Copyright 2004 Providence Publications, LLC
The Providence Journal (Rhode Island)
February 13, 2004 Friday
All Editions
SECTION: EDITORIAL; Pg. B-07

LENGTH: 891 words

HEADLINE: COMMENTARY - Military tribunals and Lincoln

BYLINE: FRANK J. WILLIAMS

BODY:


THE WAR that was started on Sept. 11, 2001, has yet again raised tensions between American security and civil liberties. President Bush is not the first president to authorize the use of military tribunals, rather than the normal justice system, in times of war.

Abraham Lincoln declared martial law and authorized such forums to try terrorists during the Civil War. Historically, military commissions during wartime began as traveling courts when there was a need to impose quick punishments. Such commissions do not enforce national law, but rather a body of international law that has evolved over the centuries.

Known as the law of war, one of its fundamental axioms is that combatants cannot target civilians.

It is clear that the 9/11 terrorists and detainees, whether apprehended in the United States or abroad, are neither protected under America's criminal justice system nor under the international law of war. Terrorists are not members of an organized command structure with someone responsible for their actions; they do not wear a military uniform so that the other side can spare civilians without fear of counterattacks by disguised fighters; they do not carry arms openly; and they do not respect the laws of war.

Yet questions remain about the degree to which terrorists known as "unlawful combatants" in legal jargon are entitled to legal protection.

Abraham Lincoln's actions may help explain the curtailment of civil liberties in dealing with such unlawful combatants. Jay Winik, in April 1865, wrote: "The President suspended the writ of habeas corpus and subjected all persons discouraging volunteer enlistments to martial law. To enforce this decree, a network of provost marshals promptly imprisoned several hundred anti-war activists and draft resisters, including five newspaper editors, three judges, a number of doctors, lawyers, journalists and prominent civic leaders."

Lincoln answered his critics with a reasoned constitutional argument. A national crisis existed and, in the interest of the nation's self-preservation, he had to act. He found the right of self-preservation in Article II, Section 1, of the Constitution, whereby the chief executive is required to "preserve, protect, and defend" it, and in Section 3, that he "take care that the laws be faithfully executed."

The whole of the laws, which were required to be "faithfully executed," were being resisted in nearly a third of the states. The question Lincoln asked is this: "Are all the laws but one [the right of habeas corpus] to go unexecuted, and the government itself go to pieces lest that one be violated?"

The verdict of history is that Lincoln's use of power did not constitute abuse.

If it appears there is some confusion about using military tribunals and classifying prisoners as either prisoners of war entitled to the rights under the Geneva Conventions or unlawful combatants who are entitled to no rights at all, it may be helpful to read the epilogue in Mark E. Neely Jr.'s The Fate of Liberty: "The clearest lesson is that there is no clear lesson in the Civil War no neat precedents, no ground rules, no map. War and its effect on civil liberties remain a frightening unknown."

Regardless of the course of action taken by President Bush, it must be remembered that, despite the law permitting such presidential action, no leader can succeed, whether the Geneva conventions apply or not, without the political support of the American people.

In the end, the emergency President Bush faces today assumes a different cast from the crisis of the Civil War, but may well present almost as mortal a threat to the life of the nation. Stern measures are clearly warranted, but it's easy to see how a leader's actions in invoking the law of war and the use of military tribunals may be as misunderstood today as they were in Lincoln's time.

Such measures, however, may be needed even more today than they were in the Civil War era. Robert E. Lee's surrender to Ulysses S. Grant at Appomattox and refusal to engage in prolonged guerrilla warfare saved countless lives. Conversely, American forces continue to encounter resistance even after the capture of Baghdad. American civilians are forced to live under a constant threat of terrorist attacks in our homeland.

These realities provide further justification for what some may perceive as a heavy-handed response by President Bush.

Lincoln's actions during the Civil War offer no neat legal precedents for the Bush administration to follow. But the political lesson is clear: Lincoln ultimately persuaded the public to support his wartime measures and won re-election in 1864 because he was able to remind the nation that the long-term goal was not simply to crush the rebellion, but to save the nation as the "last best hope of earth."

That truth and "public sentiment" remain as relevant today as they were then.

Frank J. Williams is chief justice of the Supreme Court of Rhode Island and founding chairman of the Lincoln Forum, a national organization that supports the study of Abraham Lincoln and the Civil War. His latest book, Judging Lincoln, was published by the Southern Illinois University Press. He is on a panel that will hear appeals from people being held at the U.S. base at Guant ?namo Bay, Cuba, on charges of terrorism.

Yesterday was the anniversary of the birth of Abraham Lincoln, in 1809.

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