April/May 2002 | Volume 53, Issue 2
THE TROUBLE WITH MILITARY TRIBUNALS
Secret military tribunals, from which there is no appeal, imbued with the power to order secret executions of noncitizens. Suspension of habeas corpus for suspected terrorists. The abrogation of attorney-client confidentiality. War has often brought about dramatic changes in the American mood, some of them magnificent, others not so pretty. Many people, this writer included, ardently support the current war against terrorism but are not willing to suspend our most cherished civil liberties, no matter what the current mood.
Rather, some of us, from all across the political spectrum, conservative and liberal alike, believe that the first priority of any American war must be to preserve, protect, and defend the Constitution of the United States. Not because the Constitution is a collection of nice sentiments but because it is the best system of government vet de- signed by mankind. It’s not only right, it works. If the history of our nation tells us anything, it is that we have paid a high price whenever we have interfered with the checks and balances so ingeniously devised by our Founding Fathers. This has been demonstrated over and over again from the first days of the Republic.
In 1798 fear of both the ideas and the military power projected by revolutionary France led President John Adams to push through Congress his ignominious Alien and Sedition Acts. Adams is rightly celebrated in David McCullough’s recent biography as one of the greatest founders. But the Alien and Sedition Acts were his worst moment, a move that could have strangled American democracy in its crib and robbed us of the whole immigrant experience. They gave the President the power to deport “dangerous” aliens, extended the naturalization process to no less than 14 years, and provided for jail sentences of up to two years and fines of up to $2,000 for anyone who spoke or wrote unfavorably about the President, or any member of Congress, “with intent to defame ... or to bring them . . . into contempt or disrepute.”
Before long, editors and even elected officials who backed Thomas Jefferson’s Republicans were fined or thrown into jail. One editor died there. A citizen was fined $100 for having expressed the wish that some cannon wadding would be “lodged in the President’s back-sides.” Congressman Matthew Lyon got four months for accusing Adams of possessing an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
None of this, of course, sank one French ship or uncovered one Jacobin agent. It did, however, nearly break the states of Virginia and Kentucky out of the Union in protest. Their insistence that the new acts were unconstitutional led them to the doctrine that some federal laws could be nullified by individual states—a significant first step down the long road to the Civil War.
The Civil War itself brought about what were probably the most extensive suspensions of civil liberties in American history. This is not surprising, considering that it was our greatest national crisis, and one cannot help feeling a certain sympathy—even a small, malicious glee—regarding some of the measures President Lincoln took to preserve the Union. After all, not only was about one-third of the country engaged in armed rebellion, but the North was swarming with active Southern sympathizers and vehement opponents of the war effort. A group of leading Wall Street financiers met every night, in a secret “gold room,” to bet the Union up or down. As early as 1 860 the mayor of New York, Fernando Wood, advocated that his city and Long Island secede and form a new nation to be called Tri-Insula. Mass rallies called for peace at almost any price.
By 1863 Lincoln had had enough. When Clement Vallandigham, a leading congressman from Ohio, clamored that the President was waging a “wicked, cruel and unnecessary war ... for the freedom of the blacks and the enslavement of the whites,” Lincoln had him banished and sent through the Southern lines.
It is difficult not to smile at Vallandigham’s plight. Yet in the early 1860s, as much as 10 percent of New York City’s entire adult male population was arrested, a great many of them for dodging the nation’s first draft and otherwise resisting the war effort. Many Americans considered the draft a violation of the Constitution, and they were further incensed that the law allowed rich men to buy their way out of service by paying for substitutes.
Again and again, antiwar demagogues artfully dodged the issue of preserving the Union while hammering home the idea that the Constitution was being torn to pieces. The building sense of outrage they helped create—along with wartime inflation and mounting labor unrest—finally exploded in the awful New York Draft Riots of July 1863, to this day one of the worst civic disturbances in our history. Some 115 rioters, police, soldiers, and bystanders were killed in a four-day pitched battle for control of what was then America’s largest city. Troops arriving straight from the battle at Gettysburg restored order to the city, but in order to quell the rioting, the New York City municipal government finally agreed to underwrite commutation fees for poor and working-class men.
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.
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.