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Special Report
Survival First, Lawfare Second: The Perils of Suicide-Pact Legalism
In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves.
(Page 2 of 5)
Lincoln later imprisoned Union antiwar “Copperhead” leader Cornelius Vallandigham in 1863. This undercut the Copperhead push for a compromise peace that would have permanently sundered the Union. Vallandigham was convicted in one day, by a military commission applying martial law to a civilian. Lincoln defended this action by stating, “Must I shoot a simpleminded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?” In March 1863 Congress passed the Habeas Corpus Act, ratifying Lincoln’s decisions while adding limited protections for those detained.
Perhaps the capstone case in the Civil War and its immediate aftermath was the military commission treason trial of Indiana Copperhead Lambdin Milligan. In Ex Parte Milligan (1866) the Supreme Court granted a writ of habeas corpus to free Milligan from military prison, on the grounds that as a civilian he could not be tried in a military court in a non-combat zone, given functioning civil courts there. The Supreme Court has not to date fully accepted former President Bush’s stance that today’s combat zone includes the entire United States.
World War II saw the landmark Korematsu v. United States (1944) addressing the internment of 112,000 Japanese-Americans denied individual trials, in detention camps away from the West coast’s concentration of war industry and military facilities. Sporadic Japanese raids on targets in California, Oregon and Alaska had heightened official anxiety.
Fred Korematsu’s conviction was overturned in 1983, and compensation paid survivors and families. Few defend the decision today. Noteworthy in Korematsu is dissenting Justice Frank Murphy’s footnote detailing how England in World War II created 112 alien tribunals to hear 74,000 individual cases involving German and Austrian nationals residing in England, detaining only 10,000. Murphy’s reference implies that the United States could have held individual hearings too.
Most of the foregoing episodes are well known. But consider a little-known tale from World War II, told in A Man Called Intrepid, the 1976 book about Sir William Stephenson, the secret envoy between President Franklin Roosevelt and British Prime Minister Winston Churchill, and thus privy to many a dark secret.
In the spring of 1941 a desperate drama unfolded, beginning with the May 21 breakout of the German battleship Bismarck into the North Atlantic, leaving all shipping at risk. Churchill alerted FDR, warning that the super-ship and the heavy cruiser Prinz Eugen, both spotted off the coast of Norway, “could alter the whole course of the war.”
The Brits sent a veritable fleet plus several squadrons of airplanes to go after Bismarck. But they were to obtain the help of America, too — without which the ship might have made it safely to a port in occupied France and taken shelter under air cover. On May 22 Bismarck engaged two British battleships, damaging Prince of Wales and sinking the best Brit ship afloat, the celebrated Hood, with a direct magazine hit; the ship sunk in three minutes with all but three of 1,400 hands. FDR remarked, when told: “The Hood sunk? It’s the end of ‘Rule Britannia.’” The huge warship slipped her pursuers and was not located for 30 hours. It was spotted by a Coast Guard cutter, nearing France; a PBY Catalina reconnaissance plane then took off from Scotland with a mixed British-US Navy crew and fixed Bismarck’s position. On May 27 the great ship was sunk off France’s Atlantic coast.
America was legally a neutral, yet directly aided a combat operation. Members of the plane that fixed the ship’s position, sealing its fate, were American, operating under direct authorization from the President of the United States. Reconnaissance information was communicated to the British, enabling their ships to corner and sink the Bismarck. Germany did not go to war, officially, with America until after Pearl Harbor, which was bombed December 7, 1941. More than months before we were at war with Germany we committed what normally is considered an act of war.
FDR understood the implications, asked adviser Robert Sherwood on May 24: “Suppose the Bismarck does show up in the Caribbean? We have some submarines down there. Suppose we order them to attack her and attempt to sink her? Do you think the people would demand to have me impeached?”
