Before the name was changed because of religious concerns, the mission in Afghanistan was named "Eternal Justice." Those who fear that President Bush's guidelines for military tribunals as well as the increased governmental powers in the fight against terrorism in general go too far also are worried about justice. Attorney General John Ashcroft, a controversial conservative choice for the position that over forty percent of the Senate opposed, testified in front of Congress yesterday to answer such criticism. His message was that the President had the authority, precedent supports it, and the times surely require it. Oh, and he made some petty cracks about Miranda rights and Osama TV, suggesting those concerned across the political spectrum about policies of questionable legality and policy value want terrorists to have OJ Simpson trials. Ashcroft did perk up when he defended not allowing the FBI to check files to see if the noncitizens in custody illegally have firearms. The administration's "just trust us" mantra was not advanced.

As the war goes our way, it is important to seriously think about the aftermath. Part of the problem is how to deal with the surrendering soldiers and accused terrorists that come into our custody. There are already various rules of international law that applies to prisoners of war and surrendering military forces, though the issue is complicated when we are dealing with civil wars. Civil Wars, surely of the nature involved in Afghanistan, involves hatreds and ongoing disputes that are not exactly settled by the usual legal niceties. Realistically, the best we can hope for is that the U.S. by means of our actual presence in the area (an international peacekeeping authority or force clearly has to be set up) or by formal and informal pressure reins in likely abuses. We do have some responsibility as civilized people and under international law for what happens in wars fought by us or our proxies for what happens next, as well as for practicable reasons that mistreatment will come back and bite us in ways we are all too familiar with already.

The proper means of trying terrorists and those who aid and support them is a much more troubling issue. As a preliminary matter, how they are treated will be an important precedent on how war crimes and other international disputes are handled in the future. As a nation based on law, and ideally a symbol and example to the world, our involvement in this area is quite important. Therefore, US opposition to a World Court (or perhaps various regional courts) of some sort to deal with serious violations of human rights is troubling. Did we not publicly and with various safeguards try Nazi war criminals at Nuremberg?

Nuremberg was a civilian trial that involved an open trial, multinational involvement, and various procedural safeguards. It should be noted as well that John F Kennedy in his book Profiles in Courage included Senator Robert Taft on account of his outspoken concern for the unprecedented war crimes and penalties established to try Nazi war criminals. Senator Taft felt such crimes (especially with their potential death penalty) were unfair ex post facto laws, that is, laws that did not exist when they were said to be broken. I believe Taft, if he was still in the Senate, would be among those voicing concern.

Nonetheless, a more important concern is the treatment of residents of this country, residents who without more are to be considered the (often long-term) legal residents with traditional rights of due process (fair procedure). Just last June the Supreme Court voiced concern about the unlimited detention of admittedly violent noncitizens, as well as supplying a right of appeal when Congress did not clearly say otherwise (if they had the right to limit it anyhow). Some of these residents are future citizens, others are part of the millions of foreigners who have from the beginning of this nation went to school, worked, and resided country. Some might even have had children in this nation, children who are full-fledged American citizens.

Both groups do not have full-fledged rights (for instance, their right to bear arms and to vote, as well as their freedom from being deported) of American citizens, nor should they. Those concerned that military tribunals and other methods used to determine their guilt would be unfair are on a whole not saying that they should have the rights of a typical person standing trial. Some do feel that we should try even Bin Laden (who most feel our government desires to be taken into custody in a body bag) via an ordinary trial to show everyone how we can fairly try even the worst evil doers. Nonetheless, it is somewhat naïve to think that we can treat the people involved as if they are average criminals, no matter who they are or what type of evidence is at stake.

For instance, I have previously noted how some are concerned that we now can listen on the attorney/client conversations of some of the accused terrorists. The alternative is likely not to be that they could have any lawyer they want (the fear information will be smuggled in and out is a valid one), but that there will be a "safe" list of attorneys. Also, as is the case now, if evidence comes out that the attorney is being used for nefarious ends, a judge can sign a warrant to allow the surveillance. Also, some national secrets surely should not be given to common jurors, even if a judge can examine it. I do think the fear that jurors would be at risk is overblown (we managed with Timothy McVeigh, mafia prosecutions, the first World Trade Center bombing, etc., and would such an attack really be in their best interests propaganda wise?). At any rate, suffice to say various limitations are valid, if to be used as sparingly as possible. In various cases, this might very well include military tribunals, a traditional means of handling out justice in wartime, especially in war zones (such as Afghanistan).

The broadest and most valid opposition to the preliminary rules set up by President Bush for military tribunals concerns the breadth of their authority. Supporters this link not only defends the concept, but links you to the actual rules set up by the President for this conflict] of these tribunals at times overplay their hand by ignoring these concerns, especially as applied to residents of this country. The President decides who are to be tried, along with the Secretary of Defense is the only one who can overturn the tribunal's decision (settled by a two-thirds vote, even in death penalty cases), and can use secret evidence to convict. The tribunals themselves also can be secret, and do not just include actual terrorists, but also those who aid and comfort them. Such vague terms and breadth of discretion makes one think of those accused of being communists or communist sympathizers during the 1950s.

Precedent does not totally alleviate such concerns. A favorite example supplied is the secret hearing given to Nazi saboteurs during World War II. Are foreign agents who come to our shores in U-boats during wartime to sabotage military and civilian facilities exactly comparable to sympathizers of the Taliban, who allegedly helped them in some fashion? Furthermore, the hearing of the military tribunal in this case was appealed to the Supreme Court. Finally, as discussed even by the supporter of the tribunal cited above, the secrecy of that hearing allowed the government to lie to an agent that helped bring his compatriots to justice, including giving him a much longer sentence and deporting him. With supporting precedents of this nature (ones stretched further than is arguably credible), who needs to even voice the negative side of military tribunals?

