May 31, 2002
BUSINESS AS USUAL :
Sam Smith at Progressive Review ran this yesterday, apparently as a part of the argument that using military tribunals in the fight against terrorism is abhorrent and un-American :Anti constitutional measures1776-81 - Revolutionary War. General George Washington ordered a military commission to try Major John Andre, a British officer accused of spying. Andre was convicted and hanged.
1798 - Sedition Act. Because war seemed likely between the US and France, Congress and President Adams passed an act designed to control pro-French troublemakers. The Sedition Act required criminal penalties for persons who said or published anything "false, scandalous, or malicious" against the federal government, Congress or the president. Twenty-five American citizens were arrested under the act, including a congressman convicted and imprisoned for calling President Adams a man who had "a continual grasp for power." The act expired in 1801.
1846-48 - Mexican American War. The US government used military commissions.
1861-65 - Civil War. President Lincoln proclaimed that all rebels and insurgents arrested within the US would be subject to martial law. About 4,000 people were tried by military commissions.
On September 24, 1862, Lincoln suspended the writ of habeas corpus for the first time in US history. Thereafter, Confederate spies, those aiding the rebel cause, resisting the draft, or "were guilty of any disloyal practice" were denied the right to be brought to court to determine if they were being legally held. Lincoln ordered that persons thus arrested could be tried and punished by military courts. In defending his action, Lincoln declared the regular civilian courts were inadequate during a rebellion and those opposing the Union endangered "the public safety." The necessary solution, Lincoln argued, was to suspend the writ and lock up the troublemakers until the war ended.
1866 - Lambdin P. Milligan was an Indiana lawyer who planned to lead a rebellion against federal troops. He was tried, found guilty, and sentenced to hang for inciting insurrection. Milligan appealed to the federal district court in Indiana claiming that he was being held illegally. The war ended before Milligan's sentence could be carried out, and his case eventually reached the US Supreme Court. In a unanimous decision, the court held that martial law should be confined to areas of actual war and that Milligan should have been tried in a regular court, not by military tribunal. The court declared: "The Constitution of the United States is the law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
1917 - Espionage Act. As the US entered WWI, this law was passed to prohibit all false statements intending to interfere with the nation's military forces or to promote the success of its enemies. Penalties of up to $10,000 and/or 20 years in prison were established for anyone attempting to obstruct the recruitment of men into the military
1918 - Sedition Act. Forbade any statements expressing disrespect for the US government, Constitution, flag, or army and navy uniforms.
1918 - Deportation Act. Congress authorized the deportation of any alien who: opposed all organized government (anarchism; advocated the overthrow of the government "by force or violence"; or belonged to any organization teaching these views. In response, Attorney General Palmer created an alliance with officials in the Bureau of Immigration to find and deport alien "reds." J. Edgar Hoover, Palmer's chief investigating officer, ordered Justice Department agents to go undercover and join suspected radical organizations.
1919 - Schenck v. United States, 249 U.S. 47. In 1918, Charles Schenck, general secretary of the American Socialist Party, was arrested and convicted for sending 15,000 anti-draft circulars through the mail to men scheduled to enter the military. The circular called the draft law a violation of the 13th Amendment's prohibition of slavery and urged draftees to "petition for repeal" of the draft law. The government accused Schenck of illegally interfering with military recruitment under the Espionage Act. Schenck admitted that he had sent the circulars, but argued he had a right to do so under the First Amendment and was exercising his freedom of speech. The US Supreme Court ruled that freedom of speech could be limited by the government - but only when there was a "clear and present danger" such as during war. Chief Justice Holmes wrote the opinion for the unanimous court, "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."
1920 - Palmer Raids. On January 2, Department of Justice agents in over 30 cities arrested between 6-10,000 people - often without arrest warrants. The raiders seized political literature, membership cards and lists, organization records, and other papers. Very little evidence of revolutionary or criminal activity actually turned up. Days after the raids, thousands of aliens were still being held without formal charge, without bail, without the assistance of a lawyer and in many cases, without family or friends knowing where they were. Due process rights did not apply to these criminal arrests. Instead, the judgment to deport or not deport an alien was made by an immigration inspector in a secret hearing.
