I was intrigued with Kevin Baker’s “War and Our Freedoms: The Trouble With Military Tribunals,” which appeared in the April/May “In the News” column. Here is a different view that I hope you will consider publishing.
The War of September 11 has yet again raised tensions between American security and liberty. It has not been the first time. The use of military tribunals rather than the normal justice system occurred, for example, during the Revolution, the Mexican War, the Civil War, and both world wars. Yet questions remain about the degree to which terrorists—known as “unlawful combatants” in legal jargon—are entitled to legal protection.
Abraham Lincoln suspended the writ of habeas corpus and authorized such forums to try terrorists because the tribunals could act quickly, gather intelligence through interrogation, and keep potentially lifesaving information from becoming public.
Historically, military commissions during wartime began as traveling courts when there was a need to impose quick punishments. Such commissions do not enforce national laws but a body of international law that has evolved over the centuries. Known as the law of war, one of its fundamental axioms is that combatants cannot target civilians.
It is clear that the September 11 terrorists and detainees, whether apprehended in the United States or abroad, are protected neither under America’s criminal justice system nor under the international law of war. Terrorists are not members of an organized command structure with someone responsible for their actions, they do not wear the military uniforms that would permit the other side to spare civilians without fear of counterattacks by disguised fighters, they do not carry arms openly, and they have no respect for the laws of war. Moreover, American courts have been reluctant to second-guess the President on when commissions are justified. During the Lincoln administration the Supreme Court ruled it had no jurisdiction over a military tribunal.
Abraham Lincoln’s actions may help explain the curtailment of civil liberties in dealing with such unlawful combatants. “No president before or since has pushed the boundaries of executive power so far into the legislative sphere as he did,” writes the historian Wilfred E. Binkley. “No one can ever know just what Lincoln conceived to be the limits of his powers.” He proclaimed a blockade, increased the size of the regular Army, and authorized the expenditure of government money without congressional appropriation. As Jay Winik, the author of April 1865 , describes it in The Wall Street Journal , “The President suspended the writ of habeas corpus and subjected ‘all persons discouraging volunteer enlistments’ to martial law. To enforce this decree, a network of provost marshals promptly imprisoned several hundred antiwar activists and draft resisters, including five newspaper editors, three judges, a number of doctors, lawyers, journalists and prominent civic leaders.” During the Civil War the Union army conducted at least 4,271 trials by military commission, reflecting the disorder of the time.
Lincoln answered his critics with a reasoned, constitutional argument. A national crisis existed, and in the interest of self-preservation he had to act. At the same time he realized Congress had the ultimate responsibility to pass judgment on the measures he had taken. He found the right of self-preservation in Article II, Section 1 of the Constitution, requiring the Chief Executive “to preserve, protect and defend” it, and in Section 3, directing him to “take care that the laws be faithfully executed.”
The whole of the laws that were required to be “faithfully executed” were being defied in nearly one-third of the states. The question Lincoln asked is this: ”. . . are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”
On the other hand, at the same time Lincoln took audacious steps against lawless rebels, he took equally bold and innovative steps to uphold and expand international law. The Lincoln administration commissioned Francis Lieber, a Columbia College professor, to draft a code of the laws of war. As a result of his efforts, Lieber is considered the founder of the modern law of armed conflict, and his work became the basis of The Hague and subsequent Geneva conventions to which the United States is a signatory. In 1863 Lieber forthrightly advised the President and the Union army that guerrillas, spies, and saboteurs could be summarily shot.
Lincoln survived the stern measures he initiated because he knew he had the support of Congress and the people. When normal times returned, so did every civil liberty. The verdict of history is that Lincoln’s use of power was not abuse.
If it appears that the Bush administration is confounded on the use of military tribunals and in classifying prisoners as either prisoners of war entitled to the rights under the Geneva Convention or unlawful combatants who are entitled to no rights at all, it may be helpful to read the epilogue in Mark E. Neely, Jr.’s The Fate of Liberty : “The clearest lesson is that there is no clear lesson in the Civil War—no neat precedents, no ground rules, no map. War and its effect on civil liberties remain a frightening unknown.”