Starter 1: In what cases can we justify the use of military tribunals?

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Collin Warren
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The current "war on terrorism" is different from other military conflicts we have experienced in the past, but many of the issues we face today we have faced before in times of war.

1 The current "war on terrorism" is different from other military conflicts we have experienced in the past, but many of the issues we face today we have faced before in times of war. The starters in this cross-topic pathway offer a historical context for our struggle against terrorism today. They also suggest how military conflicts have both tested our freedoms and defined our values as Americans. Starter 1: In what cases can we justify the use of military tribunals? Starter 2: In what circumstances should we consider suspending or limiting civil liberties? Starter 3: Are certain topics off limit for discussion in times of war? Starter 4: What are the values we defend as Americans? Starter 5: How is the "war on terrorism" different from or similar to other conflicts we have fought in the past? Starter 6: How might our domestic policies affect our struggle against terrorism on the international stage? Note: The views expressed here have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the ABA Standing Committee on Public Education. Page 1

2 Pathway: America at War Starter 1 Issue In what cases can we justify the use of military tribunals? Starter Excerpted from Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President by Attorney General James Speed (July 1865) [John Wilkes Booth, the assassin of President Abraham Lincoln, was killed during his capture. After Lincoln's assassination, hundreds of suspected conspirators were arrested. Most were soon released due to lack of evidence. The federal government did charge eight of the suspects with conspiracy in the plot to assassinate Lincoln and other high government officials. President Andrew Johnson ordered the accused to be tried before a military commission, presided over by the judge advocate general of the U.S. Army. The trial lasted seven weeks. All eight of the accused were found guilty. Four were hanged a week after the end of the trial, including Mary Surratt, the owner of a boardinghouse where it was alleged that Booth had met with co-conspirators. The other four were sentenced to prison terms, three for life terms. One died in prison in The other three, including Dr. Samuel Mudd-who had set Booth's leg after his escape from Ford's Theater-were pardoned by President Johnson in 1869.] "Sir: You ask me whether the persons charged with the offense of having assassinated the President can be tried before a military tribunal, or must they be tried before a civil court. The President was assassinated at a theater in the city of Washington. At the time of the assassination a civil war was flagrant, the city of Washington was defended by fortifications regularly and constantly manned, the principal police of the city was by Federal soldiers, and the public offices and property in the city were all guarded by soldiers, and the President's House and person were, or should have been, under the guard of soldiers. Martial law had been declared in the District of Columbia, but the civil courts were open and held their regular sessions, and transacted business as in times of peace. Such being the facts, the question is one of great importance-important, because it involves the constitutional guarantees thrown about the rights of the citizen, and because Page 2

3 the security of the army and government in time of war is involved; important, as it involves a seeming conflict between the laws of peace and of war. Having given the question propounded the patient and earnest consideration its magnitude and importance require, I will proceed to give the reasons why I am of the opinion that the conspirators not only may but ought to be tried by a military tribunal." Focus Questions What is Speed's argument why Lincoln's assassins should be tried before a military tribunal rather than a civilian criminal court? Do you agree? Why or why not? What do you think of the idea of using military tribunals to prosecute our current war on terrorism? Under what conditions and circumstances, and for whom, do you think it is necessary? Just? What is war? How is it different from peace? When is wartime? How is it a different time than that of peace? Page 3

4 Pathway: America at War Starter 2 Issue In what circumstances should we consider suspending or limiting civil liberties? Starter [Chief Justice Rehnquist's remarks to the Norfolk and Portsmouth Bar Association focused on civil liberty in time of war. One of his topics was President Lincoln's suspension of the writ of habeas corpus during the Civil War. As the Chief Justice explains, "the writ of habeas corpus... was the means by which one who was arrested or confined by governmental authority could ask a court to require the person holding him in custody to show cause why he was being held....the United States Constitution provides that the writ of habeas corpus shall not be suspended, except when in time of war or rebellion the public safety shall require it." Lincoln's suspension of the writ was provoked by the need to protect a vital rail line from Philadelphia to Washington, which was sabotaged in the early days of the war. The suspension gave federal authorities greater power to arrest and hold anyone suspected of conspiring to sabotage the line. After the first arrest of a suspected saboteur, Chief Justice Taney issued an opinion declaring that the President alone did not have the authority to suspend the writ, and that only an act of Congress would suffice. There was, of course, no way for Taney to enforce his order, and it was ignored, but Lincoln referred to it in an address to a special session of Congress on July 4, Chief Justice Rehnquist quotes from President Lincoln's speech, as follows.] "Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Page 4

