FORUM

[Editor's note: Professor Jones has applied for and received provisional recognition as Qualified Civilian Defense Counsel, making him eligible to appear before US Military Commissions established to try terror suspects. This column is the third in an exclusive series Professor Jones is writing for JURIST on his experiences.]

Sixteen years after his famous and devastating march through Georgia, the famous Union Army general and one-time practicing civil lawyer “Cump” Sherman penned these words:

I agree that it will be a grave error if by negligence we permit the military law to become emasculated by allowing lawyers to inject into it the principles derived from their practice in the civil courts, which belong to a totally different system of jurisprudence.

The object of the civil law is to secure to every human being in a community all the liberty, security, and happiness possible, consistent with the safety of all. The object of military law is to govern armies composed of strong men so as to be capable of exercising the largest measure of force at the will of the nation.

These objects are as wide apart as the poles, and each requires its own separate system of laws, statute and common. An army is a collection of armed men obliged to obey one man. Every enactment, every change of rules which impairs the principle weakens the army, impairs its value, and defeats the very object of its existence. All the traditions of civil lawyers are antagonistic to this vital principle, and military men must meet them on the threshold of discussion, else armies will become demoralized by even grafting on our code their deductions from civil practice.

But even against our own most primitive instincts, men and women have sought to delay the onset of the doctrine of last resort . . . by any means necessary. They seek instead to hold on to the higher ideals of natural law. Once the laws of nature take hold there really is no distinction between aggressor and defender. Once in play, the doctrine of any means necessary becomes the mantra of terrorists and onward Christian soldiers alike. Someone said that once a nation gives up cherished liberties to win the fight, it has already lost the fight. I disagree. There does come a time in every desperate battle when military necessity and fundamental justice - i.e., the Darwinian laws of nature and Plotinian and Aristotelian natural law - are simply incompatible; they cannot coexist. In such cases, fundamental judicial principles must give way to any means necessary. Sherman was therefore correct, but only as a matter of last resort. The Battle of Stalingrad, when men, women and children of whatever age or condition were given the choice of joining the fight or being shot by their comrades, is but one graphic historic example. Israeli’s decision to engage in targeted assassinations is another. Two epic battles, separated only by time, in which one side finally decided that fundamental judicial principles and military necessity were as “far apart as the poles.” But that time is far into the battle, not at the outset; that time is after all else has failed. Even those who fought in Sherman’s war sought, in the midst of madness and for as long as possible, to hold on to those fundamental principles of law that elevated men and women over the rest of God’s creatures.

Sophisticated lawyers and unlearned revolutionaries refer to the inalienable principles as “natural law.” These principles underlie both the United States Constitution and the Geneva Conventions. The Constitution states that “all men,” not just American men and women, are endowed with certain inalienable rights. To say that the Constitution does not apply extra-territorially is to deny the inalienability of the rights articulated. The Fundamental Rules of International Humanitarian Law states that “Everyone,” not just lawful combatants, shall be entitled to the benefit from fundamental judicial guarantees.” All men and everyone.

Unnamed sources assert that if prosecutors do not get their way in United States of America v. Zacarias Moussaoui, (No. 01-455-A, United States District Court, Eastern Division of Virginia) they will simply try Moussaoui before military tribunal. The “way” prosecutors are seeking is one that would try a human being for a capital offense and at the same time deny that human being the right to seek out and present evidence that might save his very life. The prosecutorial implication is that Sherman’s view must necessarily prevail right now, and that military law and tribunals stand eager to sacrifice fundamental principles of natural law. Due process, including the right to obtain and present exculpatory evidence is undoubtedly embodied in natural law, and therefore not forfeited by the place of one’s birth, the charges alleged, or the place of trial or detention. Prosecutors nevertheless imply that military necessity justifies their way. Unknowingly but necessarily they assert that a military tribunal ought to act in the same manner as Lt. Calley’s infantry platoon when it went into the village of My Lai some 35 years ago.

Unwarranted hyperbole? Inapposite analogy? The men of Charlie company - like the United States today - had suffered many casualties, rightly suspecting that the Vietcong were hiding in the village and that all the villagers were complicit. The villagers, many or most of whom may have indeed assisted the Vietcong (a likely fact that is wholly besides the point), were executed by an armed tribunal acting under the color of military necessity and without the basic right to present evidence of their non-complicity. The platoon exercised the law of nature and ignored natural law. Ironically, and sadly so, the villagers of My Lai shared the same fate as the nearly 3000 civilians who died working in the World Trade Center on September 11, 2001. Though in different tongue, terrorists used military necessity to justify their failure to distinguish civilians from combatants by due process, instead killing them all and letting God sort them out.

Killing Zacarias Moussaoui without resort to even the most basic of all fundamental rights - the right to obtain and seek evidence in defense of one’s existence - is the small scale equivalent of summarily executing a bunch of villagers tending vegetable gardens or steering a plane into building full of people typing on computers. And a military tribunal that goes along with such a “way” is no more a judicial tribunal than were the members of Lt. Calley’s platoon or the September 11th hijackers.

One might have assumed when Moussaoui was first indicted that he too would quickly become a victim of military necessity, and the laws of nature over natural law. Chicken little-ism is normally the rule during the early stages of any conflict. Surprisingly, though, the federal district judge before whom the case is being tried has ruled that the Government must decide between prosecuting its war or prosecuting an alleged war criminal, if indeed the choice is already as cut and dried as that. A close reading of the positive law applicable to military tribunals gives hope - despite prosecutors’ seeming confidence to the contrary - that Presiding Officers of those tribunals will feel bound to apply the same reasoning applied in federal district court.

This is neither the time nor place to assess those man-inspired arguments. That may come later. But if those positive law arguments fail, we must still be able to look at ourselves in the mirror and know that we have complied with the natural law upon which our civilized existence depends. True enough, war necessarily degenerates into barbarism and must be fought by men and women who, for a time, are forced to swallow hard and put aside natural law just as Sherman advocated so long ago. And indeed, even a conscientious Presiding Officer may be convinced at some point that that time has come. But certainly the war against terror has not deteriorated to such an extent that military necessity - the law of nature - cannot continue to exist in a role subordinate to fundamental justice embodied in natural law. Not yet.

October 16, 2003