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."
"Such was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars," said the court. In footnotes, it listed numerous cases -- including Maj. John Andre's.
In 2001, after terrorists directed by Osama bin Laden killed 3,000 Americans, Congress authorized the president to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001."
President Bush then ordered that military tribunals be used to try members of Al Qaida charged as unlawful combatants. Among the sources of authority Bush cited for this order were sections 821 and 836 of Title 10 of the U.S. Code. These are the contemporary laws Congress has enacted under Article 1, Section 8, Clause 10 to authorize military tribunals.
After U.S. forces invaded Afghanistan, they took custody of Salih Hamdan. He admitted in an affidavit he was bin Laden's driver. A brief submitted in federal court by the U.S. solicitor general's office alleged Hamdan also served as bin Laden's bodyguard and "was aware during this period that bin Laden and his associates had participated in attacks against U.S. citizens and property, including the Sept. 11 attacks."
President Bush designated Hamdan as eligible for trial by military tribunal, and Hamdan was charged with terrorism-related crimes, including conspiracy to commit attacks on civilians. He appealed in federal court, arguing he deserved to be treated as a prisoner of war under the Geneva Convention and that President Bush lacked the authority to establish military tribunals.
In July, an opinion by the U.S Court of Appeals for the District of Columbia joined by then-appellate Judge John Roberts ruled that Al Qaida is not a party to the Geneva Convention and that Congress had constitutionally authorized military tribunals in the sections of the law cited by President Bush.
As Hamdan's case goes to the Supreme Court, liberals will ignore the law and the Constitution, and argue that a military tribunal is not a fitting instrument of justice for an enlightened society. Yet, if it was fitting for Maj. Andre, it is certainly more than fitting for bin Laden's bodyguard-chauffeur.