Commanders in chief must make messy choices of the kind that make lawyers, by their training, temperamentally inclined to decline legally risky courses of action. Thus in 1940 Churchill had advance warning from code-breakers that the Germans were going to bomb Coventry. Lacking a cover story to explain how, without code breaking, England could have learned of the raid Churchill remained silent, and hundreds of innocent civilians perished. The benefit of continuing to use Enigma code to strategic advantage was too great, and in Churchill’s war calculus justified the wrenching sacrifice. Thus Churchill’s famous dictum, “In war truth is so precious she should always be attended by a bodyguard of lies.”
Historian Arthur Herman, writing on Guantanamo detention in Commentary, recounts senior policy advice offered during an episode regarding sending a terrorist to foreign soil for interrogation, the practice called “rendition” invented during the Clinton administration:
According to Richard Clarke’s memoir, Against All Enemies, Vice President Al Gore cheered them on. Clarke tells the story of Gore coming to a 1993 NSC meeting where the idea of “extraordinary rendition” was proposed. While White House Counsel Lloyd Cutler had his doubts, Gore had none. “That’s a no brainer,” Clarke says Gore declared, “Of course it’s a violation of international law. The guy is a terrorist. Go grab his ass.”
Perhaps wisest of all among Supreme Court Justices as to national security matters was Robert Jackson, whose tenure encompassed the Second World War and the Korean War. Dissenting in a 1949 free speech case, Terminiello v. Chicago, Justice Robert H. Jackson wrote these oft-quoted words:
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Jackson had offered such practical wisdom in Korematsu, dissenting from the Court’s upholding of wartime detention of Japanese Americans, explaining why the Court would have been better advised to stay out of the internment case entirely:
About the Author
Letter to the Editor View all comments (48) | Leave a comment
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Andrew B| 3.26.10 @ 7:59AM
If our government is to be consistent, it should track down the families of the Nazi saboteurs we executed in World War 2 and, at the very least, offer them a formal apology. Perhaps we should throw in some sort of financial restitution.
If such treatment of enemy combatants is too terrible to contemplate today, surely it is a stain on our national honor.
I wonder if Major Andre or John Wilkes Booth have any living descendents. What can we offer them...
Alan Brooks| 3.26.10 @ 11:14AM
'[...] John Wilkes Booth have any living descendents. What can we offer them...?
Acting contracts for the next two Michael Moore flicks, 'Fahrenheit 1865' and 'Bowling for Columbia'
Liberal Reader| 3.26.10 @ 8:02AM
Ronald Reagan trumpeted America's willingness to give terrorists a fair trial as a sign of this country's great strength. George W. Bush's administration presided over the trials of more than 100 terrorists in federal courts.
Trying criminals is something federal courts do remarkably well. Incarcerating criminals is something federal prisons do remarkably well.
Terrorists are not warriors or soldiers. They wish to be regarded as such, but there are few people -- here or abroad -- who actually consider them to be warriors or soldiers. They are dangerous criminals.
To be sure, terrorism represents a threat to society unlike the threat of its nearest criminal cousin -- organized crime.
The government must be empowered to act more aggressively against potential terrorist acts, before they occur, than it is against other kinds of crime.
For this reason, the metaphor of "war" is probably not all that terrible. It helps us understand that the government is going to need unusual powers with respect to detecting and arresting terrorists, and we need to go against our good American instincts and give the government those powers. I freely admit that people on the left -- including myself -- were to jumpy when it came some of the measure the Bush administration put into place to fight terrorism.
But when we catch a man with a bomb in his shorts, and the criminal conspiracy is exposed, there is not better place for that man than federal court, facing criminal charges. Let him have his lawyer. Remember, extending him rights is FOR US, not for him, and such an extension shows the world our strength, like Reagan said it does.
Jeff| 3.26.10 @ 3:29PM
Liberal Reader,
Your response is nothing but liberal rhetoric. Regan may in fact have said that - he was a politician - the difference is that he would never would have done it. Answer this question: what would you do if you were called to jury duty for the trial for KSM and Osama Bin Laden issued the fatwa as noted by the author, that the Jury and their families be killed. Would you have the fortitude to risk your life and the lives of your family members or would you find a way to get out of jury duty so that someone else would have to make that awful decision? The loyal readers of this site know what you would do! Do us all a favor and put your head where it belongs, a place where it will do the most good for the American people - in the sand! By the way, Al-Qaeda doesn't kill by just putting a bullet in your head, they like to torture you fist so that they can watch you suffer.
