In the editorial, “Opposing View on Terror Trials: Trust U.S. Criminal Courts,” the ACLU’s Hina Shami conveys a rousing and eloquent denunciation of Guantanamo Bay. She calls for the President to try the suspected terrorists in civilian criminal courts. Unlike military commissions, these courts would provide the detainees with all the protections and safe guards of American civilians. She concludes by stating “That is the American way.”

General George Washington

Except it is not. At least not historically. Our first Commander in Chief, George Washington, used special commissions to try foreign enemy combatants (the bloody British!) on multiple occasions. General Washington and the other Founding Fathers assumed that foreign soldiers were certainly not entitled to the legal protections enjoyed by civilians and Americans. To them, it would be absurd to argue otherwise.

Take the case of the so-called “Andre Affair.” The young British soldier, John Andre, and his American Loyalist aid, Joshua Hett Smith, were caught helping Benedict Arnold betray West Point. When he caught Andre and Smith, Washington was seething. But he nevertheless afforded Smith the privileges of an American and referred him to a court of inquiry. The American Smith received a relatively thorough investigation and was eventually acquitted.

Andre, however, received no such protections. As much Washington sympathized with the young Brit’s plight, he tried him be a military commission. This gave Andre little chance to defend himself and he was swiftly hanged. Washington pitied Smith but saw this swift military justice as necessary to win the war.

Most would agree that Washington, the “Father of Our Country,” was a highly moral, principled man. Prior to the Constitution, it was this great man who served as the only Commander in Chief the young United States ever had. And when the Framers finally drafted the Constitution after the war, they empowered the new Presidency with the so-called “commander-in-chief powers” – and Washington was the living embodiment of what that meant. That supreme law of the land, defined so many years ago by that great general, still governs us today.

George Washington set many precedents. One of which is the option of the Commander in Chief to utilize ad hoc military commissions.  To Washington, the protection of America sometimes required them.