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The Hun is at the Gate
FrontPageMagazine.com| November 29, 2001
By Ann Coulter
THIS WEEK'S WINNER for best comedy line about the war is New York
Democratic Sen. Charles Schumer.
Referring to – well, it doesn't really matter what he was referring
to, but
it was military tribunals – Schumer said: "To come up with the best
way to do
this, Congress ought to be involved."
Congress came up with the
Internal Revenue code, right? And the whole United States code?
That's just
what we need – Congress involved in emergency national security
measures!
Under the self-aggrandizing
delusion that their input is necessary during wartime, various
congressmen are
trying to haul Attorney General Ashcroft before them to answer
questions about
the detentions and military tribunals for suspected terrorists.
Democrats are channeling
their frustration with America's imminent military victory in
Afghanistan into
hysterical opposition to reasonable national security measures at
home. (Incidentally,
this ought to prove once and for all what a bunch of paper tigers
the Russians
are. What were they doing over there for 10 years? It hasn't taken
us 10 weeks.)
Fortunately, Congress has
no role in prosecuting this war either abroad or domestically. They
are relieved
of duty, free to "get back to normal," as the president has
recommended – which
in their case means enacting massive spending bills to fund
comically useless
government programs. That should make them happy.
Sen. Patrick Leahy, another
Democrat, has blustered that there "has been no formal declaration of war and,
in the meantime, our civilian courts remain open and available to try suspected
terrorists." Consequently, he said, questions are raised "about whether the
president can lawfully authorize the use of military commissions to try persons
arrested here."
Though I am sublimely confident
that the public will recognize Leahy for the sputtering fool that he is, I note
that: We are at war. We have been at war since 8:48 a.m. Tuesday, Sept. 11,
2001. A precise talismanic formulation by Congress is not necessary to inform
us of this fact.
Wars can exist even if
Congress does not declare them if, for example, thousands of civilians are
slaughtered
in a surprise attack on American soil. On the off chance anyone didn't know
that we were at war as of 8:48 a.m. Tuesday, Sept. 11, 2001, Bush said so in
his address to a joint session of Congress the week after the attack: "On September
the 11th, enemies of freedom committed an act of war against our country."
A formal declaration of
war has certain consequences only under international law, not relevant to any
domestic security measures taken under the president's war powers, such as military
tribunals.
Even if "international
law" were relevant here – which it isn't – as the masterful United Nations has
demonstrated once again during the current conflict, international law is like
Santa Claus. The only difference is that Santa Claus exists only in the imaginations
of small children, whereas international law also exists in law school classrooms.
In the corporeal world, international law is whatever the United States and
Great Britain say it is.
Because we are at war,
and moreover, because the president is the commander in chief, Bush had authority
on Sept. 11 to give orders to shoot down the fourth plane if it had circled
back toward Washington. Because we are at war, Bush had authority to bomb
Afghanistan.
He didn't need congressional approval for those actions any more than he needs
congressional approval right now to try any suspected belligerents on U.S. soil
in military tribunals.
If Congress doesn't like
it, the Constitution gives it two choices: It can cut off funding, or it can impeach
the president. Congress controls the purse – it doesn't wage war. Knock
yourselves out, boys. (Has anyone else noticed there have been no polls taken
on the issue of military tribunals for terrorists?)
In 1942, six months after
Pearl Harbor, the Supreme Court upheld the use of military tribunals for eight
German spies captured on U.S. soil, two of whom were U.S. citizens. In that
case, Ex Parte Quirin, the court found that military tribunals were appropriate
for suspected enemies who have "entered or after entry remained in our territory
without uniform" intending to engage in an act of belligerency against the United
States. (And the Huns were accused only of planning attacks on war materials
– not on U.S. citizens.)
The Supreme Court decided
Quirin in less than 24 hours. Three days later, the military tribunal
found the saboteurs guilty. Five days after that, six of the eight were executed,
including Herbert Hans Haupt, a U.S. citizen. Only the two who had ratted out
the plot were given prison sentences instead of death.
Though Bush has ordered
military tribunals only for non-citizens, the Quirin court did not exempt citizens
from trial in military tribunals. "Citizenship in the United States" provides
no shelter, the court held, if "unlawful belligerency is the gravamen of the
offense." Citizens who associate with the enemy – "with its aid, guidance and
direction" – are "enemy belligerents."
The fact that the "courts
are open" – the phrase absurdly invoked by Sen. Leahy – refers to the Supreme
Court's decision in Ex Parte Milligan holding that military tribunals
"can never be applied to citizens ... where the courts are open and their process
unobstructed."
Note first the use of the
word "citizen" in that sentence. Note further the Supreme Court's
subsequent holding in Quirin that citizens can be tried in military
tribunals. Indeed,
the Quirin court expressly distinguished Milligan's case from the
Nazi saboteurs'
case on the grounds that Milligan "was not an enemy belligerent."
When Ashcroft is forced
to waste his time in Senate hearings this week instead of
protecting the nation
from more terrorist attacks, he should remind them that there's no
exemption
for senators either.
Ann Coulter is a bestselling
author and syndicated columnist. Her latest book is High
Crimes and Misdemeanors: The Case Against Bill Clinton
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