RULE OF LAW
Lessons on Tribunals--From 1942For the next three months, I was the youngest lawyer on the 10-man team that prosecuted the eight invaders before a military commission. They were convicted and sentenced to death, although two of the sentences were later commuted. I also took part in the Supreme Court case which affirmed the constitutionality of the trial, and the sentences.
The 1942 trial is the major legal precedent cited in support of President Bush's decision to create a new military tribunal to try at least some of the al Qaeda leaders for terrorist crimes. For me, it is Yogi Berra time--déjà vu all over again.
All of the Supreme Court justices who participated in the 1942 case are gone. It is dangerous to predict what the current court would say about a military tribunal today, particularly since the court has expanded the constitutional rights of all criminal defendants, citizen or noncitizen, well beyond the case law as it stood 60 years ago. But Anthony Lewis of the New York Times and Harvard professor Laurence Tribe--both strong advocates of fair trials for criminal defendants--have recently said they do not doubt that leaders of al Qaeda could properly be tried before a military commission.
I do not doubt it either. I would bet the farm that if Osama bin Laden or some lesser participant in knowingly planning the Sept. 11 attacks were tried, convicted and sentenced to death by a military court that observed the constitutional fair trial rights of all criminal defendants under the case law as it stands today, the Supreme Court would not upset the conviction.
Although FDR's use of a military commission was sustained by the Supreme Court, our prosecuting team made a number of debatable decisions that the Bush team would be well advised to remember this time around.
First, FDR's executive order purported to bar the defendants from access to the federal courts. President Bush's order contains a similar provision. But when defense counsel defied this provision and filed a petition for a writ of habeas corpus with the federal courts, FDR's team wisely decided not to contest the Supreme Court's jurisdiction. Judging by recent published statements of Alberto Gonzales, the White House counsel, the Bush team seems likely to do the same, at least when the military trial is held within the U.S.
Second, the 1942 proceedings were held in extreme secrecy, for reasons that were open to question even at that time. The trial took place in the FBI offices in Washington, but the press and public were excluded. The press was given a daily briefing, limited to the names of the witnesses and how long they had been on the stand. Even so, the press covered these meager bits in banner page-one headlines.
The main reason for all this secrecy was that Hoover wanted the public to believe that the FBI had advance intelligence and had caught the saboteurs as they landed on the beach. In fact, they had landed safely--four on Long Island and four in Florida--and had moved freely to their assigned destinations. The FBI did not find them until two of the saboteurs decided to defect and came voluntarily to Washington to betray the others. Indeed, when one of them called the FBI to say the group had just landed to carry out sabotage missions, the agent who received the call thought he was dealing with a nut, and filed his notes of the call without reporting it to his superiors.
The myth that the FBI had been waiting on the beaches could be defended as a useful piece of wartime disinformation, to reassure the public that our borders were secure, and to discourage the Germans from attempting additional landings. In the summer of '42, half our fleet had been sunk, Gen. MacArthur's forces in the Philippines were being overrun, and Jimmy Doolittle's "30 seconds over Tokyo" had been only a pinprick to the Japanese. When the German saboteurs fell into our hands, the event could be made into the first proof that America was bouncing back.
Hoover, Attorney General Francis Biddle, and FDR took advantage of this opportunity. By holding a secret military trial they could preserve our own little secret--how we had actually captured the saboteurs. The real truth was officially hidden until 1945, when Attorney General Tom Clark disclosed it over Hoover's objection.
Is it likely that the Bush team will try to impose this same level of extreme secrecy when and if there is a new military trial in 2002? I doubt it, especially since the White House counsel has said that any such trial will be public, to the extent "consistent with the urgent needs of national security." Well-established procedures already exist in both our military and federal courts to safeguard official secrets in a manner that is fair to defendants.
FDR's prosecuting team did not assure each defendant's right to separate counsel of his choice, a right that is more fully recognized today than it was in 1942. Even though two of the eight had betrayed the others, separate counsel was provided to only one of the two, George John Dasch. The second betrayer and the other six were all represented by a single team of defense counsel even though the betrayer (Ernest Burger) had an obvious conflict with the others. No defense counsel or judge raised this issue in 1942.
Third, the 1942 trial by military tribunal was conducted in secret and the defendants were not adequately represented by separate counsel of their choice. A military trial of al Qaeda leaders in 2002 would have to be held in the full glare of modern print and video journalism. I believe this can be done in a manner that meets all legitimate constitutional and public concerns. But success will depend on the quality of the judges, the prosecutors and the defense lawyers, and their ability to show the world that justice is in fact being done. In a very real sense, it is the American legal system, not just al Qaeda's leaders, that would be on trial.
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