Quirin and Precedent
Michael Barone cites the new Goldsmith book about executive power and terrorism, with the following passage:
he rejects the charge that the administration has disregarded the rule of law. Quite the contrary. "The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death." There has been a "daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention."
It was not always so, he points out. In 1942, Franklin Roosevelt ordered military commissions to try the eight Nazi saboteurs who had landed on our shores; the Supreme Court unanimously approved, and six were executed six weeks after they were apprehended, to the applause of the media of the day. But FDR "acted in a permissive legal culture that is barely recognizable to us today."
Of course, it is true that the Nazi saboteurs (most of them) were executed quickly after the military commission found them guilty of violating the laws of war. But it bears remembering that (1) the concrete evidence against them was incontrovertible; (2) one of the saboteurs turned the others in, so there was a "cooperating witness"; and (3) the military commission heard several days of evidence--I believe it was a seventeen-day proceeding, but I'm too lazy to confirm that right now. To compare the Quirin case to the terrorism "proceedings" instituted by the Bush administration is a bit too much to stomach. The best that can be said is that the current situation is very, very different.
For one thing, the Nazi saboteurs proceeding was purely about punishment, not about intelligence-gathering. That seems to me to be where the Bush plans run into problems--like holding suspects incommunicado and, um, interrogating them.
posted by Number Three @ 6:08 AM
2 Comments:
A couple of notable points: Quirin (1942) precedes the Geneva Conventions, which as a signed treaty have the status of law. Now maybe presidents have the right to abrogate treaties in cases where they have been breached by other parties, etc., but this certainly does change the situation post-1949.
Second, Congress has significant powers under Article I to "define and punish Offenses against the Law of Nations," "make Rules concerning Captures on Land and Water," and for "regulation of the land and naval forces." I've never understood how the President can simply evade this.
Quirin is a very different case than what has happened under GWB, but I can't say that I think even that case was rightly decided. What would have been the harm in subjecting those defendants to the regular judicial process? Speed, maybe. A little more rule of law there might not have been a bad thing. That case helps pave the way for some of the Japanese internment case embarassments. Bush's (and Barone's) argument in its essence is that the rule of law is bad. I want to have that fight.
The Quirin Court found that Congress had authorized the proceedings (military commissions) in question, so your second point is well taken.
I agree that the Barone argument is essentially that "rule of law is bad." But my point is that Quirin does not stand for the same proposition. It's one of those funny historical ironies--yesterday's "awful" decision actually measures up pretty well against today's outrages.
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