⚠️ Historical Documentation Notice
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International Law
IN his opening speech at Nuremberg in November 1945 Justice Robert H Jackson , appointed by President Franklin D Roosevelt , set the standard for the prosecution of war crimes and criminals under international law (Illustration from David Irving: Nuremberg, the Last Battle (Focal Point, 1997).
Available PHILADELPHIA – President Bush’s executive order authorizing military commissions to try foreign nationals suspected of terrorism is a shocking imposition of martial law that goes well beyond any measure previously upheld by US courts. Though championed on security grounds, it really relies for its dubious legal foundation on one of the ugliest themes in American jurisprudence: the denial that aliens are persons with rights.
The administration’s plan is clearly intended to provide a mechanism by which Osama bin Laden could be quickly tried and executed by US military officials overseas, instead of turning him over to an international judicial tribunal for a prolonged public trial that might make him a martyr. Whatever the wisdom of that grim policy, the order goes much further.
It allows military officials within the United States to arrest aliens on mere suspicion of terrorism, without having to show probable cause; to try them entirely in secret; to use any evidence against them that military officials judge to have “probative value,” even if it is mere hearsay or illegally obtained; to convict them on simple preponderance of such evidence, rather than proof beyond a reasonable doubt; to convict them by a vote of two-thirds of the military judges, without a
requirement of unanimity, much less trial by jury; and to sentence them to death, without appeal to the civilian courts. This is a grotesque Magna Charta for a new Star Chamber. Bush officials have defended the order by citing the US Supreme Court’s approval of President Roosevelt’s decision in World War II to have Nazi saboteurs, captured as they sought to smuggle explosives into Florida, tried and sentenced to death by a secret military tribunal.
But there are fundamental differences in the two cases. Congress had declared war on Germany, making Germans “alien enemies” as a matter of war. And these alien enemies were entering the country illegally, with illegal weapons. They were properly tried as foreign combatants engaged in acts of war. Today, Congress has not declared war against any nation, nor was it even consulted about the administration’s plan to impose martial law.
The president bases his authority for this order only on his own previous executive order proclaiming a state of emergency. And these military courts can try not just persons legally recognized as “alien enemies,” but also lawfully admitted, long-time resident aliens from countries at peace with the US. They can do so, moreover, on the basis of evidence far more flimsy than the government had against the Nazi agents. These steps go well beyond what the Supreme Court has endorsed.
It is true that during the Civil War, Abraham Lincoln imposed martial law even in areas of the country far removed from actual combat. The Supreme Court, however, found those actions unconstitutional. The administration “distinguishes” that case because the defendant was a US citizen, and these measures apply only to foreign nationals. That argument shows that the real basis on which the Bush officials seek to defend these measures is not the power to wage war.
Again, we are not legally at war. They appeal instead to what are longstanding, albeit repugnant, judicial rulings holding that aliens have no meaningful rights that can restrain the US government. The logic is that aliens are guests, invited on terms that we can change. If they don’t like what we’re doing, they can leave. Or we can make them leave. That analogy may have some appeal, but the decisions that wrote this reasoning into law do not.
Judicial denials of rights to aliens originated in response to the US claim in the late 19th century that it could prevent the