This Op-ed ran in the Daily Hampshire Gazette on Wednesday, May 8. 2002

Wednesday, May 8, 2002 -- There are three kinds of justice. The first is for people like "us," who are entitled to a full and fair trial with equal justice under law.

The second is for "them," people guilty of such awful offenses that they deserve no trial at all. Them we would lynch, if we could.

The third is for people we would like to lynch, but can't, because that would be embarrassing. For them we must pretend to have a fair trial, but rig the proceedings so as to assure a conviction without the possibility of appeal. Such is the function of military tribunals, which Supreme Court Justice Frank Murphy associated with "judicial lynchings."

Military tribunals are not for "us." They are for "them." That is why President Bush's ad hoc tribunals would not follow federal rules of evidence or the Uniform Code of Military Justice. Nor would they live up to the promise of "equal justice under law," carved above the Supreme Court's door.

The test of any system of justice lies in how fairly it treats the most despised defendants. Thus John Adams chose to defend British soldiers charged with the Boston Massacre. Although a revolutionary himself, he insisted that the hated Redcoats be treated as "us," not "them."

Such integrity - and courage - is in short supply today. Under the Pentagon's new rules, alleged terrorists and war criminals would not be tried by an independent judge and jury, but before a tribunal of the army that captured them, which is like having policemen judge persons charged with killing cops.

The administration now promises to prove each non-capital case "beyond a reasonable doubt" - but only to two-thirds of the tribunal. The remaining third can insist the defendant is not guilty without casting any doubt on the majority's judgment. The Defense Department also insists that an acquittal need not result in the prisoner's release. How's that for doublethink?

Under the new rules the president would still serve as the ultimate appellate authority, even though his prejudicial statements about the prisoners, broadcast on television, would make him legally unfit to serve on a jury.

Most members of Congress are too frightened by Bush's popularity to challenge his authority, but where does his alleged power to create tribunals come from? Not the Constitution. Article III clearly states that "the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish." Congress has not "ordained and established" these tribunals, and there is nothing in the Constitution to suggest that the president may create courts on his own.

The best the president's lawyers can do is cite a couple of Supreme Court decisions from World War II. Both held that U.S. military commanders have some sort of extra-constitutional power derived from old "common law" of war to try enemy captives in ad hoc tribunals. The use of ad hoc tribunals as an alternative to courts-martial had been acknowledged by Congress, the court claimed, ignoring the fact that at no time did Congress actually establish such tribunals, specifying their rules of evidence, proper procedures, or defendants' rights. Dubious reasoning, to be sure, but clear precedent - if followed today - for legal lynchings.

In Ex parte Quirin, eight German marines admitted that they had been put ashore from German submarines with orders to commit sabotage. One, with the consent of another, went to the FBI and turned the group in. At trial it became clear that most of defendants had little desire to sabotage anything, but were vaguely hoping to return to civilian life. Despite this evidence, all were sentenced to death. None was represented by civilian counsel. All were denied the right to appeal the fairness of their secret trial, and all were condemned by military officers who didn't know much law, but clearly understood what was expected of them. Their job was not to try each defendant as an individual, but to send the German government a message.

By contrast, Americans who harbored these marines, knowing their mission, escaped execution because they were tried in civilian courts as "us," not "them."

In the second case, a Japanese general was sentenced to death by a tribunal for war crimes he did not commit, did not order and could not have stopped had he known about them. Had he been an American, like those under whose command the My Lai Massacre occurred, General Yamashita would never have been tried.

The Bush administration cites these legal lynchings as "authority" for the tribunals it now plans. But the Supreme Court never considered whether the defendants had been lynched, any more than it questioned the incarceration without trial of 120,000 law-abiding persons of Japanese ancestry. It simply held that battlefield commanders could convene drumhead courts to try illegal combatants and war criminals because they had done so in olden times.

Which raises the question: Why should we follow these cases today? Why should an arcane doctrine of common law be allowed to override the Constitution with its elaborate system for restraining arbitrary power? Aren't lynchings, legal or otherwise, supposed to be a thing of the past? Do we really want to give up the right to protest such tribunals when they are used against Americans in foreign lands?

The president's lawyers know they are on thin ice to cite such cases. That is why they plan to hold their trials in Cuba, where their legality cannot be challenged. They think they are clever. John Adams would not be impressed.