February 13, 2004
TRY THEM UNDER RULE 303:
A Familiar, Thorny Record Of Wartime Justice (Michael Dobbs, February 8, 2004, washingtonpost.com)
There are few more difficult issues for a democracy than how it metes out justice to its enemies in time of war. Over the coming weeks and months, as the Supreme Court hears a series of challenges to the Bush administration's proposed use of military commissions to try suspected terrorists, we will become spectators to an extraordinary constitutional drama.For a preview of how the action is likely to unfold, consider what happened the last time the play was performed, 62 years ago. The setting: wartime Washington. The leading characters: a president determined to make an example out of a group of captured saboteurs; a gritty, Army-appointed defense lawyer intent on doing the best he can for his unpopular clients; nine Supreme Court justices struggling to balance the competing demands of law and war. These characters -- like their modern-day counterparts -- epitomized the American justice system to the rest of the world, and history has delivered a mixed verdict on their performance.
I became fascinated with the case of the Nazi saboteurs (who traveled to America by U-boat with the aim of blowing up factories, bridges and department stores) at about the time the planes crashed into the World Trade Center and the Pentagon on Sept. 11, 2001. The more I delved into the archives, the more I was struck by the parallels between then and now. When President Bush decided, two months after 9/11, to emulate President Franklin D. Roosevelt and establish military tribunals for alleged al Qaeda operatives, history appeared to be repeating itself. [...]
Views about whether justice was served in the saboteur case have veered back and forth, depending on whether America is at war or at peace.
There's a threshold question to be answered here: why would a democracy apply its internal standards of justice to the enemy in a time of war? What useful purpose does that serve for the citizenry? Posted by Orrin Judd at February 13, 2004 2:07 PM
Appreciate the Breaker Morant reference. That's class.
Posted by: Mike Morley at February 13, 2004 3:14 PMI dunno, but a better question is why it applied them to its friends.
About 99% of all military tribunals were held in Hawaii. It was a profit center for the Army, which controlled the islands by martial law during most of World War II.
In theory, jaywalking was a capital offense, and although no one was actually executed for jaywalking the actual behavior of the Army was atrocious.
Nothing compared to the Japanese army, but you only have to cross the line, you don't have to run the entire race.
You'd think a nation with as many lawyers as this one has could get it straight.
Posted by: Harry Eagar at February 13, 2004 4:06 PM