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To: Lane3 who wrote (19530)	8/20/2002 9:44:04 AM
From: Lane3	Respond to of 21057

Tucson, Arizona Tuesday, 20 August 2002 Combatants should face military, not civil, courts By Paul Greenberg And now for today's burning legal issue. You decide: Of the estimated 1,200 people swept up by the authorities after Sept. 11, 74 were still being held on immigration violations, 73 on criminal charges and most of the rest have been shown the door. Their names were never made public. Should they have been? Judge Gladys Kessler of the U.S. District Court in Washington, D.C., has supplied her own answer to that question: She's ordered the Bush administration to release the names. Even if it may compromise efforts to break up the terrorist network. Because this is America and here we have no secret arrests. Kessler's division of priorities between the executive and judicial branches is too neat for comfort and for reality. Both must be concerned about national security; both must be concerned about our liberties. The unavoidable challenge is how to respect basic rights and yet protect the nation from an enemy who would use those rights to undermine it. One way out of this dilemma is to use military courts; civil courts have already demonstrated how to make a mess of this delicate assignment: In one courtroom, you have Zacarias Moussaoui's own personal circus: He pleads guilty. Judge doesn't accept. The trial has been postponed 'til next year. In another courtroom, Johnny bin Walker Lindh admits to taking up arms against the United States of America and gets a mere 20 years with time off for good behavior. Another American by fortunate accident of birth, Yaser Esam Hamdi, is captured in Afghanistan and transferred to a Navy brig in Norfolk, Va., where he demands a lawyer and all the things that go with a civil trial. Will our enemies now begin negotiating their plea bargains as soon as they're captured? Civilian courts should be reserved for trying civilians. Military courts should try combatants. Even unlawful ones. Especially unlawful ones. What should be done with the prisoners picked up and secretly detained by the FBI, INS and other agencies in the wake of Sept. 11? This is a new kind of enemy we face, and a new legal approach is needed. A civil court should make the decision - on a case-by-case basis - about which of these detainees the government may hold, in secret, for a limited time. Because to release the name of suspected terrorists might tip off their confederates. There's a precedent handy: Judges secretly approve wiretaps for Mafia dons. Why not have those same judges supervise the detention of suspected saboteurs, too? By letting authorities keep some arrests secret yet court-supervised, the War Against Terror could go on unimpeded. But judges independent of the prosecutors would have the final say. Such a compromise would protect our civil liberties and our citizens. There is an art to these matters not unlike prudence. President Lincoln, criticized for suspending habeas corpus in the midst of a war, responded by asking: Should we allow the entire Constitution to be threatened to preserve just one part? The Supreme Court of that same wartime era handed down a controlling decision in such cases when it ruled that military tribunals may not sit in judgment on American civilians if civil courts are available. Let it be noted, however, that the court did not make its decision until 1866. By then, the war was over, and the danger to the Union had safely passed. How prudent. Robert Jackson, who would become a justice of that same Supreme Court a century later, summed up the matter: The Constitution of the United States, he once noted, is not a suicide pact. * Paul Greenberg is editorial page editor of the Arkansas Democrat-Gazette, 121 Capitol St., Little Rock AR 72201; e-mail: paul_greenberg@ adg.ardemgaz.com.