Ghost of a Tribunal Should Haunt Ashcroft

In his recent Senate testimony, U.S. Atty. Gen. John Ashcroft chided the critics of his anti-terrorist crusade for scaring “peace-loving people with phantoms of lost liberty.”

Obviously, Ashcroft is not haunted by the ghosts of any of the victims of the injustices perpetrated in the name of past American wars.

One forgotten ghost who should haunt the attorney general is buried just a short walk from Ashcroft’s Washington office. Her memory should be resurrected as we debate the merits of military tribunals to mete out justice to accused terrorists.

Among the most devastating terrorist acts in American history was the assassination of Abraham Lincoln by John Wilkes Booth.

In response, a military tribunal carried out an infamous miscarriage of justice: the execution of Mary Surratt.

Surratt was the proprietress of the boardinghouse where Booth plotted Lincoln’s death. On very thin evidence, including a notoriously unreliable snitch, she was convicted by a military tribunal of complicity in the plot and hanged with no review of her sentence by any civilian court.

No civilian court reviewed her sentence because the writ of habeas corpus had been suspended by Lincoln in an 1861 executive order at the outbreak of the Civil War.

The writ permits a court to demand the appearance of any confined person and inquire into the legality of his imprisonment.

There is a strong parallel here to the executive order signed by President Bush on Nov. 13.

The Bush order authorizes military tribunals to try noncitizens for terrorist acts. The trials would allow secret proceedings in which hearsay evidence would not be excluded and verdicts would require only a two-thirds concurrence.

Widely overlooked is the suspension of the writ of habeas corpus tucked in the order. It provides that “military tribunals shall have exclusive jurisdiction, and the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly

Whether habeas corpus can be suspended by executive order is an open question.

Article I of the Constitution, which enumerates the powers of Congress, provides that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The Supreme Court never ruled on the legality of Lincoln’s order because Congress itself suspended the writ in 1863. However, the court did declare in 1866 that military tribunals had no authority over civilians when the civil courts were open and available.

That ruling came too late for Mary Surratt, but it saved the life of her son, who also was accused of complicity in the Lincoln assassination plot.

He escaped trial by the military tribunal by fleeing to Europe. He was captured two years later and tried by a civilian jury.

Hearing the same evidence that sent his mother to her death, the jury was unable to reach a unanimous verdict, and the charges against him were dismissed.

The ghosts of past injustices should not scare us, but they might give us pause as we contemplate proposals to surrender some of our protections against abuse of governmental authority. Secret military tribunals might be justified on a battlefield, but they should have no authority to try those arrested in the U.S., regardless of their citizenship.

Our greatest protection lies in insisting upon full visibility of government actions, even when military necessity is offered as a justification for concealment.

The writ of habeas corpus protects the authority of our civil courts to inquire into the lawfulness of the detention of any person, and it should remain available to challenge the authority of military tribunals until Congress determines that public safety requires its suspension because of rebellion or invasion.

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Gerald F. Uelmen is a professor at Santa Clara University School of Law.