The controversy over the upcoming Khalid Sheikh Mohammed trial has not enlightened the public. Those who would deny rights to persons denounced by the president and those who automatically reject all alternatives to criminal trials have seen to that.
Prisoners of war are persons captured in uniform of whose enemy status there is no doubt. They may be confined indefinitely but have the right not to be questioned. Bush-Cheney defenders uphold unlimited detention but not its confining factors: undisputed belligerency of the captive and freedom from questioning and torture.
Such detention is not to be undertaken lightly. Detention without trial by the executive has, as Justice Robert H. Jackson once said, "been considered oppressive and lawless" since the Magna Carta. Detention of juveniles and the mentally ill must be legislatively authorized and subject to periodic judicial review. Executive detention as martial law is tolerated for brief periods where the courts are not open; its necessity is subject to judicial review.
Justice Jackson observed: "The most scrupulous observance of due process is especially necessary where the occasion of future detention is fear of future misconduct rather than crimes committed." Federal statutes forbid arrests of civilians by the military; in an incident in Lackawanna, N.Y., Vice President Dick Cheney sought to ignore them, and thereafter obtained "stealth" legislation doing away with the prohibition - which was repealed after the protest of all 50 governors.
The Patriot Act authorizes executive detention for 30 days; similar British legislation authorizes 28 days. Britain's Conservative Party blocked efforts to extend the period to 45 days. This is not a question of being kind. When people not in uniform are picked up by young soldiers lacking their language, on the advice of informers, mistakes are made; anonymity is, Justice Jackson said, "a cloak for the malevolent, the misinformed, the meddlesome and the corrupt"; and executive detention can "drift into oppression of the disadvantaged in this country as surely as it has elsewhere."
Military commissions were used for the co-conspirators in the Lincoln assassination, some of them victims of a miscarriage of justice; Nazi saboteurs during World War II; and at the Nuremberg trials before an international military tribunal. These defendants received prompt trials and eminent counsel. Rules of evidence, including those governing interrogation, are somewhat relaxed, and as Justice Jackson has said, they do not provide precedents for degrading ordinary criminal trials.
Bernard Meltzer, a Nuremberg prosecutor, suggested the use of commissions to provide "swift justice" for Osama bin Laden; he and co-author Jack Goldsmith would generously accord rights to counsel. Instead, terrorism suspects were tortured and held for six years without hearing and without counsel, giving belated proposals for commissions a bad odor.
The Supreme Court after the Civil War condemned the use of military commissions to try citizens while the civil courts were open, echoing Maryland lawyer Reverdy Johnson's objections to the trial of Mary Surratt, who was convicted in the conspiracy to assassinate Lincoln.
Sen. Lindsey Graham has a point in urging military commissions for Guantanamo prisoners captured abroad. But for citizens or those captured within the United States, we do not ordinarily want the military involved. None of these questions is new, and none changed with Sept. 11. Professors Charles Fairman of Harvard, Edwin Corwin of Princeton and Clinton Rossiter of Cornell wrote books about them during World War II, when we were menaced by industrial powers, not people in caves in Pakistan. Vannevar Bush, the wartime czar of American science, wrote "Modern Arms and Free Men" in 1949, finding threats from weapons of mass destruction overblown; it still reads well.
Britain, France, Germany and Italy have dealt with domestic terrorism by people without foreign origins; they have not panicked. As for claims of "inherent executive power," Justice Jackson said it all: "men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."