Known and Unknown - Donald Rumsfeld [317]
The eight saboteurs were promptly rounded up. There were demands in the press for their swift execution, which FDR favored. He wrote to his attorney general that “[s]urely they are as guilty as it is possible to be and it seems to me that the death penalty is almost obligatory.”4 In three days, FDR’s military commission—meeting in secrecy on the Justice Department’s fifth floor in downtown Washington—tried, convicted, and sentenced the eight to death. A total of six weeks elapsed between the capture of the saboteurs and their execution.
Critics characterized the President’s November 2001 military order as vague and sweeping. Given the uncertainties of the time, it was perhaps inevitable that aspects of the President’s order were imprecise.5 Its purpose was to establish only the framework of the military commissions, which led some critics to assume the worst. My longtime friend and New York Times columnist Bill Safire criticized the proposed tribunals as “kangaroo courts.”6 I was determined to prove this criticism wrong and to see that the military commissions were fair and would be a credit to America.
Believing in the value of tapping into the expertise, judgment, and experience of experts outside the government, I assembled nine distinguished legal minds from across the political and philosophical spectrum to serve as an outside advisory group to the Defense Department. Government experts are helpful and needed, but it’s important to hedge against insularity. I thought the outside group could help fashion rules and procedures for the military commissions and to address the arguments fair-minded critics might raise against them.
We came to refer to this outside group, in shorthand, as the Wise Men. Though they were all wise, they were not all men. They included: Lloyd Cutler, White House counsel to Presidents Carter and Clinton, who had been a junior member of the 1942 team that prosecuted the Nazi saboteurs before FDR’s military commission; Bill Coleman, President Ford’s transportation secretary, a civil rights hero who was the first black law clerk at the U.S. Supreme Court; Bernard Meltzer, a renowned University of Chicago legal scholar, who served as one of the prosecutors at the Nuremburg war crimes trials; Griffin Bell, attorney general for President Carter; Newt Minow, a distinguished Chicago attorney, who had served as President Kennedy’s chairman of the Federal Communications Commission; Martin Hoffmann, a former DoD general counsel and former secretary of the Army; Terry O’Donnell, a veteran Washington attorney and former Air Force judge advocate general; Bill Webster, who had been director of the CIA and director of the FBI; and Ruth Wedgwood, a former federal prosecutor and law professor at Yale and the Johns Hopkins School of Advanced International Studies.
This bipartisan group was not of a mind to rubber-stamp any proposal sent their direction. They were individuals of independent judgment who often disagreed among themselves. They worked closely with Pentagon lawyers to consider precedents, review the legal basis for the commissions, advise on the rules of evidence and procedure for the trials and appeals, and offer comments and criticism regarding all aspects of these complex issues. We were determined to create a process considerably more protective of the rights of the accused than any previous military commission in our nation’s history.
Standing together with the Wise Men, I announced Military Commission Order Number One on March 21, 2002. Among the protections provided for defendants were: the defendant was presumed innocent; the defendant had rights to counsel and to a public trial; and guilt had to be proven “beyond a reasonable doubt” a two-thirds vote of a military commission was required to