By Michael Boos* and David N. Bossie**
When President Bush issued his November 13, 2001 order authorizing military trials for captured al Qaeda terrorists and their Taliban sponsors, critics including the American Civil Liberties Union and Harvard Law Professor Laurence H. Tribe were quick to denounce the directive as unconstitutional, unwise and an abuse of power.
“Today’s order is deeply disturbing and further evidence that the administration is totally unwilling to abide by the checks and balances that are so central to our democracy,” declared Laura Murphy, director of the ACLU’s Washington, DC office.
“The order exceeds the President’s constitutional authority,” wrote ACLU legislative counsel, Timothy H. Edgar, in a memorandum aimed at drumming up congressional opposition to the order.
“President Bush’s order is riddled with flaws,” complained Professor Tribe in The New Republic.
While conceding it might be constitutionally permissible to try certain al Qaeda terrorists before military tribunals, Tribe asserted the Bush order “is so sweeping that it could ensnare not just terrorist leaders captured overseas, but any ordinary, lawful resident alien who may once have ‘knowingly harbored’ a present or former member of al Qaeda or who might be ‘believe[d]’ to have ‘aided or abetted acts in preparation’ for international terrorism.”
Even some conservatives were sharply critical of the order. For example, New York Times columnist William Safire called it “Stalinist.”
Considering the drastic nature of the criticisms one might conclude there are serious constitutional flaws with the President’s order, or at least strong public policy reasons for opposing it. Such is not the case: As the following analysis shows, using military tribunals to try suspected al Qaeda terrorists and their Taliban sponsors is constitutionally sound, and consistent with American goals and interests in the War Against Terror.
II. FACTUAL BACKGROUND
A. Attacks on America & The Response Thereto
On September 11, 2001, the United States of America suffered the most destructive acts of international terrorism in the history of the world. More than three thousand individuals — most of them U.S. citizens — were killed when four commercial aircraft were hijacked and used as flying bombs by terrorists of Osama Bin Laden’s al-Qaeda terror network.
Three days later, the House and Senate unanimously passed legislation authorizing the President to:
Use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
President Bush signed the legislation into law on September 18.
Two days later, the President addressed a joint session of Congress. Calling the September 11 attacks “an act of war against our country,” Mr. Bush declared: “Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done.”
With respect to Afghanistan’s Taliban regime, the President made the following demands:
Deliver to United States authorities all the leaders of al Qaeda who hide in your land. Release all foreign nationals, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist, and every person in their support structure, to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating.
Emphasizing the point, he warned: “These demands are not open to negotiation or discussion. The Taliban must act, and act immediately. They will hand over the terrorists, or they will share in their fate.”
On October 7, America launched her first wave of military strikes.
“On my orders, the United States military has begun strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan,” said the President in a national address from the White House Treaty Room.
More than two weeks ago, I gave Taliban leaders a series of clear and specific demands: Close terrorist training camps; hand over leaders of the al Qaeda network; and return all foreign nationals, including American citizens, unjustly detained in your country. None of these demands were met. And now the Taliban will pay a price. By destroying camps and disrupting communications, we will make it more difficult for the terror network to train new recruits and coordinate their evil plans.
In the following weeks, several hundred suspected al Qaeda operatives, leaders of the Taliban regime, and even an American citizen – John Walker Lindh – were captured. Thousands of enemy combatants were killed. By mid-November the Taliban regime had fallen.
B. The November 13 Military Order
On November 13, 2001, President Bush issued a “military order” for the use of “military tribunals” to try suspected foreign terrorists. Among other things, the order provides that any “individual subject to this order” shall be: (1) detained by the U.S. military, in locations as designated by the Secretary of Defense, which may be outside or within the United States, and (2) tried before a military commission “for violations of the laws of war and other applicable laws.”
The main terms relating to the use of military tribunals are included in sections 2, 4 and 7 of the order.
Section 2 defines the individuals who are subject to detention and trial under the order. The definition includes any non-U.S. citizen, with respect to whom the President determines in writing that:
- there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaeda;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the Untied States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
- it is in the interest of the United States that such individual be subject to this order.
Section 4 sets forth the circumstances of trial. Subsection “a” provides that any individual who is tried before a military commission shall be tried “for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.” Subsection “b” delegates to the Secretary of Defense the authority to issue orders and promulgate rules to carry out the provisions of the preceding subsection.
