...about military tribunals for trying any and all terrorists on charges stemming from the Sept 11 Attack on America:

[size=4]Having Their Day in (a Military) Court[/size=4]
[b]How best to prosecute terrorists[/b].

By Robert H. Bork, an NR Contributing Editor
From the December 17, 2001, issue, of National Review

The debate over the president's order creating military tribunals to try suspected terrorists consists largely of warring slogans and overripe rhetoric: "shredding our Constitution," "seizing dictatorial power," etc., on the one hand, and some version of "the bastards don't deserve any better" on the other. Analysis is in short supply. The issue of the balance between security and civil liberties will be with us, in various guises, for a long time to come. The reality we face means that no resolution of such issues will be wholly satisfactory.

When the issue is trying terrorists, there appear to be only four options: trial in a federal court; trial before an international tribunal; trial before a military tribunal; or setting the captives free. No body this side of a psychiatric ward will choose the last option. But the first and second don't win any prizes either.

Trials in federal courts have features that make them totally inappropriate for the trial of terrorists. Jurors often respond to emotional appeals, and, in any event, would have good reason to fear for their and their families' safety if they convicted. Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another. An open trial and proceedings of that length, covered by television, would be an ideal stage for an Osama bin Laden to spread his propaganda to all the Muslims in the world. Many Islamic governments would likely find that aroused mobs make it impossible to continue cooperating with the U.S.

The conclusive argument, however, is that in open trials our government would inevitably have to reveal much of our intelligence information, and about the means by which it is gathered. Charles Krauthammer notes that in the trial of the bombers of our embassies in Africa, the prosecution had to reveal that Amer ican intelligence intercepted bin Laden's satellite phone calls: "As soon as that testimony was published, Osama stopped using the satellite system and went silent. We lost him. Until Sept. 11." Disclosures in open court would inform not only Middle Eastern terrorists but all the intelligence services of the world of our methods and sources.

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Trials before an international tribunal would have all of these defects and more. Picking the members of the court would itself be a diplomatic nightmare. It would be politically impossible to keep judges from Islamic countries off the court. In the past, moreover, international courts have often shown a pronounced anti-American bias. Our prosecutor would be helpless to avoid a propaganda circus and the disclosure of our intelligence capabilities and methods. In the end, convictions would be highly uncertain, but, if obtained, impassioned dissents and the martyrdom of the terrorists would be certain. We should be wary of international tribunals in any event since their establishment seems part of a more general move to erode U.S. sovereignty by subjecting our actions to control by other nations.

Military tribunals avoid or at least mitigate these problems. Propaganda by televised speeches would be impossible and any required disclosure of intelligence methods and successes would be secret. Since trials could move far more efficiently and appeals are cut off by the president's order, punishment of the guilty would be prompt. One of the prices we pay for an all-volunteer military is that for most Americans their armed forces are an unknown world about which it is possible to imagine all sorts of evils; but military tribunals are not, as they have been called, "kangaroo courts" or "drumhead tribunals." Much of the public is probably frightened by visions of defendants convicted out of hand and bustled off to firing squads.

During the Korean War, the officers in my battalion took turns prosecuting and defending. (I had a notable lack of success in both roles.) I sat on the court, and never saw an innocent man convicted but did see a guilty man acquitted. (I prosecuted that one and it still rankles.) Even then, before the widespread reform of the military justice system, military courts manned by officers, in my opinion and that of many others, were superior to the run of civilian courts, more scrupulous in examining the evidence and following the plain import of the law. If I were guilty, I would prefer a civilian jury; if innocent, a military court.

These virtues would be irrelevant if military tribunals were of dubious constitutionality. They are not. The constitutional issue reached the Supreme Court in Ex parte Quirin (1942). German saboteurs had entered the United States illegally to destroy war industries and facilities. Arrested by the FBI before they could act, they sought to file for writs of habeas corpus, contending they had a right to trial before regular courts rather than a military commission. The presidential proclamation establishing the commission denied them access to those courts.

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The Court denied the petition, judging it irrelevant that one of the defendants might be an American citizen. In its decision, the Court made clear the separate constitutional tracks of the two forms of justice: "Presentment by a grand jury and trial by a jury . . . were at the time of the adoption of the Constitution familiar parts of the machinery for criminal trials in the civil courts. But they were procedures unknown to military tribunals which are not courts in the sense of the Judiciary Articles" of the Constitution. Consistent with that understanding, military tribunals have been used by several presidents in time of war. In the Revolutionary War, before there was a Constitution, George Washington employed such tribunals freely, as did Abraham Lincoln in the Civil War, and Franklin Roosevelt in World War II. We remember the Nuremberg trial, with many of the trappings of a civilian court, as an attempt (failed in my view) to establish an international rule of law in open proceedings. That trial is not a model for the problem we face now. There were, of course, no problems of intelligence disclosures, but, more important, the open trial was not regarded by the allies as the only, or in all cases the preferred, method of proceeding. According to Mark Martins, a respected scholar and military lawyer, "German regular army soldiers were also defendants in many of the thousands of military courts and commissions convened by the Allies after the war in different zones of occupation."

If there is a problem with Bush's order, it is the exemption of U.S. citizens from trials before military tribunals. Quirin held that Americans can be tried there, and it is clear that they should. The trial of American terrorists in criminal court would pose all the problems of trying foreign terrorists there: The prosecution would have to choose between safeguarding our intelligence capacity and trying the terrorist. The terrorists could well go free. Contrary to some heated reactions, military tribunals are well within our tradition. They are needed now more than ever.

