Mistakes of the past

December 30, 2004|By Michael W. Kauffman

THE DECISION last month by U.S. District Judge James Robertson that mandated a greater degree of due process for Guantanamo Bay detainees brings to mind an earlier struggle over the same legal terrain.

President Bush fired the opening shots of the more recent war in November 2001 when he declared that suspected al-Qaida members would be subject to trial by military commission. His proclamation, and reactions to it, were remarkably similar to the arguments that played out in 1862, when Union forces began convening similar tribunals to deal with Confederate partisans during the Civil War.

Some thought the Lincoln administration was acting paranoid, but it had good reason. Not only was the nation split along sectional lines, but political divisions in the North had become so pronounced that Southern sympathizers ran rampant in every corner of the country. They even held a sizable number of offices in the federal government. Though few had violated any criminal statutes, many were arrested on legally ambiguous charges. They were tried before military commissions, which, predictably, yielded a high rate of convictions.

Critics charged that military commissions had become a political tool, not a legitimate means of enforcing the laws, and they accused Abraham Lincoln of abandoning the Constitution when he authorized such trials. The president answered with a plea of military necessity, citing many instances when local civilians had interfered with the Union war effort.

Despite the controversy, Mr. Lincoln authorized nearly 2,000 of these trials by the end of the war, and the other branches of government were reluctant to interfere. That began to change after the president's death, with the trial of the so-called Lincoln conspirators in 1865.

In the days that followed the assassination, eight civilians were accused of complicity in Mr. Lincoln's killing. Their trial, before a panel of nine military officers, began with the questioning of three government witnesses who told of a direct link between the assassin, John Wilkes Booth, and the Confederate government.

Their testimony seemed powerful and conclusive. But it was taken in secret, and when leaked to the press three weeks into the trial, it fell apart, taking much of the prosecution's case with it. The bright light of public scrutiny had exposed these men as frauds who had conspired with each other to help the government build its case.

The prosecution was not entirely at fault for the malfeasance, and Judge Advocate General Joseph Holt often took pains to ensure that the rules of evidence were strictly enforced in the defendants' favor.

But if Mr. Holt wanted to depart from those rules, he was free to do so. It was he alone who advised the nine-member Lincoln conspiracy military commission on points of law, and only the president could reverse the decisions it handed down. The panel's only attorney (Lew Wallace, who later wrote Ben-Hur) was a hard-liner who supported Mr. Holt's every move. They allowed an enormous amount of hearsay testimony and, ultimately, all eight defendants were convicted. Four, including Mary E. Surratt, were put to death.

The Lincoln conspiracy case proved to be a bonanza for critics of military commissions. Government corruption, secrecy and the hanging of a woman forced the public to re-examine such trials. When the passions of war subsided, they came to be seen as inherently unfair. The courts began to view them the same way.

Eighteen months after the Lincoln conspiracy verdicts, the U.S. Supreme Court decided that all such tribunals were illegal in areas where civilian courts were open and functioning. The decision was modified during World War II, but military commissions still carry a stigma, and the basic premise remains that civilians should be tried by civilians.

Military tribunals are neither courts nor courts-martial, and their ambiguity gives prosecutors more flexibility and fewer restraints than any civilian court would tolerate. In 1865, this allowed Mr. Holt to sit in on the commission's deliberations and to urge its adoption of a non-unanimous rule for conviction.

Who can say what it will mean in 2005? The most controversial features of the Lincoln conspiracy trial and others like it were built right into President Bush's orders. Though recent court decisions have narrowed the president's authority to improvise, military commissions may still operate outside the normal bounds of the law. They still allow hearsay testimony, and they still claim the protection of secrecy in the name of national security.

The Nov. 8 decision by Judge Robertson, in a lawsuit filed by the first accused member of al-Qaida, was a setback for the Bush administration. He ruled that detainees at Guantanamo may be prisoners of war under the Geneva Conventions and thus can be protected under international and military law.

If the legacy of 1865 tells us anything, it is this: that extraordinary measures are tolerated in difficult times, but when those times have passed, the rule of law must be restored. Three years after President Bush issued his executive order, cooler heads are beginning to ask: Are these tribunals still a wartime necessity, or are they just another attempt to implement a process whose outcome was never in doubt?

Michael W. Kauffman is the author of American Brutus: John Wilkes Booth and the Lincoln Conspiracies.

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