To guide the Secretary of Defense in carrying out his duties under Section 4(b), the order sets forth the “minimum” standards and procedural safeguards for trials and other proceedings before the military commissions. Section 4(c) reads as follows:
Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for –
- military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;
- a full and fair trial, with the military commission sitting as the triers of both fact and law;
- admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officers renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;
- in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings;
- conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order;
- conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
- sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
- and submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.
Among other things, Section 7 of the order addresses jurisdictional issues, including access to the civilian courts. The relevant subsection reads as follows:
(b) With respect to any individual subject to this order –
- military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
- the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of a foreign nation, or (iii) any international tribunal.
On March 21, 2002, Secretary of Defense Donald Rumsfeld announced details of the rules the military commissions would follow. Among other things, the rules provide defendants with the following rights and safeguards:
- The right to call witnesses and obtain evidence (only the defendants’ military counsel will be given access to classified evidence).
- The right to be present in court.
- The right not to be tried twice for the same crime.
- Requirement that the defendant be found guilty “beyond a reasonable doubt” by two-thirds majority of the commission’s seven members.
- A unanimous vote by the seven commission members to impose the death penalty.
- An automatic right to appeal the commission’s verdict and sentence.
C. Individuals Held in Custody
Hundreds of al Qaeda and Taliban fighters and leaders are now in the U.S. Military’s custody. Many of them are held at Camp X-Ray, located at the U.S. military base in Guantanamo Bay, Cuba.
President Bush has determined that the Geneva Convention applies to Taliban soldiers in U.S. custody, but not al Qaeda fighters and other terrorists. “Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention,” explained presidential spokesman Ari Fleischer in announcing the president’s decision.
As of this report’s publication date, none of the military detainees has been charged or put on trial before a military tribunal. According to news reports, the military’s primary focus is to obtain intelligence from the captives, not to build cases for military trials.
In addition to the military detainees, several hundred foreign nationals were arrested in the weeks following the September 11 attacks. Many of those detainees are being held for alleged immigration violations.
The two most prominent foreign nationals in the custody of civilian authorities are Zacarias Moussaoui and Richard Reid. Moussaoui is a French citizen of Moroccan descent held in Federal custody for alleged immigration violations since August 2001. Reid is the British citizen subdued while allegedly trying to detonate explosives hidden in his shoes on an American Airlines flight from Paris to Miami.
Neither Moussaoui nor Reid will be tried before a military tribunal. Moussaoui will stand trial in federal court in Alexandria, Virginia, for multiple conspiracy charges in connection with the September 11 attacks. News reports indicate that the Bush Administration never gave serious consideration to trying him before a military tribunal. On January 16, Reid was indicted by a federal grand jury in Boston on nine terrorism-related charges, including attempted murder and attempted destruction of an aircraft.
III. ISSUE ANALYSIS
A. The Use of Military Tribunals to Try Suspected al Qaeda Terrorists and Their Taliban Sponsors Is Constitutionally Sound Policy
Historical custom and relevant legal authorities offer strong support for military tribunals of the type outlined in President Bush’s November 13, 2001 order. These tribunals are a constitutional means for bringing to justice foreign terrorists involved in the planning or carrying out of terrorist attacks on the United States and/or American citizens, property or facilities. Military commissions have been in use from the earliest days of the American Republic. The U.S. Supreme Court has consistently upheld their validity. Indeed, the Court’s record is especially deferential when military tribunals are used to try foreign nationals charged with violations of the laws of war.
1. Historical Foundation for Military Tribunals
Military commissions have been in use in this country since the signing of the Declaration of Independence and the outbreak of hostilities with England. A report issued by the American Bar Association’s Task Force on Terrorism and the Law notes: “George Washington ordered the trial of John Andre for spying by a ‘Board of Officers,’ which was, in all but title, a military commission. The term ‘military commission’ came into use during the Mexican War, and by the time of the Civil War was well embedded in usage.”
In a law review article published four years prior to the September 11 attacks, Spencer J. Crona and Neal A. Richardson describe the “extensive use” of military commissions during the Civil War. Examples include the trial of Confederate Army Captain Robert Kennedy, who “adopted a civilian disguise in a scheme to set fire to various buildings in [New York City].” Also discussed is the case of “Confederate saboteur, John Beall,” who “was adjudged a spy and a guerilla for seizing a merchant vessel in Lake Erie and for attempting, unsuccessfully, to derail a train in New York.”
According to Crona and Richardson:
The annals of military commission cases from the Civil War are replete with similar cases of Confederate terrorists sentenced capitally for seizure, arson or destruction of transportation, communication or other systems of infrastructure. Their acts parallel modern terrorism’s targeting of centers of commerce, airliners, commuter tunnels, various energy production and transmission facilities, and offices of the federal government.
