The proposed secret tribunals, if ever convened, would be flat-out illegal, and would run afoul of US law. I am not referring to what our courageous armchair strategists might sneer at as a fru-fru law of effete liberal conscience, or what our heroic and hawkish op-ed warriors might snidely dismiss as an abstract notion for Philosophy 101. No, I am talking about an honest-to-goodness, duly enacted, US penal statute, passed by Congress and signed by the President. That law is the US War Crimes Act of 1996 (18 USC 2441). The short version is that the US War Crimes Act incorporates the Geneva Convention, and Article 147 of the Geneva Convention bans secret military tribunals.
Incidentally, the US War Crimes Act was not around when FDR convened a secret military tribunal to try Nazi saboteurs in WW2, nor was it on the books when Lincoln authorized courts martial of civilians or suspended habeas corpus during the Civil War. Things are different now, and the enactment of this statute in 1996 renders the FDR and Lincoln precedents cited by Bush and Ashcroft in support of modern military tribunals inapplicable and meaningless – the classic apples and oranges comparison. Back then, there was a legal grey area, into which the Executive stepped and acted. There was no law prohibiting such tribunals. Now, there is. Because the legal landscape changed since the days of Lincoln and FDR, what might have been controversial but quasi-legal back then, is now controversial and expressly illegal. Criminal, too.
While the “realpolitik”-ers amongst our op-ed columnists who clamor for military tribunals contend that the end justifies the means, and that liberal notions of morality are optional in times like these (exit Andy Griffith, enter Dirty Harry), I submit that regardless of whether morality is optional or not, obeying the law is mandatory, not optional. That is the foundation of our system, and what sets us apart from banana republics.
The US War Crimes Act is serious business – the criminal sanctions include the death penalty. Under run-of-the-mill conspiracy and criminal enterprise theories of culpability, the criminal taint would cover the military members comprising the panels of such tribunals (“obeying orders” is no a defense if the order was illegal), those who facilitate the tribunals’ work, those who carry out the tribunals’ sentences, and, of course, those who give the orders for convening such tribunals in the first place – a tenacious US Attorney, and luckily for our democracy there has never been a shortage of those, could plausibly follow the chain of command all the way up to the Oval Office.
The US War Crimes Act is sitting on the books, silently awaiting those who would cross it. Through the secret military tribunals order, the Bush administration is threatening to do just that. I believe, or at least hope, that this is due to simple sloppiness on the part of the president’s advisors, who failed to do their homework by looking up the law when mulling the legality of what they proposed. The alternative explanation is that the administration was aware of the War Crimes Act, yet is courting a showdown with Congress and the judicial branch by deliberately choosing to violate that duly enacted criminal statute. I would give the Bush team the benefit of the doubt.