Should terrorists be tried before military tribunals – secretly, and without the constitutional rights and guarantees to legal counsel, habeas corpus, burden of proof and judicial review?
All this is permitted in George Bush's anti-terrorism legislation (i.e., "USA PATRIOT").
Legal precedent for this legislation has been cited repeatedly, both before congressional committees and in media reporting and commentary. In particular, it has been noted that Abraham Lincoln suspended habeas corpus during the Civil War, and that FDR approved the trial of German saboteurs before a military tribunal – a policy that was affirmed by an 8-0 decision of the Supreme Court, in a case named
ex parte Quirin.
In the December 10, 2001 issue of
Newsweek, Stuart Taylor Jr. writes:
Bush's proposed military tribunal has its roots in historical and legal precedents that condone treating enemy spies and infiltrators as "unlawful belligerents," and that give the government virtually unlimited wartime power to detain and deport non-citizens suspected of subversive activities.
Then, Taylor give us this simple and straightforward account of the oft-cited
In 1942 eight Nazi spies arrived on the East Coast with the mission of committing mayhem and murder.
They were quickly caught. FDR ordered them tried in a special military tribunal, and six were executed. In an 8-0 decision, the Supreme Court upheld the tribunal, a precedent Bush's lawyers have used to bolster the legitimacy of any new military courts. (My italics – take note. EP).
Taylor, along with virtually all reporters, commentators, Senators and hearing witnesses, fails to mention that this case was one of the most despicable miscarriages of justice in the history of Federal jurisprudence. Far from serving as justification-through-precedent of the "USA Patriot Act,"
Quirin should more appropriately stand as an ominous warning.
The crux of this incident turns on that simple sentence,
"[The saboteurs] were quickly caught."
The J. Edgar Hoover/FBI version is that the saboteurs were "caught" as a result of diligent and professional investigation by the FBI – "the detective work of the century," as Hoover proclaimed.
In 1980, thirty-eight years after the event, a very different story emerged, thanks to the (late and lamented) Freedom of Information Act and the persistent research of the late Seth Kantor of the
It turns out that the reason that the saboteurs were "quickly caught," was that one of them, Ernest Peter Burger, deliberately betrayed the plot at the outset and another, George Dasch, reported the plot to the FBI at his first opportunity.
Upon landing on Long Island from a German submarine on June 12, 1942, Burger left evidence on the beach with the clear intention that it should be discovered and lead to the saboteurs. When approached on the beach by a Coast Guard patrolman, John Cullen, Dasch disobeyed orders that witnesses be silenced and instead sent Cullen safely on his way, with a promise that he, Dasch, would contact the FBI and tip off the plot.
As good as his word, the very next day Dasch phoned the FBI, stating that it was urgent that he speak with J. Edgar Hoover directly. Later that week, after informing Burger of his plans, Dasch traveled to Washington to press his case to the FBI. Eventually he convinced the Feds, and thus the lives of hundreds of American citizens may have been spared. Both Burger and Dasch claimed that while in Germany they had no intention of engaging in sabotage, but instead had regarded the operation as an opportunity to escape to America. That claim
was supported by their behavior which immediately followed upon their setting foot on Long Island.
As a reward for their conscientious acts in behalf of the American war effort, Ernest Peter Burger
and George Dasch were condemned to death – sentences commuted, in Burger's case, to life imprisonment, and in Dasch's case to thirty-years. Dasch was told in confidence by the FBI that he would receive a presidential pardon – a promise that was never to be fulfilled. The remaining six Germans were executed on August 8, 1942.
During their six years of imprisonment, Burger and Dasch were in constant mortal danger, first from American prisoners who believed them to be spies, and then by German prisoners of war who correctly regarded them as a traitors.
In 1948, Burger and Dasch were released by President Truman, on condition that they be immediately deported to Germany.
All this to protect the inflated reputation of J. Edgar Hoover and the FBI.
The treatment of Burger and Dasch was clearly a moral outrage. But in addition, it was plainly stupid and counter-productive. The simple and enduring lesson is that courageous acts in defense of the United States may, if "inconvenient" to the powers that be, result in imprisonment or even execution.
The best remedy to such official malfeasance is the light of publicity, accomplished at length in the Quirin case through the diligence of a reporter and the Freedom of Information Act – a piece of legislation that has now been effectively abolished by executive fiat of the Bush Administration.
Now Ashcroft "invites" the "swarthy aliens" to "volunteer" information. Should they do so? With the Quirin (Burger and Dasch) case in mind, would
That infamous case presents a precedent that ill-serves the "war on terrorism." And yet, it is cited, time and again, in support of "USA PATRIOT" – the "anti-terrorism bill."
George Bush tells us that we have declared war, not only on terrorists, but also "those who harbor terrorists." He has also told us that "either you are with us or against us," thus voiding any middle ground. Unfortunately, both George Bush and John Ashcroft have declined to give us a clear definition of "terrorist." Thus we are led to ask, if a lawyer defends an accused terrorist in court (presumably military), is he "harboring a terrorist?" Is he, ipso facto "against us"? Indeed, what of those of us who dare criticize Bush's policies, or for that matter presume to question the legitimacy of the 2000 presidential election or the Supreme Court decision that selected him? Are we thus "against" the administration? Is there a military tribunal in our future?
Nonsense! replies the "USA Patriot." We aren't after dissenting US citizens, we are after Islamic terrorists. That's why we are rounding up all those swarthy aliens. No need for you Americans to be "concerned." Then we are reminded of Pastor Niemüller's warning:
In Germany they came first for the Communists and I didn't speak up because I wasn't a communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I was a Protestant. Then they came for me -- and by that time, there was no one left to speak up.
