NRO

Give Tribunals a Try Why Safire & co. need to calm down.

November 16, 2001 2:05 p.m. At first, I just assumed someone slipped Bill Safire some bad acid. His column on Thursday was so histrionic in its conclusions, and so elliptical in its logic, I expected him to start screaming that there were spiders all over him or that his clock was melting. But, it seems he's actually serious.

The one columnist the New York Times claims is a "conservative" begins his column:

Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.

And then he gets hysterical.

And it looks like whatever Safire's been drinking has gotten into the water supply, because my Washington Post this morning breathlessly declares: "Mr. Bush is claiming for himself the authority to unilaterally exempt a class of people accused of particular crimes from the protections of the Constitution."

Um, yeah. That "class of people" is called "the enemy." Or maybe I'm missing something.

Let's back up for a second. The president has announced that he might invoke his authority to try captured combatants in military tribunals, if he deems it necessary, in this obviously amorphous war on terrorism. It's not clear he will use this power at all, but it is clear he will not use it on American citizens. The consensus seems to be that this is a policy in anticipation of the unfortunate capture — as opposed to the fortunate killing — of Osama bin Laden or one of his top aides.

In other words, if we catch a foreigner in Afghanistan — or in Cleveland — who was directly involved in killing Americans, we might not resort to reading him his Miranda rights and put him on public trial in a civilian court. Then again, we might. But either way, by all accounts, the decision will be made based upon the risks to national security of putting classified information into the public record, or of giving a microphone to Osama bin Laden. There's also the issue of asking civilian jurors — never mind judges — to risk their lives by putting a terrorist on trial. And, there's also a concern that Americans would be subjected to endless hijackings, kidnappings, and attacks until bin Laden (or one his associates) was released.

Now, it's fine to disagree with the decision. Though actually, the only thing that's been decided is to make the announcement that the president has this power and might use it (as U.S. presidents have, from time to time, for two centuries). It may not be worth the public-relations fallout. It may not be worth the trouble or the precedent or whatever. Fine, fine, fine; these are all legitimate points.

But if you listen to the critics on TV, or read Safire's column, you'd think the United States was handing out blindfolds in Times Square and shooting people willy-nilly.

What's funny is that this is entirely a legalistic or ethical argument. It has absolutely nothing to do with morality. Safire has no problem with summarily killing Osama bin Laden in Afghanistan. He even suggests that we should kill him if he surrenders — so long as we can get away with it. He seems untroubled by the fact that we are certainly killing some number of innocent people, who have no connection to al Qaeda, with our bombing campaign. I'm not too troubled by it either, but surely, as a matter of morality, it's worse to kill the undeserving without any trial than to kill the deserving with a less-than-perfect military trial.

That's what I find so offensive about Safire's tone. He's hurling accusations of bad faith and assuming a stance of moral outrage when he doesn't really care about the actual justice, only about the procedures. It's the equivalent of saying, "I don't care about the killing, but you have to file the right paperwork."

Indeed, by setting such a high political price for taking prisoners, Safire & co. are actually encouraging more summary executions. The administration gets a free pass on killing people in Afghanistan. But if they take anyone alive, they have to jump through the hoops of an internationally embarrassing and militarily dangerous trial. Why wouldn't the administration simply say, "Who needs the hassles? Kill 'em all."

Three soldiers in a cave with shoot-to-kill orders make a less-fair tribunal than do three officers in a wood-paneled room with a jury and a legal advocate. But Safire doesn't care about that.

The Case For Tribunals Now, of course, procedures matter. But I still don't understand all the fuss over the idea of military tribunals. Admittedly, I'm not a well-versed student of the Geneva Convention, but I could swear that in times of war, spies get shot. At least, that's what everyone said in all those WWII movies, like The Great Escape. "You are out of uniform. Therefore you are a spy and shall be summarily shot," declared some British actor in an SS uniform.

Actually, the Geneva Convention is just one of a pile of rules set up by "civilized nations" over millennia, to minimize the horror of war. Since ancient times, nations and even tribes have worked on rules to safeguard the treatment of civilians, soldiers, and just about everybody else during war.

One such convention is the uniform. Uniforms have lots of benefits, but one of them is that they help soldiers keep from killing people who aren't soldiers. "The enemy is over there; the guys in the turquoise jackets and brown pants. You can kill them, not the women in the skirts or the old men in the vests." The guys in the turquoise jackets and brown pants got similar orders. In other words, soldiers should fight soldiers. Period.

Of course, that was always a rule of thumb more than an iron law. And it got especially fudged in the modern era, when civilian production centers became central to the machinery of war. That's why they came up with the Geneva Convention — to update the rules of war in the era of total war.

But here's the important thing: If you reject the Geneva Convention and the other rules of civilized nations, you don't become entitled to better treatment if you get caught. If you did, why would anyone sign it? The whole point of civilization is that those who abide by its rules get better treatment than those who do not. Al Qaeda doesn't issue uniforms. All of their soldiers are essentially spies — not civilians. They infiltrate a nation and attack civilian targets without warning. By not making it clear that they are combatants — here or abroad — they are in effect using civilians as camouflage, or human shields.

But for some reason, Safire & co. think that the fact that they don't look like soldiers means they should be treated better than soldiers. After all, would Safire — or the Washington Post — have a problem with a military tribunal for an Iraqi colonel captured during the Gulf War? Okay, maybe they would. But I doubt Safire would sputter about a "panic stricken attorney general" or denounce American "kangaroo courts."

Look: You cannot expressly declare war on American civilians, blow up a bunch of them with stolen civilian aircraft, and then, when you get caught, expect to be treated according to the highest standards of the civilized world.

This, as the clichι goes, is a new kind of war. But it is not a new kind of war by our choosing. If it were up to us, there'd be no war at all. And if we could choose the sort of war had to fight, it would be a conventional one with a nearby country, and with a uniformed army using tanks and planes or, better, Nerf bats.

Alas, you can't always get what you want. But just because the enemy is too cowardly to put on a uniform, that doesn't mean we should treat him better than we would a soldier brave enough to put one on.

-- Anonymous, November 16, 2001