Retired Superior Court Judge Stephen J. Fortunato Jr.: “Most people who understand history don’t think the sky is falling and we should be in panic mode. And, I must add, George Bush is no Abraham Lincoln. He’s not even a Martin Van Buren.”

The Providence Journal / ANDREW DICKERMAN

In the latest edition of the Roger Williams University Law Review, state Supreme Court Chief Justice Frank J. Williams defends military tribunals and the detention of suspected terrorists at Guantanamo Bay, Cuba, drawing parallels to Abraham Lincoln’s actions during the Civil War.

Williams is a Lincoln expert and collector who, in 2003, was appointed by then-Defense Secretary Donald H. Rumsfeld to a military panel established to hear appeals from those detained at Guantanamo Bay. Williams and two law clerks, Nicole J. Dulude and Kimberly A. Tracey, are listed as authors of the 74-page law review article.

“Criticism surrounding the Bush administration’s decisions about how to safeguard the United States seems to these writers to be particularly ill-founded when one considers that the president’s actions pale in comparison to actions taken by prior presidents, such as Abraham Lincoln, who, despite the widespread suspension of habeas corpus, is still ranked among the nation’s greatest leaders,” the article states.

“The Bush administration, like Lincoln, is faced with yet another grave national emergency that requires unpopular decisions,” the article says.

The article is drawing criticism from retired Superior Court Judge Stephen J. Fortunato Jr., a former civil-rights and criminal defense lawyer who is now an adjunct professor at the Roger Williams University School of Law.

In an interview, Fortunato said he does not take issue with the fact that Williams wrote the law review article; he said the test will be whether a detainee’s lawyer uses the article to challenge Williams’ impartiality.

But Fortunato said he does take issue with the conclusions Williams reaches. “It’s surprising to me that this current situation can in any way be likened to a civil war within our own borders,” he said. “In a short carriage ride to the Potomac, Lincoln could see the smoke of battlefields. A rival government was established on our soil, and there were rebel armies all over the place.”

Fortunato said, “Most people who understand history don’t think the sky is falling and we should be in panic mode. And, I must add, George Bush is no Abraham Lincoln. He’s not even a Martin Van Buren.”

In an interview, Williams said Fortunato is entitled to his opinion, but he underscored the terrorist threat, saying, “If you went over the Brooklyn Bridge on 9/11, you could have seen smoke coming from the World Trade Center towers. If you crossed the bridge at the Lincoln Memorial to Arlington on 9/11, you could have seen smoke rising from the Pentagon.”

Williams, an adjunct professor at the Roger Williams law school and the Naval War College, said, “Historically, military commissions have always been used for these guerrilla/terrorist attacks because they fall outside the normal criminal activity. This is nothing new.”

In 2004, Fortunato wrote a magazine article asserting that Williams’ statements in a speech and an op-ed piece demonstrated Williams had “prejudged the status of the Guantanamo prisoners.” At the time, Williams denied any impropriety, saying his comments “were made in a historical context.”

Last week, Williams noted the first page of the law review article contains a footnote saying: “Although Chief Justice Williams is a member of the Court of Military Commissions Review, nothing stated in this article should be construed as prejudgment by him of any cases that may reach that court.”

“All we are doing,” Williams said, “is discussing the issue in a historical context, saying what the status is now, and saying this is one plausible way of dealing with this conundrum of how to deal with alleged terrorists when there has been no protocol prior to this.”

The article begins with a quote from Lincoln: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Lincoln posed that question in 1861 in response to critics who said the Constitution authorizes only Congress — and not the president — to suspend the writ of habeas corpus, which allows courts to immediately determine the legality of someone’s detention.

The article explains that Lincoln suspended habeas corpus when “the nation’s capital was in jeopardy,” and while critics “bemoaned” his decision, Lincoln believed “nothing would be worse than allowing the nation to succumb to Confederate forces.”

The article discusses how in 1862 Lincoln declared martial law and authorized the use of military tribunals to try civilians in the United States who were “guilty of disloyal practice” or provided “aid and comfort to Rebels.” It details how a congressman, Clement L. Vallandigham, of Ohio, was arrested and tried before a military commission after giving a speech that sharply criticized the war and called for overthrowing Lincoln.

The article also chronicles the terrorist attacks of Sept. 11, 2001, and the legal cases that followed, addressing the balance between civil liberties and national security. In Hamdan v. Rumsfeld, the U.S. Supreme Court ruled that Mr. Bush’s first attempt at forming military commissions violated the Uniform Code of Military Justice and the four Geneva Conventions signed in 1956. Four members of the court advised the president to reconsider his strategy and seek congressional authorization, the article says.

And last year, Congress passed the Military Commissions Act, establishing the jurisdiction of military tribunals. “Admittedly, the [act] precludes alien detainees from seeking immediate review of their detention, but it does so by exchanging that opportunity for protections that include four separate levels of judicial review,” the article says. “By doing so, Congress and the president have argued that they have created an acceptable constitutional balance between civil liberties and national security.”

THE FOUR LEVELS of judicial review begin with Combatant Status Review Tribunals, in which military officers decide whether detainees are properly held as enemy combatants and suspects are not permitted lawyers in the detention hearings. After facing a military tribunal, detainees may appeal to the Court of Military Commission Review, which includes Williams. Then detainees can appeal to the U.S. Court of Appeals for the District of Columbia Circuit, and finally they can seek U.S. Supreme Court review.

Williams said the 16-member Court of Military Review has not yet heard any appeals, but the tribunal system is set to proceed.

In the latest legal development, the U.S. Supreme Court has agreed to review a case, Boumediene v. Bush, which could determine whether it’s constitutional to prevent Guantanamo detainees from seeking habeas corpus relief in federal court.

In a section titled “Making Small Sacrifices for the Sake of National Security,” the article says, “The risk that our country faces today is very grave, yet many Americans turn a blind eye to this stark reality.”

While more than 620,000 people died during the four years of the Civil War, “at least that many lives would be lost in just one day if we were to undergo a nuclear, chemical or biological attack by a terrorist,” the article says. “In today’s War on Terror, the government must do what is necessary to ensure the nation’s security.”

The laws of war are different, the article says. “We play by different rules in the midst of a national emergency — rules that are not always chivalrous or entirely in accord with all of the constitutional provisions that apply in ordinary times. The point is that this is ‘no ordinary time.’ ”

The article argues that a military commission system is vital to preserving national security, saying, “The criminal justice system is not only ill-suited for such wartime trials, but its rules and procedures would likely foster rather than thwart further terrorist attacks.”

And, the articles says, detaining suspected terrorists at Guantanamo and trying them before military commissions is key to preventing future attacks.

The article concludes by saying, “We must accept temporary infringements on certain civil liberties to curb future acts of terrorism on our soil. Our nation’s survival depends on it.”

Fortunato said suspected terrorists should be treated as criminals. “Hunt them down as you have to, but do it the appropriate way with all due process,” he said. “The reason for due process protections is to avoid mistakes, meaning convicting innocent people or imposing disproportionate punishments. Even under the best of systems, and we have one of the best, some pretty tragic mistakes can be made.”

He cited the example of Jeffrey Scott Hornoff, the former Warwick police detective who spent six years in prison after being wrongfully convicted of murder.

“When you start scrapping due process and when you let the executive branch be judge, jury and executioner, you are going to have nothing but disasters going on in terms of human rights and civil liberties,” Fortunato said. “When we have mass arrests, interminable detentions and torture, we are throwing our own humanity out the window. Our standing in the world to exert moral and diplomatic pressure has really taken a beating.”

efitzpat@projo.com