The military lawyer who tried to obtain typical American justice for the German spies later became President Truman's Secretary of War.

Military tribunals have had a long history, but not one that really fully helps the argument of those who support them today. The biggest concerns raised involves US residents living far away from the war zone, not trying members of the military or enemy combatants in foreign soil. Most precedents concern residents of war zone, including Mexico and no man land areas of Missouri during the Civil War. President Lincoln's Civil War use of military justice clearly involved some questionable activities, including one case that the US Supreme Court later used to state they are not to be used in areas under civilian control. A World War II case involving enemy agents did limit its breadth, but as noted, is questionable in itself. As was martial law and military justice used in Hawaii, which by the way also was in the midst of a war zone. Furthermore, international treaties and policy concerns (see below) have changed matters as well.

The logical application of said tribunals are for offenses by members of the military, justifying the use of military officials, scaled back rights of the accused, and scarce domestic review of their decisions. Civilians are not logical subjects of such tribunals, including US residents accused of crime (even treason usually is tried in civil, not military, courts). Exceptions would include areas under military control, such as foreign lands and domestic war zones. Thus, even actions against the US government during the Civil War were held not to be the domain of such courts when civilian courts were in session. Military justice is abridged justice, which is basically why some people are so gung ho for it when the accused are so despised (or as some would rather say, so dangerous).

Such caution is well placed given that precedents concerning treating people during wartime are of mixed value to guide current realities. Japanese internment during World War II and long term detention of American citizens without trial (how little we have learned; now there are thousands of assumed innocent legal residents in custody who have yet to been brought in front of a judge) during the Civil War are but two examples of the excesses of the past. Previous executive action does not mean President Bush should have set in place rules of military tribunals without discussing the matter with Congress in the present day. The same Congress that just passed legislation which expanded his power to investigate and try terrorists without giving him such broad discretion.

In the words of "Kangaroo Courts" by William Safire (NY Times, 11/26/01): "The U.C.M.J. [United Code of Military Justice, not the military courts established here] 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." Why? Three main reasons: procedural protections further (1) the search for truth (2) liberty (a concern even for members of the military) and (3) the reputation of the military as a fair institution. Therefore, Bush's military courts are not only a civil libertarian concern, but are counterproductive to many of our goals. We must therefore tread very carefully here.

Military tribunals raise international law and policy concerns, especially if they are secret and have limited rights for defends, such as no right of civilian appeal. Various nations that have (such as Spain) or might have wanted terrorists in their custody are wary about handing them over to the US, if the individuals will be tried by military tribunals. Such tribunals also send a bad message to nations and peoples that are distrustful of the United States, or are just looking for a reason to denounce us. Distrust that translates into more than bad feelings of millions of Muslims in the Middle East and closer to home, as we found out long before September 11. Furthermore, do we want our citizens and allies tried by military courts? Not an issue you say? How about Lori Berenson, rotting in a Peru jail, after convicted by a secret military court? Or various American citizens tried and convicted by suspect tribunals in nations like Afghanistan, China, and Russia? People that the nations distrusted and demonized on a level comparable to the alleged terrorist and terrorist sympathizers at issue here.

Furthermore, international law includes protections for those charged with war crimes. This is as it should be given the serious penalty involved and the importance of convicting the right individuals, as is the case in death penalty cases. The Geneva Convention, which sets forth such rules, requires a "regularly constituted court" that affords all due process guarantees, "which are recognized as indispensable by civilized peoples." This surely includes an open trial, the ability to know the evidence used against you, and the right of appeal to more than the US Department of Defense. Also, the prosecuting country is to "immediately" give out information about those imprisoned, making the United States' policy of keeping the names of some detained secret very suspect. How about if Cuba or Iraq detained an US citizen legally residing in one of those countries and failed to let it be known? If they basically said "trust us, it's a matter of national security," we would justly be suspicious. Suddenly, we are to believe the US can do no wrong in this department? Finally, the rules do not only apply to nations at war, but groups that reside in nations, as do the Taliban and Bin Ladin and company.

Military courts have their place, ideally to try members of the military, but also as emergency courts in war zones and perhaps in other special situations. Still, such courts must respect the basic rights of those tried under them, people who are not just to be assumed to be guilty with no rights a civilized society would any other time respect. We not only look like hypocrites by doing this, but most likely violate international law and our own best interests in the process.

Furthermore, generally trial by military courts (surely the ones suggested by the President's badly drawn up order) is not the way our justice system ideally favors. Surely, except for various cases during war time that involved many abuses, military courts should not be used to try residents of this country. Finally, Congress should have had a part in setting up the guidelines for the military courts, especially given that there was no desperate need for immediate action (surely no rush to try the individuals) , and the lack of an official war makes the President's power as commander in chief less clear cut. Justice does not disappear in wartime, surely it is not supposed to in our apparently more just and civilized society. Let us not let uncivilized action make it otherwise.

Though unilateral action is definitely worthy of concern, if Congress just legitimizes the President's actions, things would not be that much better. Furthermore, a Congress wary about declaring war (giving the President broad authority to use force uncomfortably comparible to Vietnam) suggests it does not really want to tread on the President's powers in these matters that much. Nonetheless, be it partly political or half-way, Congressional (and judicial) oversight is warranted an part of our system of justice. Finally, given the broader executive powers given to the President in the "Patriot Act" [including broader power to search, intern resident aliens with little judicial oversight] one would not be surprised Congress would give Bush wide discretion indeed. One reason why his apparent rush to go it alone is so troubling.