5 Excerpts from Remarks of Chief Justice William H. Rehnquist at the 100th Anniversary Celebration of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000 Focus Questions In his address to Congress, President Lincoln refers to a law that, in practice, "relieves more of the guilty than of the innocent." Our criminal justice system has numerous laws protecting the rights of the accused, and many of those protected by these laws may in fact be guilty of the crime of which they have been accused. Should we be willing to suspend such laws in times of crisis if we are able to convict more individuals who are guilty of crimes that threaten our national security? How would the possibility that some, perhaps only a few, innocent individuals might be falsely convicted affect your opinion? It is commonly stated that our political system represents "a government of laws, not of men." What does this statement mean to you? Did President Lincoln's action in suspending the writ of habeas corpus violate notions of "a government of laws, not of men"? What do you think President Lincoln meant to suggest when he asked "are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Article I, Section 9, of the U.S. Constitution provides that the writ of habeas corpus can be suspended "when in Cases of Rebellion or Invasion the public Safety may require it." The Constitution gives this power to the Congress, not to the executive branch, as Chief Justice Taney noted in his opinion responding to Lincoln's suspension of the writ. Why do you think the Constitution's drafters entrusted Congress with the power to suspend the writ, which gives detained or imprisoned citizens the right to demand that the government show cause for their detention? Do you agree with the drafters' decision? Page 5

6 Pathway: America at War Starter 3 Issue Are certain topics off limit for discussion in times of war? Starter Part I: "Words are ammunition. Each word an American utters either helps or hurts the war effort. He must stop rumors. He must challenge the cynic and the appeaser. He must not speak recklessly. He must remember that the enemy is listening." Government Information Manual for the Motion Picture Industry, Office of War Information (from World War II) Part II: "Award for Careless Talk" WWII Poster (1944) From the Northwestern University Library Page 6

7 Focus Questions What do you think is meant by the phrase "words are ammunition"? The information manual for the motion picture industry states that each American has a duty to "challenge the cynic and the appeaser." Is there an appropriate role for questioning, skepticism, or dissent in the midst of a war effort? If so, what would that role be? If not, why? The "Award for Careless Talk" poster cautions against speaking of troop movements, ship sailings, and war equipment. In our current struggle against international terrorism, are there topics that you think should be similarly "off limits"? Why or why not? Page 7

Pathway: America at War Starter 4 Issue What are the values we defend as Americans? Starter Part I: "We look forward to a world founded upon four essential human freedoms.

8 Pathway: America at War Starter 4 Issue What are the values we defend as Americans? Starter Part I: "We look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression everywhere in the world. The second is freedom of every person to worship God in his own way everywhere in the world The third is freedom from want... everywhere in the world. The fourth is freedom from fear... anywhere in the world. President Franklin D. Roosevelt, "Four Freedoms" speech, delivered to Congress on January 6, 1941 Page 8

Part II: Norman Rockwell "Four Freedoms" U.S. war bond posters.

Publishing, Indianapolis, IN Publishing, Indianapolis, IN Focus Questions Do you agree with

Do you think the United States has fulfilled these four freedoms for our residents?

9 Part II: Norman Rockwell "Four Freedoms" U.S. war bond posters SEPS: Licensed by Curtis Publishing, Indianapolis, IN 1943 SEPS: Licensed by Curtis Publishing, Indianapolis, IN 1943 SEPS: Licensed by Curtis Publishing, Indianapolis, IN 1943 SEPS: Licensed by Curtis Publishing, Indianapolis, IN Focus Questions Do you agree with President Roosevelt's definition of the four essential human freedoms? Are there any you disagree with? Do you think any essential human freedoms have been omitted from this list? Do you think the United States has fulfilled these four freedoms for our residents? Is it possible for any country to fully enjoy these freedoms unless they are enjoyed around the world? What should America's role be in promoting these freedoms around the world? Page 9

