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In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves.
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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:
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?