coast cities and into internment camps. This forced relocation saved us from no planned act of sabotage that has ever been recorded, while inflicting psychological and monetary damage on thousands of loyal Americans whose sons ran up one of the best battle records in the war.
“If it is a question of the safety of the country or the Constitution of the U.S., why, the Constitution is just a scrap of paper to me,” claimed John J. McCloy, the assistant secretary of war who presided over the internments. McCloy’s attitude prevailed again when the Roosevelt administration got the Supreme Court to sign off on a secret military trial for the German saboteurs whom a U-boat put ashore on Long Island. This is the precedent that Attorney General Ashcroft and President Bush have cited most frequently as a justification for their military tribunal policy, and it is impossible to feel any sympathy for either Nazi agents or for Al Qaeda terrorists. But the secrecy of such World War II trials ultimately served little, if any, practical purpose.
The present administration might better consider two other World War II precedents. One was Roosevelt’s decision to formally declare war upon our enemies, thereby giving a firm constitutional foundation to all our subsequent actions. The other was the Truman administration’s decision to try Axis war criminals in open courts.
There were many objections to such trials at the time, some of them by advocates of more secret and arbitrary tribunals. In fact, no less a figure than Winston Churchill wanted captured Nazi leaders shot out of hand. Yet Truman and the Allies pressed ahead. To be sure, the Nuremberg trials were not conducted solely under American constitutional law, and they were unavoidably tainted by the presence of a judge from Stalin’s Soviet Union. Yet, as presided over by a leading American jurist, Francis Biddle, and with a prosecution led by Supreme Court Justice Robert Jackson, they served an invaluable purpose both in exposing the sheer scale and monstrousness of Nazi atrocities and in establishing a new standard of international justice.
The principles of Western jurisprudence, the same principles that form the backbone of our Constitution, were put to the test at Nuremberg, and they came through with flying colors. Open trials in open courts won the day not only for the law but also for the rule of law. If it was good enough for the Greatest Generation, it should be good enough now.