An example of military justice. (Watch On The Right).

George W. Bush has decided to take advantage of strong public support for his role as commander-in-chief in what he has called a "war against terrorism." It is his war because, although he hasn't asked Congress for an official declaration of war, he has ordered troops into combat, air strikes in Afghanistan, and claimed sweeping powers for military tribunals.

New York Times columnist William Satire calls these "kangaroo courts for people [Bush] designates, before trial, to be terrorists." These are military courts whose trials won't be public and won't have juries; defendants won't have the right to choose counsel or access to other rights within the American system of justice. Satire--whose columns reflect a right-wing, pro-Republican point of view--nevertheless said Bush's proclamation is "an assumption of dictatorial power to ignore our courts."

Bush's spokespeople have asserted that he wants to avoid danger to potential jurists in a civil trial and that military courts will provide fair and lawful trials to noncitizens according to the Uniform Code of Military Justice.

I have had experience with military justice on several occasions. The most recent was during the former President Bush's war against Iraq. A description of military justice during the Gulf War will demonstrate the level of injustice and deprivation of human rights I observed.

It was the case of Yolanda Huet-Vaughn, a medical doctor who, as a conscientious objector, refused to submit to mobilization of her National Guard unit in Kansas for the U.S. military action in what became the Gulf War. She spoke publicly against it, appearing on a national television talk show and at a Washington, D.C., anti-war rally before she returned to Kansas City to submit voluntarily to military authorities to face court martial.

Her military trial was held at the isolated Fort Leonard Wood in the Ozark Mountains of southern Missouri--about as far from a major metropolitan city and public exposure as the army could get. I was present throughout and, as an expert witness on conscientious objection, was the only civilian permitted throughout the special preliminary hearing on whether she was a sincere conscientious objector.

There were numerous military witnesses as to her conscientious objection, one of them Major Mark Borserine, a unit commander of the Kansas National Guard. The Catholic chaplain at Fort Leonard Wood, in a five-page written opinion, had validated her claim to be a sincere (Catholic) religious objector. The hearing officer admitted to me privately that Huet-Vaughn was a sincere objector, but he claimed it was a political objection to this particular war.

The trial itself was a judicial farce, as it was apparent the army had decided in advance of proceedings to convict and make an example of her. There was no jury of her peers; it was composed entirely of officers of rank superior to hers. The jury of seven didn't include a single woman, nor did it reflect consideration of the defendant's status as a medical doctor and a Hispanic-American citizen. Whether the latter figured into the military attitude toward her is, of course, unknown. However, one reason this case is worth reviewing here is not simply to show the unfairness of this particular trial but to speculate what might have been Huet-Vaughn's situation if today's Bush plan for military tribunals was in effect.

Dr. Huet-Vaughn, the daughter of a medical doctor in Mexico, was five years old when her family emigrated to the United States. She had actually enlisted in the U.S. Army Reserves during medical school as a kind of link to her father, who had belonged to a medical unit in the Mexican military. She also knew that U.S. medical reserve units have been sent to places like Honduras and Bolivia in Latin America. Her command of Spanish had already been useful in her training as a reservist.

Although she had supporters in the Kansas City area who surrounded her in the emotionally charged meeting in an interracial church, where she surrendered to the authorities, the patriots of the Gulf War vilified her in the press and there was an effort to get her license to practice medicine revoked.

It isn't difficult to imagine that the call of "Revoke her citizenship!" seen in some letters to local newspapers might receive serious attention today. How likely is it that some citizens are among those unnamed persons currently being held by John Ashcroft's Justice Department in preparation for one of George W.'s tribunals?

To return to Huet-Vaughn's trial: it began in May 1991 with a preliminary hearing at which her defense team presented Professor Francis A. Boyle, an expert on international law, who introduced in her defense the argument that Bush's action in the Gulf War was illegal under international law. As reported in the May 7, 1991, Kansas City Star, he said:

   The Nuremberg Charter applies in this case. A military person has an
   obligation not to obey illegal orders. If a person knows the order is
   illegal, then they have the right to disobey the order. International law
   makes it quite clear and even the military manuals make it clear that U.S.
   soldiers are under no obligation to involve themselves in criminal
   activities. It was clear before the war started that high-level officials
   were planning and preparing to commit violations of the laws and customs of
   warfare, including the bombing of Iraqi cities. This is a Nuremberg crime.

Also testifying for Huet-Vanghn, former U.S. Attorney-General Ramsay Clark wrote that the doctor was acting properly in refusing to join her unit in going to the Persian Gulf because "the war was a criminal act." Dr. Victor Sidel, a professor active in Physicians for Social Responsibility, said, "If you feel that an action you will take will cause more harm than good, then you must refuse to take part" (Kansas City Star, May 8, 1991).

At the court martial itself, the judge permitted Dr. Huet-Vaughn to testify on her own behalf but wouldn't allow her to explain her reasons for refusing to go to Saudi Arabia. Luther C. West, one of her defense attorneys, told the judge during a hearing on motions that preceded the court martial, that with this particular stricture, "You're just taking away the guts of her defense when you do that."

Initially I was denied permission to appear at the court martial but then was accepted as a witness only to testify as to Dr. Huet-Vaughn's sincerity. Roman Catholic Bishop Gumbleton, although present on the first day of trial, was rejected, as was Ramsay Clark.

For the prosecution, Captain Dean Mings, Huet-Vanghn's recruiting officer, claimed she told him she knew she was guilty but said she was convinced the army wouldn't give her the maximum sentence. Huet-Vaughn denied under oath that she had ever made such a statement. And her attorney accused Mings of lying by asking why, when the officer reported in a preliminary hearing that he had a conversation with her, he made no such assertion then.

The charge of desertion or going absent without leave was upheld, and Yolanda Huet-Vaughn was sentenced to two-and-a-half years of hard labor, forfeiture of pay, and dismissal. The detention was to be served at Fort Leavenworth, Kansas.

My conclusions about the trial are that the army judge didn't conduct a fair trial, he had his mind made up ahead of time as to the guilt of the defendant, and the two issues raised--the argument that the Gulf War was illegal under international law and that Huet-Vaughn's sincerity as a conscientious objector was supported by testimony--were ignored.

In such trials, which aren't open to challenge or review by civilian courts, military judges aren't accountable to civilian courts of appeal and can act arbitrarily to prevent a fair or adequate trial. George W. Bush has enough military advisers to know this. He has also been made aware of how his idea of military tribunals is received by other countries. As Safire reported in the November 26, 2001, New York Times, Bush was told by Spain, which arrested eight men for complicity in the September 11 attacks, that it wouldn't turn over these suspects to "a U.S. tribunal ordered to ignore rights normally accorded to alien defendants." Media in England have carried numerous articles warning against the tribunals. And in late January, Canadian citizens accused their own government of violating the Geneva Convention by handing detainees over to the U.S. military.

It is obvious that a military tribunal can deny any defendant the opportunity even to present a defense.

The mere fact that George W. Bush wants secret military trials of "terrorists" rather than trials in an international or U.S. civilian court is, in effect, an advance judgment that the detainees are in fact terrorists. Some may be suspects simply because they violated immigration or other laws. Without the possibility of any court of appeal, the only check on presidential judgment is that European and perhaps other countries won't submit alleged terrorists arrested on their soil to be judged by U.S. military tribunals or, in effect, kangaroo courts without safeguards or the standards of civil courts.

John M. Swomley is professor emeritus of social ethics at St. Paul School of Theology in Kansas City, Missouri.