Dems Cave on Tribunals?
A star witness makes the case for the military courts.

December 3, 2001 12:45 p.m.

hile many in Congress and the press wait for Thursday's showdown between Senate Judiciary Committee chairman Patrick Leahy and Attorney General John Ashcroft over the Bush administration's antiterrorism measures, a key part of the Democrats' strategy will be previewed in another hearing, this one scheduled for Tuesday morning.

The session will focus solely on the issue of using military tribunals to try foreign terrorist suspects. The commissions, authorized by President Bush in a November 13 military order, dominated discussion at last week's committee questioning of top Justice Department official Michael Chertoff.

Tuesday's session will be chaired by New York senator Charles Schumer (it is one of four Judiciary Committee hearings this week, and Leahy apparently does not have time to chair them all). The witness list includes Democratic perennial Laurence Tribe, a Harvard Law School professor who is expected to criticize the president's order.

But anyone expecting a full-scale attack on Bush's plan will likely be disappointed. Rather, it appears that Democrats have conceded much of the president's position and will only ask to be consulted more as the rules for tribunals are written.

Much of the argument will focus on points made by Tribe in a recent article, "Trial by Fury," in The New Republic magazine. In it, Tribe begins by arguing that the military tribunal order "goes too far" in infringing civil liberties. But in the end, Tribe makes a convincing case that the tribunals are not only constitutional but necessary.

Tribe argues that Bush may have exceeded his authority by establishing tribunals without the approval of Congress. While lawmakers did pass a seemingly comprehensive use-of-force authorization giving the president wide discretion to conduct the war on terrorism, Tribe says the authorization lacks the "ritualistic solemnity of a declaration of war" and therefore "does not justify the same domestic deprivations that a formal declaration of war might." He then writes that the president's tribunal order is so flawed that it could theoretically lead to absurd results — suggesting that Bush might order the execution of someone acquitted by a tribunal, or that Ashcroft might use a tribunal to try someone accused of assisting suicides in Oregon.

"But just because the order is flawed doesn't mean it can't be mended," Tribe continues. Normally, he says, one might look to the Supreme Court for assistance, but Tribe argues that the justices would be little more than a "rubber stamp" for Bush's action. Tribe cites the majority opinion in Bush v. Gore, as well as the Court's approval of tribunals in the past, as evidence that the justices would be insufficiently critical. Tribe also hints that the Court might be vulnerable to intimidation by the president; he writes that there is evidence that "some nasty behind-the-scenes arm-twisting by the executive" was behind the Court's unanimous approval of Franklin Roosevelt's decision to try eight Nazi spies by tribunal in 1942.

With the Supreme Court on the sidelines, Tribe writes that Congress must take up the task of correcting the president's actions. Congress, Tribe argues, is the only body with the power to investigate the administration's detention of terrorist suspects and witnesses, as well as its "racial profiling" of Middle Eastern immigrants and "the array of other apparent incursions on traditional liberties and privileges...that Attorney General Ashcroft has instituted."

At that point, however, Tribe makes an abrupt about-face. Addressing the "fundamental question of whether the core of the executive order, its gratuitous branches pruned, is consistent with the Constitution," he answers: "I think it may well be."

"In wartime," Tribe continues, "'due process of law,' both linguistically and historically, permits trying unlawful combatants for violation of the laws of war, without a jury or many of the other safeguards of the Bill of Rights," provided the tribunals are impartial. In addition, Tribe concedes that there is nothing to suggest that civilian juries in wartime will be any more fair than military tribunals. He also admits an uneasiness about lawyers in civilian courts using procedural arguments to free suspects who "belong to terrorist cells that slaughter innocent civilians." And lastly, Tribe worries that civilian trials would "grant an extended pulpit to an accused bent on claiming martyrdom and capable of stirring others to further acts of international terror."

Even his criticism of tribunals doesn't really amount to all that much, Tribe concludes. "This is not to suggest that those tribunals, at their core, offend any fundamental constitutional precept," he writes.

Tribe's argument is likely to get a friendly hearing from temporary chairman Schumer. At last week's hearing, he said, "I haven't made up my mind" about tribunals. "I think there is a need for secrecy," Schumer continued, "I think those who say we should just have a regular trial, as if it was someone who held up a candy store — that doesn't make much sense." It might turn out that the showdown over tribunals will be considerably less than advertised.