WSJ

FROM THE HEARTLAND

Trying Times Opponents of military tribunals don't want to admit this is war.

BY THOMAS J. BRAY Monday, November 19, 2001 12:01 a.m. EST

Out here in the real America, you can find almost nobody who wants to see Osama bin Laden captured and brought back to the U.S. for trial. Images of O.J. Simpson, Johnnie Cochran and Greta van Susteren spring to mind: All Osama, All the Time. Most people take it for granted that he should simply be killed on sight.

But the left--and no small segment of the right--is nonetheless managing to work itself into a high dudgeon over President Bush's executive order providing for appointed military commissions to try the "evildoers," should they for some reason fall into our hands alive. "A Travesty of Justice," editorialized the New York Times, which charged Mr. Bush with eroding the rule of law. The paper's conservative columnist, William Safire, worried about "military kangaroo courts."

Never mind that George Washington set up several such "kangaroo courts" during the Revolution, or that Lincoln and FDR countenanced such mechanisms during the Civil War and World War II. Or that the U.S. Supreme Court recognized that the rule of law might be somewhat different when applied to foreign agents in time of war.

It seems rather unlikely that there will actually be any military commissions, much less Miranda warnings followed by jury trials. All the body language coming out of the Pentagon and White House indicates that nobody wants to see bin Laden and his accomplices captured alive. When you go to war, you don't pussyfoot around. As most Americans see it, even to give the bad guys the benefit for a two-thirds vote is a pretty generous act. After all, thousands died at the World Trade Center without benefit of due process.

The Times couldn't pass up the temptation to quote Justice Robert Jackson, the chief American prosecutor at the Nuremberg Trials after World War II, who argued for as much due process as possible. "To pass those defendants a poisoned chalice is to put it to our lips as well," Jackson said. The Times counseled that Mr. Bush "would be wise to heed those words."

But Nuremberg itself was hardly a mechanism envisaged by the American Constitution. Even at the time the trials struck many onlookers as "victor's justice." Among the judges were Stalin's appointed agents. Yes, several defendants were spared the gallows, but there was never much doubt that the best any of them could expect would be to be locked away for life. And properly so, since on the available evidence they were as murderous a band of thugs as history has ever known.

American citizens don't need to be lectured about the importance of being seen as a country that is fair-minded and inclined to give the benefit of the doubt to those who are wrongly accused. For that reason alone, any president would find it necessary to appoint commissioners who are above reproach, who would conduct proceedings in a manner designed to bring out the relevant evidence, and who would rule in a way that most, if not all, of the world would see as just. But why deliver these people up to a process in which the argument that they were "just following orders" will be the subject of endless appeal?

In war, the object is not to accord your enemy the same rights as your own citizens, but to get the enemy in your sights and then kill him. That is a sad duty, but Congress passed a resolution authorizing the president to pursue his announced goal of eliminating terrorist groups of global reach. Part of this process will look like old-fashioned combat, and part will look like old-fashioned police work. But it should all be seen as part of a war nonetheless.

And if it is not prosecuted effectively, the war will soon enough return to our own soil, where it began. If a few envelopes of anthrax could engender such a panic, at least in the media, think what would happen to civil liberties if worse were to happen. During the last war within U.S. borders, President Lincoln not only appointed military commissions but suspended the writ of habeas corpus in areas under military control. He even exiled the leading antiwar congressman, Clement Vallandigham, to the South (Lincoln found it easier than jailing him, but it was a pretty extraconstitutional act nonetheless).

So get real, guys. There are times in the life of a nation when it just has to live with the slippery slope. Those who protest the idea of subjecting foreigners to interviews, eavesdropping devices and military commissions are really denying we are at war. They are objecting to the recognition, in the wake of the mass slaughter of Sept. 11, that terrorism is an act of war rather than a mere crime.

The truth is, we are at war. Failure to act accordingly would only encourage far worse.

Mr. Bray is a staff columnist at the Detroit News. His OpinionJournal.com column appears Tuesdays.

-- Anonymous, November 19, 2001