This week's winner for best comedy line about the war is New York Democratic Sen. Charles Schumer. Referring to – well, it doesn't really matter what he was referring to, but it was military tribunals – Schumer said: "To come up with the best way to do this, Congress ought to be involved."
Congress came up with the Internal Revenue code, right? And the whole United States code? That's just what we need – Congress involved in emergency national security measures!
Under the self-aggrandizing delusion that their input is necessary during wartime, various congressmen are trying to haul Attorney General Ashcroft before them to answer questions about the detentions and military tribunals for suspected terrorists.
Democrats are channeling their frustration with America's imminent military victory in Afghanistan into hysterical opposition to reasonable national security measures at home. (Incidentally, this ought to prove once and for all what a bunch of paper tigers the Russians are. What were they doing over there for 10 years? It hasn't taken us 10 weeks.)
Fortunately, Congress has no role in prosecuting this war either abroad or domestically. They are relieved of duty, free to "get back to normal," as the president has recommended – which in their case means enacting massive spending bills to fund comically useless government programs. That should make them happy.
Sen. Patrick Leahy, another Democrat, has blustered that there "has been no formal declaration of war and, in the meantime, our civilian courts remain open and available to try suspected terrorists." Consequently, he said, questions are raised "about whether the president can lawfully authorize the use of military commissions to try persons arrested here."
Though I am sublimely confident that the public will recognize Leahy for the sputtering fool that he is, I note that: We are at war. We have been at war since 8:48 a.m. Tuesday, Sept. 11, 2001. A precise talismanic formulation by Congress is not necessary to inform us of this fact.
Wars can exist even if Congress does not declare them if, for example, thousands of civilians are slaughtered in a surprise attack on American soil. On the off chance anyone didn't know that we were at war as of 8:48 a.m. Tuesday, Sept. 11, 2001, Bush said so in his address to a joint session of Congress the week after the attack: "On September the 11th, enemies of freedom committed an act of war against our country."
A formal declaration of war has certain consequences only under international law, not relevant to any domestic security measures taken under the president's war powers, such as military tribunals.
Even if "international law" were relevant here – which it isn't – as the masterful United Nations has demonstrated once again during the current conflict, international law is like Santa Claus. The only difference is that Santa Claus exists only in the imaginations of small children, whereas international law also exists in law school classrooms. In the corporeal world, international law is whatever the United States and Great Britain say it is.
Because we are at war, and moreover, because the president is the commander in chief, Bush had authority on Sept. 11 to give orders to shoot down the fourth plane if it had circled back toward Washington. Because we are at war, Bush had authority to bomb Afghanistan. He didn't need congressional approval for those actions any more than he needs congressional approval right now to try any suspected belligerents on U.S. soil in military tribunals.
If Congress doesn't like it, the Constitution gives it two choices: It can cut off funding, or it can impeach the president. Congress controls the purse – it doesn't wage war. Knock yourselves out, boys. (Has anyone else noticed there have been no polls taken on the issue of military tribunals for terrorists?)
In 1942, six months after Pearl Harbor, the Supreme Court upheld the use of military tribunals for eight German spies captured on U.S. soil, two of whom were U.S. citizens. In that case, Ex Parte Quirin, the court found that military tribunals were appropriate for suspected enemies who have "entered or after entry remained in our territory without uniform" intending to engage in an act of belligerency against the United States. (And the Huns were accused only of planning attacks on war materials – not on U.S. citizens.)
The Supreme Court decided Quirin in less than 24 hours. Three days later, the military tribunal found the saboteurs guilty. Five days after that, six of the eight were executed, including Herbert Hans Haupt, a U.S. citizen. Only the two who had ratted out the plot were given prison sentences instead of death.
Though Bush has ordered military tribunals only for non-citizens, the Quirin court did not exempt citizens from trial in military tribunals. "Citizenship in the United States" provides no shelter, the court held, if "unlawful belligerency is the gravamen of the offense." Citizens who associate with the enemy – "with its aid, guidance and direction" – are "enemy belligerents."
The fact that the "courts are open" – the phrase absurdly invoked by Sen. Leahy – refers to the Supreme Court's decision in Ex Parte Milligan holding that military tribunals "can never be applied to citizens ... where the courts are open and their process unobstructed."
Note first the use of the word "citizen" in that sentence. Note further the Supreme Court's subsequent holding in Quirin that citizens can be tried in military tribunals. Indeed, the Quirin court expressly distinguished Milligan's case from the Nazi saboteurs' case on the grounds that Milligan "was not an enemy belligerent."
When Ashcroft is forced to waste his time in Senate hearings this week instead of protecting the nation from more terrorist attacks, he should remind them that there's no exemption for senators either.