Bush Can't Have Justice Both Ways

[dutchdemocrat]

Bush Can't Have Justice Both Ways

By Peter Maguire
Peter Maguire has taught the laws of war at Columbia University and Bard College. He is the author of "Law and War: An American Story: and the forth-coming "Facing Death."

December 28, 2003

The discussion of an upcoming trial of Saddam Hussein was overshadowed by two appellate court decisions that serve as a sobering reminder to the Bush administration that presidential authority does not exist in a vacuum.

In separate cases, U.S. Courts of Appeals for the Second Circuit and Ninth Circuit ruled that "enemy combatants" should be granted lawyers and due process. Up to now, President George W. Bush and Attorney General John Ashcroft have played fast and loose with the laws of war and bent the rules to suit them. For the fallen Iraqi dictator, the president has called for a trial that meets international standards, yet here at home "enemy combatants" face primitive military tribunals.

Bush will soon learn that, in the unpredictable realm of political justice, he cannot have it both ways. The Bush administration would be wise to heed the warning of German legal theorist Otto Kirchheimer: "Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily turn to mere farce."

Since 9/11, the administration has declared that "enemy combatants" captured in the "war on terrorism" will be tried before traditional military tribunals following cautious precedents laid down by the U.S. Supreme Court in the 1942 Quirin case dealing with Nazi saboteurs who landed on Long Island, and the 1946 case of the fallen Japanese general Tomoyuki Yamashita. The "dirty bomber," Jose Padilla, presented an unusual case: He was both an American citizen and an aspiring al-Qaida terrorist. Arrested on U.S. soil, Padilla was declared an "enemy combatant" and held for close to two years without charges and without seeing his lawyer.

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http://www.newsday.com/news/local/longisland/politics/ny-vpmag283601208dec28,0,5677615.story?coll=ny-lipolitics-print