How We Treat Our Enemies in Wartime

Michael Dobbs, a Washington Post reporter and the author of Saboteurs: The Nazi Raid on America (2004), in the Post (Feb. 8, 2004):

There are few more difficult issues for a democracy than how it metes out justice to its enemies in time of war. Over the coming weeks and months, as the Supreme Court hears a series of challenges to the Bush administration's proposed use of military commissions to try suspected terrorists, we will become spectators to an extraordinary constitutional drama.

For a preview of how the action is likely to unfold, consider what happened the last time the play was performed, 62 years ago. The setting: wartime Washington. The leading characters: a president determined to make an example out of a group of captured saboteurs; a gritty, Army-appointed defense lawyer intent on doing the best he can for his unpopular clients; nine Supreme Court justices struggling to balance the competing demands of law and war. These characters -- like their modern-day counterparts -- epitomized the American justice system to the rest of the world, and history has delivered a mixed verdict on their performance.

I became fascinated with the case of the Nazi saboteurs (who traveled to America by U-boat with the aim of blowing up factories, bridges and department stores) at about the time the planes crashed into the World Trade Center and the Pentagon on Sept. 11, 2001. The more I delved into the archives, the more I was struck by the parallels between then and now. When President Bush decided, two months after 9/11, to emulate President Franklin D. Roosevelt and establish military tribunals for alleged al Qaeda operatives, history appeared to be repeating itself....

There are differences, of course. Unlike the well-trained killers who destroyed the World Trade Center and fought with U.S. forces in Afghanistan, the Nazi saboteurs were the gang that couldn't shoot straight. They were captured, on American soil, before they got around to blowing anything up. Furthermore, the war on terrorism is a much more nebulous kind of war than World War II, which had a clear goal and clear enemies, whose ideological appeal faded with their physical overthrow. World War II ended when Hitler was defeated; the war on terrorism could go on forever.

But when it comes to the way we deal with captured foes, the similarities are evident enough to ask whether military commissions are compatible with American ideas of justice. As the Pentagon gears up for military tribunals at our Guantanamo Bay base in Cuba, and defense lawyers rehearse the arguments they will make before the Supreme Court at the end of March, it is as if everybody is slipping into pre-assigned roles. In some cases, the actors are reading from the very same text as their World War II predecessors.

The most obvious example of this phenomenon: the rules of procedure for the modern-day military commissions, which were copied almost verbatim from those that Roosevelt established for trying the Nazi saboteurs. The tribunals will consist of seven members. A two-thirds vote is sufficient to secure a verdict. The tribunals will not be required to abide by the cumbersome rules of evidence that are a feature of civilian trials, or even military courts martial. Instead, the presiding officer can admit any evidence that, in his opinion, has "probative value to a reasonable person." (A bow to political correctness: In 1942, the phrase was "a reasonable man.") The appeals process is reduced to a review by the president or the secretary of defense.

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