The Supreme Court has agreed to decide whether our laws and Constitution require President Bush to try Al Qaida terrorists in a more permissive venue than the military tribunals George Washington used for British spies.
The answer is no.
In 1780, a Continental patrol intercepted British Maj. John Andre, dressed in civilian clothes, sneaking back toward British lines after visiting Gen. Benedict Arnold at West Point. Andre was carrying secret papers from the traitorous Arnold hidden in his boot.
Gen. Washington handed the dashing and courageous Andre over to a military tribunal for trial. The tribunal determined he "ought to be considered a spy from the enemy, and that, agreeably to the law and usage of nations ... he ought to suffer death."
Andre appealed to Washington -- asking only to be executed like a gentleman before a firing squad, not hung as spies normally were.
"Sympathy toward a soldier will surely induce your Excellency and a military tribunal to adapt the mode of my death to the feelings of a man of honor," said Andre.
Washington was unmoved. When he failed to persuade the British to trade Andre for the ignominious Arnold (who had fled), he approved Andre's hanging.
Seven years later, Washington presided at the Constitutional Convention, where the Framers crafted Article 1, Section 8, Clause 10. It says: "Congress shall have power ... to define and punish ... offenses against the law of nations."
In 1942, during World War II, the FBI arrested a group of Nazi saboteurs who had infiltrated the United States via submarine. President Roosevelt ordered them tried by military tribunal. They appealed to the Supreme Court. In Ex Parte Quirin, the Court cited Article 1, Section 8, Clause 10, and provisions in the Articles of War enacted by Congress under that clause, in upholding Roosevelt's tribunal.
"From the very beginning of its history, this Court has recognized and applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals," said the court. "By the Articles of War ... Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders for offenses against the law of war in appropriate cases."
The court noted that the law of war had long recognized a distinction between "lawful and unlawful combatants," with the latter being "subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."