Alan Brooks| 3.28.10 @ 1:07AM
"[snip] nothing but liberal rhetoric."
Liberal Reader is merely gullible; pure rhetoric isn't rhetoric if it is sincere.
The great flaw of liberalism is also the main flaw of utopian conservatism: naivite'.
John Wohlstetter| 3.31.10 @ 11:20AM
Liberal Reader -
Giving due process rights to common criminals is indeed, as you put it, something we do for US. But giving more legal rights to unlawful combatants in this war than we gave lawful combatants in prior wars is doing something for THEM. What incentive does anyone have now to fight lawfully against Americans, if they face no legal penalty for fighting unlawfully?
JW
Melvin| 3.26.10 @ 8:18AM
You know as an Marine Infantryman, I did not want to place an additional burden upon those Marines that I was responsible for with legal bull squeeze that changes with whomever is sitting on the throne in Washington D.C.
On the battlefield time is not a luxury to thumb through annals of law books, or call the local JAG if it was OK to shoot back as someone who was shooting at us.
At a Grunt's leve,l we hope to hell that all this legal crap is settled by the suits long before they send us into combat an not while the shooting is in progress.
It is easy for attorney's in their Armani's diligently debating in nice climate controlled court rooms for a more humane way in dealing with the bad guys. This legal bloatavating is not conducive to the moral and welfare of our fighting forces in keeping us from getting ate alive by RPGs.
When my platoon went into combat during the first Gulf War we were explained the laws of war, and how we were to conduct ourselves in combat and meeting with the enemy.
These were simple, easy to follow and didn't get Marines killed needlessly because they hesitated for fear of being prosecuted by the very government that place in into harms way to begin with.
When our fighting men and women are in the midst of a heated exchange of gunfire with the enemy is so much to ask for, that government bureaucrats please, !S T A Y T H E H E L L O U T O F T H E W A Y!
Alan Brooks| 3.26.10 @ 11:08AM
And notice, when someone's close relation or friend gets murdered, all of a sudden a defense attorney isn't necessarily a good guy anymore.
Like, even when a liberal gets mugged...
Tim| 3.26.10 @ 2:52PM
If someone breaks into my house in the dead of night, I sure as hell hope my call for help is answered by a man like Melvin.
Margie| 3.27.10 @ 5:02PM
I second that emotion.
Hamish Stewart| 3.26.10 @ 10:08AM
It is unfortunate that in your interesting article you should have repeated the canard about Churchill having known about the German intention to bomb Coventry. This claim has been absolutely refuted by all reputable historians of the Second World War including all the specialists in the use of Ultra during that war. I suggest you read the appropriate volume of the Offocial british History of Intelligence in the Second World War.
John Wohlstetter| 3.31.10 @ 11:31AM
Mr. Stewart -
My source for the Coventry story is "The Ultra Secret" by F.W. Winterbotham (1974), written by the intel officer who first revealed the Ultra story, in which he had been part in WW-II.
JW
Tim| 3.26.10 @ 2:50PM
We have armies because there comes a time where talk and fair play no longer make sense.
Some of you are fine with subverting the constitution for the sake of universal healthcare, but outraged over "enhanced interrogation.
Drew| 3.26.10 @ 3:27PM
Are you seriously arguing that because there was ONE U.S. serviceman onboard an RAF reconnaisance plane, (that helped the Royal Navy sink the Bismarck in 1941)- that we should junk the whole concept of Habeus Corpus?
You know - Habeus Corpus - probably the single most important legal doctrine to arise in the past thousand years or so, at least when it came to promoting a just balance between the rights of individuals and the power of the state.
What the hell are you smoking?