Alarmist? Many German Jews refused to be "alarmed," and ended up in the Auschwitz crematoria. Many left-wing intellectuals who refused to take Joe McCarthy's shenanigans seriously, lost their careers.
George Bush is neither a Hitler, a Stalin, or a Joe McCarthy. He is, however, a weakling devoid of intellectual curiosity, empathy, or a controlling moral sense, surrounded by self-serving ideologues to whom he owes his office. He is quite capable of being captured by events and by the unscrupulous concern of those in power to protect their wealth, their influence and their reputations – all to the detriment of the innocent who get in their way.
It happened to Ernest Peter Burger and George Dasch. It can happen to you and me.
Thomas Jefferson gave us fair warning: "Eternal vigilance is the price of liberty."
I fear that if we lose our liberty, it will not be taken from us -- instead, we will have willingly given it away.
PostScript: An outstanding account of this case may be found in the
February, 2002 issue of The Atlantic Monthly: "The Keystone Kommandos," by Gary
Free to Agree
Online Journal, December 31, 2001
I disapprove of what you say, but I will defended to the death your right to say it.
If all mankind minus one, were of one opinion,
and only one person were of the contrary opinion, mankind would be no more justified in silencing
that one person, than he, if he had the power
would be justified in silencing mankind.
John Stuart Mill
Let's by all means grieve together.
But let's not be stupid together.
Years ago, I hosted a talk show on a Salt Lake City radio station. One day, an irate caller complained that I had "no right" to express my heretical ideas on the air. "But madam," I protested, "surely you must believe in the First Amendment right of free speech." "Of course," she replied, "but that doesn't give you the right to say what isn't true."
She declined to explain to me who or what would determine "what is Truth?"
However, come to think of it, Pontius Pilate fared no better.
It appears that the Bush Administration has adopted, and most of the American media and public have accepted, my anonymous caller's interpretation of the First Amendment – with this advantage: We are also give a criterion of "The Truth." It is what Bush's government tells us it is.
Defiance of that criterion has cost journalists in Texas, Oregon, Utah and elsewhere their jobs. Talk Show host, Bill Maher, salvaged his job
for a short while at the cost of a stern warning from management and a humiliating on-air retraction, following the cancellation of his show in several local markets and the loss of a few key sponsors.
And then his "Politically Incorrect" was itself cancelled. And Susan Sontag's display of eloquence and candor in the September 24
New Yorker unleashed a torrent of public criticism. (As a self-employed writer, she is presumably beyond firing). Appearing on
Nightline with a covey of conservative critics, Sontag was told that she had no right to be critical at a time of national emergency. When she brought up the First Amendment, the critics retreated. Sure, they
said, she had a right to express her views, but that didn't mean that The New Yorker
should publish them. Presumably, she was thus afforded the right to type up her opinions, have them copied at Kinkos, and then to hand them out at some street corner. But publication in a significant periodical?
What is especially remarkable about these episodes is the relative mildness of Maher's and Sontag's remarks. Both
commented that it seemed inappropriate to describe suicide pilots as "cowards." Instead, they continued, "cowardice" might better describe those who shun the battlefield, preferring (in Sontag's words) to "kill from beyond the range of retaliation, high in the sky." Such comments are scarcely original with Maher and Sontag – they have, in fact, been expressed widely, both at home and
(more freely) abroad.
Nor is that the end of it. Harper Collins, the
publisher of Michael Moore's "Stupid White Men," refused to release
the book. Only the timely response of a few professional librarians followed by
a protest from the American Library Association saved the book from the pulp
machine. As we all know, it went on to become a best seller. ( See Kera Bolonik's
Moore," Salon, January 7, 2002). And at a commencement ceremony at
CSU Sacramento, December 15, 2001, Sacramento Bee Publisher, Janis Besler Heaphy, was
shouted off the stage before she could complete her speech, which would have
concluded (had the audience permitted): "America was founded on the belief
that the freedom to think as you will and speak as you think are essential to
democracy. Only by exercising those rights can you ensure their continued
Link to read the speech).
Do you disagree, dear reader, with the opinions of these dissenters? Whether or not you do is quite beside the point. The fundamental question is this:
Do we, or do we not, still reside in a republic that tolerates the expression of unpopular ideas? Amidst all the talk of "supporting our leaders," and "you are either with us or against us," all too many of our
journalists and citizens seem to be forgetting the content and implications of that "freedom" that we claim to be defending.
To close, I invite you to ponder some of the words that provoked the abuse heaped upon Susan Sontag:
The disconnect between last Tuesday's [September 11] monstrous dose of reality and the self-righteous drivel and outright deceptions being peddled by public figures and TV commentators is startling, depressing. The voices licensed to follow the event seem to have joined together in campaign to infantilize the public. . .
The public is not being asked to bear much of the burden of reality. The unanimously applauded, self-congratulatory bromides of a Soviet Party Congress seemed contemptible. The unanimity of the sanctimonious, reality-concealing rhetoric spouted by American officials and media commentators in recent days seems, well, unworthy of a mature democracy.
(The New Yorker, September 24, 2001).
"If liberty means anything at all," Orwell
wrote, "it means the right to tell people what they don't want to
hear." By that account, the United States may no longer be the
"sweet land of liberty." The acid test of a democracy is its tolerance of the free expression of unpopular ideas. Bush's
America is failing that test. Can Orwell's "Ministry of Truth" be far ahead?
The Usurper President proclaims that "we will not allow
the terrorists to take away our freedom!"
No, instead it appears that we're willing to let George do it.
Copyright 2001 by Ernest Partridge