1941-45 - World War II. During the war, the federal government imprisoned 120,000 Japanese in internment camps. At the end of the war, the US armed forces conducted military tribunals to try some 1,600 persons in Germany and nearly 1,000 Japanese military personnel accused of committing war crimes.
1943 - Ex Parte Quirin. The most famous case involving military tribunals occurred in 1942 when a U-boat landed 8 German soldiers on Long Island, New York whose mission was to sabotage U.S. defense factories. The operation failed when two of the men defected and informed authorities. The FBI arrested the saboteurs and turned them over to the U.S. military for trial. Shortly after the arrest, President Franklin D. Roosevelt authorized the use of military tribunals for trying those who entered the country to commit sabotage. Within a month, all 8 were tried and found guilty. Six were sentenced to death by electrocution, and the two defectors were sentenced to prison. The defendants appealed to the US. Supreme Court claiming that under the Milligan decision, they should have been tried in an open U.S. court. The court denied the appeal, ruling that the saboteurs were belligerents (enemy soldiers at war), who because they had entered the country out of uniform to conduct sabotage, had violated the law of war. They were not entitled to the status of prisoners of war or to the protections under the Milligan case, which only applied to non-belligerents not associated with the enemy.
1949 - Terminiello v. Chicago, 337 U.S. 1. In the late 1940s, Arthur Terminiello spoke before an audience in Chicago where he said that Hitler had been right in WWII and that Democrats, Jews, and communists were all trying to destroy America. He was later arrested, tried, and convicted for disturbing the peace with his provocative harangue. In his appeal to the US Supreme Court, he claimed that he should not have been arrested since his speech was protected by the First Amendment. The city of Chicago, however, argued that the things Terminiello raved about in his speech so angered people that a "clear and present danger" to the safety of the community had occurred. The Supreme Court reversed the opinion, with Justice William O. Douglas writing that "freedom of speech, though not absolute, is protected against censorship or punishment unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest."
1956-71 - COINTELPRO. The FBI's "counterintelligence program" began out of frustration with US Supreme Court rulings that limited the government's power to proceed overtly against dissident groups and ended with the threat of public exposure. COINTELPRO, according to the report of the US Senate's Select Committee to Study Governmental Operations, allowed the FBI to conduct "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech
and association, on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security and deter violence."2001 - The "War on Terrorism." After the events of September 11th, the Bush administration adopted three endeavors designed to aid the government in its response to terrorism.
October 25 - USA Patriot Act. Created a broad new definition of "domestic terrorism" that includes aiding terrorists; relaxes many rules that protect people suspected of crime from unfair investigation and prosecution; and greatly expands the government's power to conduct searches of the premises and property of citizens and aliens without informing them and without a warrant. October 31 - DOJ announcement of "monitoring" lawyer/attorney conversations. The DOJ has the authority to
monitor conversations between detainees and lawyers while they are planning their defense whenever the attorney general believes "there is a substantial risk that such conversations could facilitate terrorism by passing on information or instructions." The detainee and lawyer must be advised that their conversation will be overheard (except when a judge permits secret monitoring) and the monitoring must be conducted by a special DOJ team whose members are directed not to divulge to those actually prosecuting the detainee any part of the conversation that would be covered by the traditional lawyer-client privilege.November 13 - Executive Order for Military Tribunals. Any non-US citizen the President declares to be a suspected terrorist - aliens residing in the US for many years as well as soldiers captured in combat in Afghanistan - may be tried at his sole discretion by a military tribunal rather than in an ordinary criminal court. Such tribunals may
be secret, would be governed by special rules laid down by the secretary of defense, and will include the following provisions: the ordinary
rules of evidence would not apply; the tribunal might declare a defendant's guilt even though not satisfied of his guilt beyond a reasonable doubt; its verdict, including any death penalties it might order, could be taken by a 2/3 vote of its members; and the defendant has no right to appeal.
Not being the sharpest tool in the shed, I actually understand this list to show that the measures being undertaken are completely consistent with our history and offer little cause for worry, since that history shows that these kinds of measures are always temporary. Perhaps I missed something? Posted by Orrin Judd at May 31, 2002 12:57 PM