Nick| 3.26.10 @ 7:09PM
Hey, it's Drew, everybody! The Molech worshiping "progressive" troll.
John Wohlstetter| 3.31.10 @ 11:12AM
Ken -
Thanks much for your comments. I am glad you liked my article. I think that Pres. Obama got his worldview not as a child in Indonesia, then a place of moderate Islamic presence. Rather, it came from his radical connections in school & then in Chicago.
JW
John Wohlstetter| 3.31.10 @ 11:17AM
Drew -
One person is all it takes re FDR role from a legal standpoint. Re Habeas corpus, I regard, for reasons noted in my article, the Supreme Court's ruling as based upon a bending of the concept of sovereignty. The dissenters in the 2008 case cited a 1950 case, Johnson v. Eisentrager, that should have been controlling precedent in the case decided in 2008.
JW
Nick| 3.26.10 @ 7:23PM
I get frustrated whenever I read a column like this.
I am reminded of a story we are all familiar with, but of which not many know the details. The trial of Maj. Andre. I didn't know anything about it until a few years ago. I encourage you to look it up.
Maj. Andre was the cheif intelligence officer for the C. in C. of the British forces. He was caught, out of uniform, with the plans for West Point, given to him by Benedict Arnold. This was a violation of the Laws of War, drawn up by the Continental Congress.
Maj. Andre was caught, interrogated, held, charged, tried, convicted, and executed in TEN DAYS!
Gen. Washington even tried to trade Andre for Arnold during this time, but failed. Maj. Andre was an Officer and a Gentleman, not a lowlife terrorist, and he was still hanged in public.
This is what should've happened to all unlawful combatants, especially Saddam.
If it was good enough for the Father of Our Country, it's good enough for me.
Margie| 3.27.10 @ 3:29PM
Washington was a righteous man. I share in the longing for righteousness in the hearts of our leaders like you do. I think that's why we are told to pray for our leaders in the Bible. To me, with the present crop of leaders and their blatant Socialistic and really, Fascistic policies and methods of "leading" us, it is easier said than done, but pray we must. I pray they have a change of heart (and mind) and turn for their ways.
That said, I fully agree with your post. If it was good enough for General Washington, it's good enough for me.
Margie| 3.27.10 @ 3:37PM
* s/b turn from, not for, their ways!
John Wohlstetter| 3.31.10 @ 11:28AM
Nick (& Margie) -
Major Andre was not a terrorist member of a group seeking WMD to use against us. The Father of our Country lived at a time when gunpowder was the biggest threat from weapons we faced. Intel we gleaned from detainees told us more about al-qQeda than we had ever known before, yielding almost all the useful intel about the group's inner workings that we now have.
I refer you again to the quotation in my article from Federalist 41, on wars and the Constitution, from James Madison, Father of the Constitution.
JW
Nick| 4.4.10 @ 1:00AM
Mr. Wohlstetter,
Thank you for your reply.
It is the facts of your article that frustrate me, not the article itself. How our courts can be used in this way boggles my mind.
My point was, yes, Maj. Andre was not a terrorist. He was an Officer and a Gentleman. He was the head of British intelligence. Gen. Washington was a big believer in intelligence and spycraft. He knew the importance of Andre's capture.
But, Maj. Andre broke the Laws of War. He became an unlawful combatant the minute he put on civilian clothes. He was hanged like a criminal, even though he requested to be shot. like a soldier should.
Even though Andre was a treasure trove of intel. He was the equivalent of capturing Ayman al-Zawahiri, al Qeada's #2. Gen. Washington was even willing to trade Andre for Arnold.
Also, in preparation for Operation Overlord, the British took all the German spies they had captured, and told them they would be tried the next morning and shot, if they did not agree to help them deceive German intelligence.
Why didn't we at least do that?
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Ken (Old Texican)| 3.27.10 @ 7:26AM
John C.
Excellent article, and an extremely well constructed argument. Thank you for the effort that went into it.
I lived and worked all over the middle east, and my responsibilities required a LOT of interface with the rulers and their "aristocracies" for lack of a better term.
