ACLU Buries American History on Military Trials


ACRU Staff


July 20, 2010

In an effort to persuade the Administration and the American people to abandon military tribunals for their intended use in time of war, the ACLU hides the history of prior use of such trials, beginning with General George Washington. This deception only works if the press and people are ignorant of that history.

The facts for this article, but in no way the legal conclusions, come from a press release from the ACLU dated 12 July 2010, published on the website of a fellow-traveler website. (The list of organizations joined in in large measure parallels the organizations on the left who comprise the “170 organizations” that support the NAACP’s charge that the Tea Parties are “racist.”)

The release states that the ACLU “is at Guantanamo to observe the pretrial proceedings of Omar Khadr….” That is a military tribunal proceeding, and those are not open to the public in any way. The “observer” who is a “Human Rights Researcher is not present in the courtroom during any of these hearings, and must be relying on second-hand accounts from ACLU-allied defense counsel.

The press release states the ACLU’s “strong belief that terrorism cases should be tried in federal criminal courts and that military commissions are unable to deliver reliable justice and be shut down.” In line with the ACLU position, Omar Khadr said he would boycott the rest of the proceedings after the court refused to allow him to defend himself.

The defendant claimed that military commissions are constructed to “convict detainees, not to find the truth.” The ACLU “researcher” then states that “The Obama administration should shut down the illegitimate military commission system that has become a stain on our nation’s reputation….” What is this account missing? The facts.

The first use of a military tribunal in American history occurred before the United States even existed. In 1780, British Major John Andre concluded negotiations with American General Benedict Arnold for Arnold to betray the fort at West Point, then under Arnold’s command.

As Arnold was returning in civilian clothes to British headquarters in New York he was detained by an American patrol. When he was brought to General Washington’s headquarters, documents were found in his boot describing the intended betrayal.

As a soldier behind enemy lines and in civilian clothes, Andre was classified as an “illegal enemy combatant” under the law of war. He was subjected to a military tribunal under General George Washington, and was afforded counsel who offered a variety of defenses. He was found guilty. After British General Clinton refused to turn over Arnold in exchange for Andre, Andre was hanged.

Was this trial a “stain on our nation’s reputation”?

Another well-known military tribunal case occurred during WW II. Two groups of four German saboteurs entered the United States in 1942 from German submarines on the East Coast. They were captured, tried by military tribunals, found guilty, and six of the eight were sentenced to death. The US Supreme Court reviewed those trials and unanimously approved the procedures, in the Quirin case, in 1942.

Was this “a stain on our nation’s reputation”?

The ACLU’s attorneys and others are not so ignorant that they are unaware of the history of the use of military tribunals. However, the ACLU is counting on the ignorance of the American press and the American people of our military history, so that few people will know the vast dishonesty of the arguments of the ACLU.

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