By WILLIAM SAFIRE
The New York Times, A19
November 262001 

WASHINGTON — As soon as German U‑boats put eight sabo­teurs on U.S. shores dur­ing World War II, one of the eight called the F.B.I. to betray the mis­sion but was brushed off as a crack­pot. Days lat­er, he called again and man­aged to per­suade the F.B.I. he was an authen­tic sabo­teur. Partly to keep this embar­rass­ment of bun­gled enforce­ment from becom­ing known, the eight were secret­ly tried by a mil­i­tary court inside the F.B.I. headquarters.

Unexpectedly, a U.S. Army lawyer assigned to the Germans mount­ed a spir­it­ed defense. Col. Kenneth Royall, cit­ing the land­mark 1866 Supreme Court deci­sion of Ex Parte Milligan — hold­ing that mar­tial law could not be applied where fed­er­al civ­il courts were in busi­ness — chal­lenged the secret tri­bunal’s legality.

F.D.R. told his attor­ney gen­er­al, accord­ing to Francis Biddle’s mem­oirs, that he would resist any Supreme Court deci­sion to give the accused sabo­teurs a reg­u­lar court tri­al: I won’t hand them over to any United States mar­shal armed with a writ of habeas cor­pus.” Confrontation was avert­ed when a cowed Supreme Court unan­i­mous­ly acknowl­edged the extra- judi­cial pow­er of a pres­i­dent armed with a Congressional dec­la­ra­tion of war. Six of the eight cap­tives went to the elec­tric chair; J. Edgar Hoover was award­ed a medal of honor.

Now President Bush, with no such Congressional dec­la­ra­tion, is using that Roosevelt mis­take as prece­dent for his own dis­may­ing depar­ture from due process. Bush’s lat­est self-jus­ti­fi­ca­tion is his claim to be pro­tect­ing jurors (by doing away with juries). Worse, his gung-ho advis­ers have con­vinced him — as well as some gullible com­men­ta­tors — that the Star Chamber tri­bunals he has ordered are imple­men­ta­tions” of the law­ful Uniform Code of Military Justice.

Military attor­neys are silent­ly seething because they know that to be untrue. The U.C.M.J. demands a pub­lic tri­al, proof beyond rea­son­able doubt, an accused’s voice in the selec­tion of juries and right to choose coun­sel, una­nim­i­ty in death sen­tenc­ing and above all appel­late review by civil­ians con­firmed by the Senate. Not one of those fun­da­men­tal rights can be found in Bush’s mil­i­tary order set­ting up kan­ga­roo courts for peo­ple he des­ig­nates before tri­al” to be ter­ror­ists. Bush’s fiat turns back the clock on all advances in mil­i­tary jus­tice, through three wars, in the past half-century.

His advis­ers assured him that a fear­ful major­i­ty would cheer his assump­tion of dic­ta­to­r­i­al pow­er to ignore our courts. They failed to warn him, how­ev­er, that his denial of tra­di­tion­al American human rights to non- cit­i­zens would back­fire and in prac­tice actu­al­ly weak­en the war on terror.

Spain, which caught and charged eight men for com­plic­i­ty in the Sept. 11 attacks, last week balked at turn­ing over the sus­pects to a U.S. tri­bunal ordered to ignore rights nor­mal­ly accord­ed alien defen­dants. Other mem­bers of the European Union hold­ing sus­pects that might help us break Al Qaeda may also refuse extra­di­tion. Presumably Secretary of State Colin Powell was left out of the Ashcroft try- em-and-fry-‘em loop.

Thus has coali­tion-mind­ed Bush under­mined the antiter­ror­ist coali­tion, ced­ing to nations over­seas the high moral and legal ground long held by U.S. jus­tice. And on what leg does the U.S now stand when China sen­tences an American to death after a mil­i­tary tri­al devoid of coun­sel cho­sen by the defendant?

We in the tiny minor­i­ty of edi­to­ri­al­ists on left and right who dare to point out such con­sti­tu­tion­al, moral and prac­ti­cal antiter­ror­ist con­sid­er­a­tions are derid­ed as pro­fes­sion­al hys­ter­ics” akin to ante­bel­lum Southern belles suf­fer­ing the vapors.” Buncha weepy sissies, we are. (Frankly, Scarlett, I don’t give a damn — I’ve always been pro-bellum.)

The pos­si­bil­i­ty of being accused, how­ev­er, of show­ing insuf­fi­cient out­rage at those sus­pect­ed of a con­nec­tion to ter­ror­ists shuts up most politi­cians. And a need to dis­play patri­ot­ic fer­vor turns Bush’s lib­er­al crit­ics into exem­plars of even­handedism. Careers can be wrecked by tak­ing an unpop­u­lar stand.

But not always. Forty years ago, my polit­i­cal men­tor intro­duced me to his senior part­ner, Ken Royall, who after World War II had been appoint­ed by President Truman to be the last sec­re­tary of war. Royall, then head of a great New York law firm, con­sid­ered the high point of his career his los­ing fight to get a group of reviled Nazi ter­ror­ists a fair American trial.