"The first thing we do,
let's kill all the lawyers." Attorneys cite that famous line,
uttered by would-be revolutionaries in Shakespeare's "Henry VI,
Part II," as proof of their critical role in keeping "a nation of
laws" from devolving into anarchy. Those less enamored of the legal
profession cite it as proof that lawyers often serve the interests
of the elite at the expense of the general public.
Whatever your view, Shakespeare's line makes for good theater. In
today's world, though, lawyers play an unprecedented role in
life-and-death matters. For the first time, they are defining the
rules of a war -- the long war on global terror -- even as it's
being fought.
The rule of law is essential to a free society, but it is a
compact, not a suicide pact. Sometimes in their zealous protection
of civil liberties, advocates can go too far. The response of some
civil liberty and human rights lawyers to the Supreme Court
decision about whether we should try detainees at Guantanamo Bay
for war crimes offers a case in point.
Recently, the Supreme Court ruled in favor of Salim Ahmed Hamdan,
an al-Qaeda suspect held at the U.S. military base in
Guantánamo Bay, Cuba. Hamdan had challenged the government's
right to try him by the military commissions established by
President Bush.
The Court said that Congress had to authorize the commissions and
that trials had to be held in a "regularly constituted court that
affords the judicial guarantees recognized by all civilized
peoples," a standard outlined in the Geneva Conventions.
Administration critics trumpeted the ruling as a wholesale
rejection of the president's approach to the war on terror. In
reality, there's no fundamental disagreement between the
administration and the court. The Pentagon thought it had set up an
adequate process when it established the military commissions, and
it thought Congress had implicitly authorized them by approving the
tribunals in the Detainee Treatment Act in December 2005.
The Court merely said that congressional authorization must be
more explicit.
Now, prisoner advocacy groups want to use the court's decision as
an opportunity to lobby Congress to shape the commission procedures
more to their liking.
That's where things stood when I was called to testify before the
Senate Armed Services Committee recently-sitting on a panel with
four lawyers who all argued that the commissions didn't come close
to meeting the standards for a fair judicial process. They offered
a laundry list of what "judicial guarantees recognized by all
civilized peoples" meant. It was a list probably anyone who watches
"Law & Order" would recognize.
But according to the exhaustive standards these lawyers laid out,
the post-World II Nuremberg Trials would have been patently
illegitimate. For example, they tried individuals for "crimes
against humanity." The court had to invent a crime to cover the
magnitude of Nazi atrocities. That, however, violates one of the
criteria set out in the Senate hearings-trying individuals against
laws that didn't exist before the crimes were committed.
In retrospect, of course, we recognize the Nuremberg Trials as
completely legitimate -- and rightly so. They prosecuted a terrible
evil and followed the rule of law.
What the Nuremberg Trials did not do was bend over backwards to
give the defendants every advantage. The civilized countries that
put together the trials understood the difference between their
task and the job of prosecuting everyday criminals.
Governments have dual responsibilities -- protecting the interests
of the individual and the state. Normal law codes rightly put the
interest of the individual first and then modify laws as necessary
for national security interests and military necessity. That's what
the lawyers want to do at Guantanamo.
But this is case where we are trying to protect civil society from
people who want to utterly destroy it. A different approach is
required.
Rather than seek to amend normal legal procedures to address
security concerns, we should draft military commissions that put
the interests of national security first, and then amend them to
ensure that equitable elements of due process are included in the
procedures. That's what the government has tried to do, just as the
framers of the Nuremberg Trials did. It was the right call then,
and it's the right way now.
Congress doesn't need to listen to zealous lawyers. Congress can
satisfy its legal and national security obligations by
explicitly authorizing the proposed military commission
process. That would let the Bush Administration move forward
expeditiously and demonstrate once again its unswerving commitment
to fight the long war aggressively, according to the rule of
law.
James
Carafano is senior fellow at The
Heritage Foundation and co-author of "Winning the Long War: Lessons
from the Cold War for Defeating Terrorism and Preserving
Freedom."
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