When American military officers tried more than 1,600 Germans and 1,000 Japanese for war crimes after World War II, they convicted only 85% of them, a rate lower than the norm in federal courts today, a Senate committee was told Tuesday.
"I think these statistics speak volumes," said retired Maj. Gen. Michael J. Nardotti Jr., a former Army judge advocate general.
Although many have assumed that the military tribunals created by President Bush to try alleged terrorists would automatically convict whoever came before them, the historical record belies that, Nardotti said. It shows that past military trials were "done with fairness," he said.
The Justice Department obtained convictions last year against 88% of defendants indicted in federal crimes. However, most of the 76,952 defendants pleaded guilty. Of those who were tried by a jury, 74% were convicted, meaning that about 1 person in 4 was acquitted, said John Scalia, a Justice Department statistician.
The Senate Judiciary Committee met Tuesday to explore the issue of military tribunals with an array of legal experts. The panel heard from strong defendants of Bush's plan and from restrained critics.
The seven senators who attended the hearing split along the same lines. Republican members wholeheartedly endorsed the plan for military trials, whereas most of the Democrats offered tepid support for the notion and mild criticism of the details.
Sens. Charles E. Schumer (D-N.Y.), who chaired the hearing, and Dianne Feinstein (D-Calif.) said they could support military trials so long as they were targeted at the leaders of Al Qaeda, the terrorist network led by Osama bin Laden that administration officials believe is responsible for the Sept. 11 terrorist attacks.
"I, for one, think the goal of the tribunal is a good one: swift, fair, full justice without revealing national secrets or making the courthouse into a target for terror," Feinstein said.
But Bush's order authorizing the creation of military tribunals did not limit potential defendants to terrorist leaders captured overseas, Feinstein said. "Instead, even a longtime resident alien in the United States could suddenly be thrust before a secret tribunal of military officers. . . . This would indeed be of deep concern and deeply troubling," she said.
The administration's true intentions remain something of a mystery.
Three weeks ago, the White House issued the broadly worded order, authorizing military trials for any "noncitizen" who "aided or abetted" international terrorism or "threatened to cause adverse effects on the United States."
Once "I determine . . . there is reason to believe such an individual" qualifies as a terrorist threat, the person shall be taken into military custody and loses all rights to appeal to "any court of the United States," the president said in his order.
By its words, this order applies to the nearly 20 million noncitizens who are living in the United States. And it denies them the basic right to file a writ of habeas corpus, which asks a court to rule that they are being held unjustly.
Recently, however, the president's lawyers and aides have said that they did not intend such a broad sweep. Rather, they said they want to use military trials sparingly, and probably only for terrorist leaders captured overseas. And White House Counsel Alberto R. Gonzales has said that the order does not take away a defendant's right to appeal to a civilian court.
Harvard law professor Laurence H. Tribe, testifying Tuesday, blamed the administration for the confusion and consternation that followed its order.
"I wish the Orwellian technique of saying one thing and meaning another were not so common in Washington," he said. Rather than issuing a carefully thought-out legal plan, the White House order seems like "merely an announcement that we are going to cook up something in the Department of Defense," he said.
Tribe urged Congress to take up the issue and pass a bill that authorizes fair and targeted military tribunals for terrorists. "I would love to see it whittled down by Congress," he said, rather than leave the matter entirely to the executive branch and the courts.
The Republican senators said they saw no reason for congressional involvement.
On Thursday, the committee members convene again to hear from their former colleague, Atty. Gen. John Ashcroft.