Justice to Use FDR Precedent for Military Tribunals

Article excerpt

Byline: Frank J. Murray

The Bush administration says its plan to use military tribunals against terrorists has solid historic precedent, as Attorney General John Ashcroft prepares to defend the plan this week before the Senate Judiciary Committee.

Mr. Ashcroft is expected to face tough questioning from Democrats when he appears before the committee tomorrow, though Senate Majority Leader Tom Daschle, South Dakota Democrat, has signaled that he might be amenable to the tribunal plan.

In a talk show appearance Sunday, Mr. Daschle said, "Clearly there's at least the possibility that something like that might have merit."

One difficulty Democrats face in criticizing the proposal is that the Bush administration is using the example of a Democratic hero, President Franklin D. Roosevelt, to justify the use of military courts.

President Bush's description of Islamic terrorists with the legalistic phrase "unlawful combatants" last week showed how faithfully he tracks the path FDR trod to execute World War II saboteurs.

The phrase - which neither president used in their similarly worded orders authorizing military commissions - in a speech to federal prosecutors was lifted from the 1942 Supreme Court opinion that upheld FDR's authorization for military officers to try to condemn German civilians caught on a failed mission to sabotage U.S. war production.

Mr. Bush ordered a "military commission" to try conspirators and facilitators of 19 Islamic hijackers who brought down the World Trade Center and severely damaged the Pentagon by ramming the buildings with airliners crowded with passengers, nearly all of whom were civilians.

Mr. Bush's order is restricted to foreigners, but foreign civilians who violate the rules of war are subject to military justice as well. Among those who have are two of the eight German saboteurs convicted in 1942, and Dr. Samuel A. Mudd, convicted in 1865 as a member of the ring plotting President Lincoln's assassination. One difference, however, is that this time war has not been declared by Congress.

"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces," the Supreme Court conceded in approving the military's right to hold the eight saboteurs traveling as civilians.

"Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful," the court ruled in refusing the Germans any right to apply for a writ of habeas corpus on grounds their trial was unconstitutional.

The high court ruled the Constitution grants presidents the authority to hold such trials and that Congress had enacted laws to implement that authority. Tribunals set up under military commissions were first used by George Washington during the Revolutionary War, and currently are permitted under Article 21 of the Uniform Code of Military Justice, which also is Title 10 Section 821 of the U.S. Code.

The Senate Judiciary Committee wanted Mr. Ashcroft to testify last week, but he sent Assistant Attorney General Michael Chertoff in his stead - reportedly angering some Democrats on the committee.

Mr. Chertoff told the committee that federal courts repeatedly have endorsed the military tribunal concept, and he told the Senate that Mr. Bush will treat with fairness anyone accused.

Mr. Chertoff, head of the Justice Department criminal division, said it was no coincidence that Mr. Bush's order "in many respects is virtually identical" to language in President Roosevelt's July 1942 order and proclamation.

One key difference, he said, is that Mr. Bush "defines a class of defendants" for future and past crimes while Mr. …