I think I have a pretty good first hand understanding of how they think...and act...in their own "Uhma" (sp?) and out of it in Europe and America.
Their world views are absolutely "Klingon" to ours to use Tom Clancy's term.
First, they have that little "shrug" palms up, when they state from the heart..."I am merely a slave to Allah".
Second, everything ...everything ...is hierarchical in interpersonal relationships. (You are above me, or below me.)
Heh, I managed to remain "above" them, in the sense that my men and I could accomplish stuff they simply were incapable of doing for themselves.
Third, historically, their civilization has grown in such absolutely destitute circumstances, that simply picking up trash along the side of the street, can result in one's hand being chopped off for theft.
(That trash might be someone's evening cook-fire fuel.)
.....just a few of the reasons that make me conclude that they do the muslim equivalent of ROTFLMAO when we even discuss...constitutional rights or protections...for captured "warriors".
Sir, the harsh question that must be asked:
Is Mr. Obama possessed of those world-views/interpersonal views from his earliest days in that culture?
Thoughts?
Nick| 3.27.10 @ 8:51AM
Ken,
Is that why there is garbage in the streets of their towns? I've been wondering about that for almost 20 years!
I was in Saudi and Iraq for Operations Desert Shield and Storm. Every time we drove through some town out in the desert, it had garbage piled up on the outskirts, and trash in the streets.
Jubayl and Dhahran were clean by comparison. If you don't count all the sand in the roads.
Thanks for solving that mystery!
Margie| 3.27.10 @ 5:01PM
Ken,
I learn so much from your posts and I so appreciate you for who you are, and what you've done. You really bring a lot of wisdom to us here.
My thoughts on your question about Obama and his outlook are that yes I think he possesses Muslim views from his youth, though I know not how deeply. But since the Bible says that, "for out of the abundance of the heart the mouth speaks" (Lk. 6:45) and since he said he would stand with his Muslim brothers, (he did say that, didn't he?) and since he has been clear that he bows to leaders who are not our friends (Saudi Kings and Communist Chinese leaders), yet has no problem snubbing our friend and ally, (Israel's Bibi Netanyahu), what are we to think?
When he says blatantly that he believes that our Constitution is OBSOLETE and sets forth to destroy it by replacing our free market system with takeovers and Socialized medicine in order to do the Marxist redistribution of the wealth of our citizens, what are we to think?
He cannot be defended by any right thinking human being.
The only question I have left is: what's next?
Ken (Old Texican)| 3.27.10 @ 8:06PM
Margie, thank you.
To answer your really pretty "zeroed in" question, let me answer this way.
We have read and heard about "obstructed elections" in November. Heck, I have expressed the same fears.
I think we must seriously consider "October surprises" from the communists, (pardon the shorthand).
I am thinking about a "September Surprise" for them....ie: the national sit-down strike by productive people you have read me write about.
Yeah, it would cause a hardship for each of us. Might screw up our respective credit ratings etc.
I am going to sit down with my employees next week and poll them on how long they could "defer paychecks" before it really bites.
See, that way we interrupt the "cash flow" to the gubmint, reminding them not to screw with the elections.
Can you imagine if 50 million one-month withholding deposits on W-2s across the country...delayed...or simply foregone ...happened?
heh 1/10th of the gubmint's cash.....just doesn't show up.
I will post this again Monday, to see if we can get some traction on the idea.
Best regards
Ken (Old Texican)| 3.27.10 @ 9:20AM
Nick,
I think the larger cities may have (finally) "authorized" specific persons to collect trash.
Also another thought. A "slave" doesn't even see trash, and poor "TRASH" don't even see the rusted out cars in front of their house.
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Active Duty| 4.7.10 @ 11:54AM
Solution:
Close Gitmo...Release all terrorists...Drop them off in the desert...Have CIA operative or Marine Recon call in potential terrorist targets...send drone and eliminate targets
We do this everyday. Judge, Jury, Executioner