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November 27, 2001

Spain Refuses to Extradite September 11 Suspects to the US for a Secret Military Tribunal

"As soon as German U-boats put eight saboteurs on U.S. shores during World War II, one of the eight called the F.B.I.to betray the mission but was brushed off as a crackpot. Days later, he called again and managed to persuade the F.B.I. he was an authentic saboteur. Partly to keep this embarrassment of bungled enforcement from becoming known, the eight were secretly tried by a military court inside the F.B.I. headquarters.

“Unexpectedly, a U.S. Army lawyer assigned to the Germans mounted a spirited defense. Col. Kenneth Royall, citing the landmark 1866 Supreme Court decision of Ex Parte Milligan—holding that martial law could not be applied where federal civil courts were in business—challenged the secret tribunal’s legality. F.D.R. told his attorney general, according to Francis Biddle’s memoirs, that he would resist any Supreme Court decision to give the accused saboteurs a regular court trial: "I won’t hand them over to any United States marshal armed with a writ of habeas corpus.” Confrontation was averted when a cowed Supreme Court unanimously acknowledged the extra-judicial power of a president armed with a Congressional declaration of war. Six of the eight captives went to the electric chair; J. Edgar Hoover was awarded a medal of honor.

“Now President Bush, with no such Congressional declaration, is using that Roosevelt mistake as precedent for his own dismaying departure from due process.”

The column is not written by an activist, a human rights lawyer, or someone who has herself experienced the injustice of a military tribunal. It is by the conservative New York Times columnist William Safire.

Unlike any other action since September 11, Bush’s unilateral creation of a military tribunal system has unifed voices across the political spectrum in protest. Reluctant U.S. allies in Europe are also finally putting their foot down. Spain, which caught and charged eight men for complicity in the Sept. 11 attacks, last week refused to turn over the suspects to a U.S. tribunal ordered to ignore rights normally accorded foreign defendants. Other members of the European Union are expected to follow.

European allies might also be suspicious of President Bush’s creation of a secret tribunal since it happened justdays after House and Senate negotiators prohibited any U.S. cooperation in the establishment of the International Criminal Court. The ICC is being established in the Netherlands to prosecute war crimes, genocide and other crimes against humanity.

Guests:

• Maria Carrion, former Democracy Now! producer and death penalty expert in Spain.
• Reed Brody, Human Rights Watch

Related link:

• Human Rights Watch

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