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Bench Memos

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Oh For the Good Old Days



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Like Andy McCarthy, I find the sentence of Salim Hamdan to a mere five and a half years (reduced thanks to time served to a mere one-eleventh of that) appalling.  I would only add one further thought to Andy’s fine expression of outrage about this.

In mid-June 1942, eight Germans were covertly landed on American beaches with orders to commit acts of sabotage, and proceeded inland dressed as civilians.  Within days they were all captured by the FBI without having harmed a hair on any American’s head.  Turned over to the Army, the unlawful enemy combatants were provided with counsel, tried before a military commission, and convicted and sentenced to death for violations of the laws of war.  All this occurred before July 1942 was over.  President Roosevelt commuted the sentences of two of the prisoners to life in prison; the other six were executed on August 8, 1942.  In the meantime the Supreme Court heard and dismissed the motion of the prisoners for leave to file petitions for habeas corpus, holding in Ex parte Quirin that the combined effect of the congressional declaration of war, the articles of war governing lawful combat, and the president’s proclamation that unlawful enemy combatants “were denied access to the courts” was such that the civilian judiciary had no role to play.

Three comparisons with the Hamdan debacle are relevant.  First, unlike Hamdan, the defendants in Quirin had accomplished exactly nothing of their intended aim to harm Americans; their allegiance, intent, and attempt were sufficient.  Second, the Quirin proceedings, while they might seem hasty and procedurally deficient by civilian criminal justice standards, were perfectly in accord with the traditional standards of wartime justice accorded to the nation’s enemies.  Third, the relevant institutions involved–the military, the executive branch, the Congress, and the civilian judiciary–all knew their places and their duties, performed them competently and efficiently, and stayed out of each other’s business.

In 1942, we seemed to know what we were doing.  Would that we could say the same now.



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