10 Pathway: America at War Starter 5 Issue How is the "war on terrorism" different from or similar to other conflicts we have fought in the past? Starter Part I: "Look at that destruction, that massive, senseless, cruel loss of life...and then I ask you to look in your hearts and recognize that there is no room for neutrality on the issue of terrorism. You're either with civilization or with terrorists. On one side is democracy, the rule of law, and respect for human life; on the other is tyranny, arbitrary executions, and mass murder. We're right and they're wrong. It's as simple as that." Excerpt from New York City Mayor Rudolph W. Giuliani's Address to the United Nations General Assembly on Combating Terrorism, Monday, October 1, 2001 Part II: "One way in which this conflict is indeed different is that there is no antiwar movement to speak of. For nearly half a century-from 1953, when the guns fell silent in Korea, until this year-the United States never went to war, whether directly or by proxy, without significant domestic opposition. Vietnam is the most obvious example. But congressional Democrats voted overwhelmingly against the Gulf War under the first President Bush, and the Bosnia and Kosovo interventions under President Clinton faced similar objections from Republicans. Lebanon, Nicaragua, El Salvador, Grenada, Panama, Somalia all engendered protest, often substantial and well organized. This time there has been nothing of the kind. Apart from traditional pacifists, who oppose any use of force on principle, and a tiny handful of reflexive Rip Van Winkles, almost no one objects, in broad outline, to the aims and methods of the antiterrorism campaign....to be sure, there have been Americans who have suggested that American policies, arrogance, and heedlessness nourished the soil in which terrorism has grown. But even these critics, with very few exceptions, have been careful to affirm that none of this could possibly justify either the attacks themselves or a failure to respond vigorously to them. The United States has not taken up its campaign against terrorism as a matter of choice, Page 10

11 or in pursuit of some tertiary policy goal that is subject to rational questioning. There has been no real antiwar movement since September 11, 2001, for the same reason that there was none after December 7, 1941." Excerpt from Hendrik Hertzberg, "Differences," in The New Yorker (December 3, 2001) 2001, Conde Nast Publications. All rights reserved. Used with the permission of The New Yorker. Focus Questions Mayor Giuliani draws a clear contrast between civilization, on the one hand, and terrorism, on the other, asserting that "there is no room for neutrality on the issue of terrorism. You're either with civilization or with terrorism." At the same time, Hendrik Hertzberg acknowledges that "there have been Americans who have suggested that American policies, arrogance, and heedlessness nourished the soil in which terrorism has grown," although most have affirmed that this did not justify the September 11 attacks. To what extent - if at all - can one remain "with civilization" while criticizing American policies that might have contributed to the growth of terrorism? Do you think such criticism is appropriate at this time? Hertzberg states that "there has been no real antiwar movement since September 11, 2001, for the same reason that there was none after December 7, 1941 [the date of the attack on Pearl Harbor]." Do you agree with Hertzberg's comparison of the September 11 attacks and the attack on Pearl Harbor? Are we confronting circumstances similar to those we confronted during World War II? Why or why not? Is our current military engagement against terrorism, and the domestic response to it, different from other military engagements that have provoked opposition? Why or why not? Page 11

12 Pathway: America at War Starter 6 Issue How might our domestic policies affect our struggle against terrorism on the international stage? Starter Part I: "Careful, the Walls Have Ears," political cartoon by John Kennedy published in the Arkansas Democrat-Gazette (September 11, 1957). Reproduced with permission of the Arkansas Democrat-Gazette Part II: "Already, Spain has refused to extradite suspected Al Qaeda terrorists unless we guarantee that they will not be tried in military tribunals. Great Britain, our staunchest ally, is expressing concern, as are others in Western Europe. These criticisms are particularly disconcerting, since it is our country's State Department that every year grades other nations on their human rights practices, including whether they offer fair and public trials. Remember, too, that we are the nation that protests rightly so when US citizens such as Lori Berenson are brought before military tribunals rather than civilian courts. We should have enough confidence in our own system of justice - be it civilian or military to be willing to allow the world to watch it work." Excerpt from speech by ABA President Robert Hirshon to the National League of Cities in Atlanta on December 7, Page 12

13 Focus Questions To what extent should world opinion influence our decisions on domestic issues or questions of national security? The political cartoon was published at the height of the United States' school desegregation debate, part of the Civil Rights Movement that continued through the 1960s. In hindsight, what impression of the United States do you think the struggles of the Civil Rights Movement gave to the rest of the world? How do you think the use of military tribunals for the trial of suspected terrorists would affect the United States' credibility in questioning human rights practices around the world? Page 13

This topic considers the possible sources of conflict between our civil liberties and our national security needs.

This topic considers the possible sources of conflict between our civil liberties and our national security needs. A crisis such as a terrorist attack, war, domestic unrest, or economic collapse affects how we as a nation interpret our civil liberties. The terrorist attacks of September 11 are not the first national