Military Tribunals

December 9, 2001

by Charles E. Perry

There has been a great deal of noise raised about the fact that President Bush wants to use military tribunals to try the terrorists. We are told it must be stopped. We are told it will lead to the death of the Bill of Rights. We are told it will mean the death of the Constitution! Well, let’s look at the objections and see for ourselves.

It’s unconstitutional. The terrorists claim to be soldiers attacking the United States. There is nothing unconstitutional in trying soldiers who murder civilians by military tribunal. In fact, that’s the usual method. Military trials are a recognition of what the terrorists claim about themselves. Further, the Supreme Court already ruled that it was constitutional to try German terrorists by military tribunal when FDR did it in World War II. The claim that it’s unconstitutional simply doesn’t stand up to the facts.

It will destroy the Bill of Rights. Read the executive order. It doesn’t apply to American citizens. And, here’s a shocker for you, the Bill of Rights doesn’t apply to foreign soldiers engaged in acts of war against the United States. Since the terrorists claim to be soldiers engaged in acts of war, they remove themselves from the protections the Bill of Rights offer.

The trials must be open. Sheer malarkey. There is nothing in the Constitution which says that trials must be open, and our civilian courts have conducted closed trials numerous times. No one has an absolute right to be present at any trial, save those who are active participants in the process. During my own recent stint as a juror, a group of homeschoolers came in to observe the trial. The judge told them they had to leave, that the subject matter of the trial was not suitable for children. Surprise, surprise! No one’s rights were violated by his decree. Further, during the trial of the first World Trade Center bombers, it was revealed that we were listening to bin Laden’s communications. He immediately changed methods, and we lost him. There are valid intelligence and national security reasons for closed trials.

The accused won’t have a lawyer. Again, sheer malarkey. In any military trial the accused is provided with a lawyer. He can reject that lawyer and ask for another. He may even hire a civilian lawyer to represent him, and that civilian lawyer will be provided with a military attorney to help guide him. I don’t know how the idea that the accused won’t be allowed a lawyer started, but it simply isn’t true.

The accused has to prove his innocence. Yet, more malarkey. Military courts, like civilian courts, at least in the United States, begin with the presumption that the accused is innocent. The prosecution must prove its case beyond a reasonable doubt. The accused is not required to present any defense at all, let alone prove his innocence. The burden of proof, as it is in civilian trials, is all on the prosecutor. This is, I think, an argument raised by someone with no knowledge at all of the Uniform Code of Military Justice.

There are no appeals allowed. This couldn’t be more wrong. In a military trial, unlike a civilian trial, the appeals are all automatic, and take place whether the accused request them or not. In a civilian trial, the accused must file an appeal for it to go forward. This is one area where military justice may possibly be superior to civilian justice.

So, we can see that the objections to military trials for the terrorists simply don’t hold water. I think it likely that, rather than showing sincere concern for the rights of the poor terrorists, they are partisan attacks by people who want to see Bush fail for their own political gain. I’d like to leave you with one last thought: if military trials are so unfair and so unconstitutional, why haven’t these same people objected to our own soldiers being subject to military trials for the last 200 years or so?

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Charles E. Perry is a freelance writer living in Michigan. He has done a variety of things in his life, including Ward Supervisor at the State of Michigan's Maximum Security Mental Facility. His degree is in accounting, but he discovered writing and now spends his time hunched over a keyboard, hollow-eyed, looking for just the right word. Perry is the author of "How Government Should Work: A Look at the Federalist Papers and the Constitution of the United States," currently pending publication.

Send the author an E mail at Perry@ConservativeTruth.org.

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