See article at:[url]http://www.nationalreview.com/17dec01/bork121701.shtml[/url]

Eric The(NowThat'sReasonable!)Hun[>]:)]

I wish Bork would have gotten on the Supreme Court![):)]

Yes, he would.
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WSJ Editorial: Slouching Toward Bush Won't Save Us From Gomorrah
By Robert H. Bork
The Wall Steet Journal

It is a considerable compliment to have one's book, "Slouching Towards Gomorrah," cited, even disparagingly, by a presidential contender whose proud boast it is that he does not read books. (He may not even have realized that he was referring to a book.) But George W. Bush knows people who do read books (just as he bragged that he may not know where East Timor is but he knows people who do know). Some of them even write his speeches for him. Bill Bennett, displaying a new-found optimism about the direction of American culture, mentioned that he was one. A rolodex is a wonderful substitute for actual knowledge.

Mr. Bush's crack about slouching ("Too often, on social issues, my party has painted an image of America slouching toward Gomorrah"), made in a speech at the Manhattan Institute last week, was intended to separate himself from conservatives worried about the abysmal condition of American culture as well as from the liberalism responsible for the state of that culture. Dick Morris called it triangulation.


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Mr. Bush's speech was by no means his first effort to distance himself from the nasty conservatives. The week before, he seized a proposed minor tax revision as the occasion to denounce House Republicans for trying to "balance the budget on the backs of the poor," a patently false charge. Next, he claimed that Republicans were too absorbed with affluence and not sufficiently sensitive to people's needs. He gives the impression that the backs of the poor would be safe in his administration, but that he intends to reach the White House over the dead bodies of conservatives.
No doubt Mr. Bush and his advisers believe themselves to be emulating the sunny, optimistic conservatism of Ronald Reagan, but they can't carry the tune or remember the lyrics. Mr. Reagan did sound a note of hope and of pride in America, but he most emphatically did not go out of his way to pander to the "moderates" (read, Republican liberals) by attacking conservatives. Nor did Mr. Reagan shy away from using divisive and confrontational rhetoric, when reality called for it, as when he labeled the Soviet Union an "evil empire" or denounced "welfare queens." Mr. Reagan wore the label conservative -- no qualifications attached -- proudly.

Mr. Bush evidently thinks conservatives are another species altogether. He has tried to take back his words by saying he really meant that the problem is not with Republicans but with the way they are heard by the public. An unnamed adviser gave that game away by explaining, "After you hit a dog, you pet it." The initial reaction of conservatives suggests that Mr. Bush miscalculated: Conservatives are not gazing up at him with warm, wet eyes, eager to be scratched behind the ears.

(continued)

When it comes to substance, matters only get worse. Platitudes about optimism aside, Mr. Bush has little to say about America's direction. Our foreign policy is an incoherent mess and our military is in rapid decline. The rule of law, as the names Bill Clinton and O.J. Simpson remind us, is giving way to the rule of politics and ethnic identity. Abortion is down but illegitimate births are up, both presumably in part because unwed motherhood is no longer considered shameful. Crime is down, both because of the Guiliani effect and demographics, but is still very high and may well rebound as the number of young males in the population increases. Much of popular entertainment ranges from the vulgar to the obscene. Affirmative action and multiculturalism are splitting us into a nation of antagonistic groups.

Education at all levels is disgraceful. Mr. Bush offers some mild remedies for education but has yet to take on, or even speak about, the real problem: the teachers' unions. There is certainly a role for optimistic conservatism but no excuse for overlooking the very real and degenerate state of much of our politics and culture. Not even replacing the current occupant of the White House with someone of higher moral caliber will do much to improve the culture. Mr. Reagan, after all, could not.


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Finally, there is a degeneracy that Mr. Bush not only overlooks but encourages. Many of Patrick Buchanan's old friends cannot bring themselves to admit that the man has added to a general kookiness a fondness for anti-Semitic rhetoric. But from his statement that the Gulf War was drummed up in Tel Aviv and its "amen corner" in the U.S., to his charge that Jews have divided loyalties, to his demand that elite universities adopt quotas for white Christians, his course has been documented beyond the possibility of quibble by commentators such as William F. Buckley Jr., Charles Krauthammer, and Michael Kelly. His animus is probably political rather than personal, but that doesn't help a great deal.
Hatred of an ethnic group has always been a serious moral flaw, but after the Holocaust to toy with the politics of anti-Semitism is nothing less than evil. To tolerate it, to court an anti-Semite for political gain, bespeaks at best blindness to danger and at worst a willingness out of personal ambition to risk making the danger a reality.

That is itself a sign of a serious moral deficiency. Yet that is precisely what Mr. Bush has done in begging Mr. Buchanan to remain within the Republican Party. No tent can afford to be that big. Talk about slouching, how about slumming?

George W. Bush may be the only chance to hold off the even worse Al Gore and Bill Bradley, but that we are reduced to such a choice merely shows how far we have slouched.

[rolleyes] Another neo-con trashing liberty.

Yet another comment from the uninformed-propagandized crowd.

Bork is strongly anti-RKBA, as he has made clear in a number of comments and editorials throughout the years.  He has been quoted as supporting the Brady Act and the "Assault Weapon Ban".  But because some Republican nominated him, he must be good, right?

What would have happened if Bush the First had gone on television and told the nation, "These calls to prohibit so-called 'assault weapons' are mere propaganda from people with an agenda to destroy your freedoms"?  Instead, he got on TV and proclaimed that he was banning the importation of "assault weapons" by executive order -- thank you, Mr. President.

But, I guess that's ok with you guys too -- you'd rather remember Clinton for expanding Bush's ban, rather than remember who sold you out in the first place.

Similarly, you'd rather remember Bork for being nominated by a Republican, rather than bother to investigate his published biases and decide for yourselves whether he's any good or not.

It's a damn shame you're going to drag the rest of us down with you.