After the Civil War, the next major use of military commissions occurred during and after World War II. In 1942, President Roosevelt issued a proclamation declaring citizens or subjects of any foreign nation at war with the United States would be tried before a military tribunal if while in the United States they committed or attempted to commit sabotage, espionage, hostile acts, or violations of the law of war. The proclamation was issued, in part, to authorize the trial of eight German citizens who used German U-Boats to surreptitiously enter the United States in July 1942 in order to destroy various war-related industries and facilities.
Following the surrender of Germany and Japan, military commissions were the mode of choice for trying foreign nationals accused of war crimes. The ABA Terrorism Task Force observes that more than 1600 persons were tried in Germany for war crimes by U.S. Army military commissions, and nearly 1000 persons were tried in the Far East by such commissions. By contrast, international war tribunals tried only about 200 individuals.
But war crimes are not the only issues over which military tribunals have exercised jurisdiction. The ABA Terrorism Task Force points out that military commissions were successfully employed to try civilians, including U.S. citizens, for ordinary criminal activity in the occupied territories following World War II.
Given the 200-plus year history of their use, there can be no doubt a strong historical foundation exists for the use of military tribunals to try suspected al Qaeda and Taliban detainees for “violations of the law of war and other applicable laws,” as set forth in President Bush’s order.
2. Constitutional & Legislative Underpinning of Military Commissions
Although military commissions have their roots in the common law, the basis for the modern usage of these tribunals is derived from Articles I and II of the Constitution. On the legislative side, Article I, Section 8, grants to Congress the following powers that are germane to the issue:
- To provide for the common defence and general Welfare of the United States (clause 1);
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations (clause 10);
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water (clause 11);
- To raise and support Armies (clause 12);
- To provide and maintain a Navy (clause 13); and
- To make Rules for the Government and Regulation of the land and naval Forces (Clause 14).
The President’s authority, on the other hand, is derived from Article II, Section 1, which confers on him the “executive Power of the United States of America,” and Article II, Section 2, which makes him “Commander in Chief of the Army and Navy.”
In Ex parte Quirin, the U.S. Supreme Court definitively upheld the use of military commissions as a constitutionally permissible means of bringing to justice individuals accused of violations of the laws of war. The Court stated:
From the very beginning of its history, this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations, as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war, has invoked that law. By his Order creating the present Commission, he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.
Ex parte Quirin involved the use of military commissions to try eight German citizens who used U-Boats to surreptitiously enter the United States in July 1942 in order to destroy various war-related industries and facilities. Four years later, in Application of Yamashita, the high court upheld the use of a military commission to try Japanese General Tomoyuki Yamashita for war crimes. Quoting extensively from Ex parte Quirin, the Court explained:
An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war. The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war.
The decisions in Ex parte Quirin and Application of Yamashita make clear that military commissions are constitutionally permissible when used pursuant to congressional authorization. Indeed, both the ACLU and Professor Tribe appear to concede this point. From a legal perspective, their main criticisms are that President Bush’s order exceeds his constitutional and statutory authority. For example, the ACLU asserts three points: (1) the order was “issued without Congressional authorization,” (2) it is too broad, in that it subjects too wide a class of individuals to the tribunal’s jurisdiction, and (3) it fails to “comply with basic international and constitutional due process standards.”
Such arguments are weak, if not disingenuous. While the Supreme Court has not definitively ruled on whether the President can order military trials without congressional authorization, such authorization is in place for the War Against Terror.
First, military commissions are authorized by the Uniform Code of Military Justice (“UCMJ”). In the preamble to his order, President Bush cites Articles 21 and 36 of the UCMJ, which are codified at 10 U.S.C. § 821 and 836. Article 21 is the primary statutory authority for the use of military commissions. It reads as follows:
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commission, provost court, or other military tribunals.
Article 21 parallels the language of Article 15 of the Articles of War, which were enacted during World War I and remained in effect until enactment of the UCMJ. In Application of Yamashita, the Supreme Court explained that Article 15 of the Articles of War was enacted to preserve the common law jurisdiction of military commissions following the enactment of statutory provisions conferring jurisdiction to try enemy combatants before courts-martial. In its decision, the Court stated that the purpose of Article 15 was to ensure the Articles were not construed to deprive military commissions of their traditional jurisdiction. This jurisdiction included “any use of the military commission contemplated by the common law of war.” Since Article 21 corresponds to the earlier provision of the Articles of War, leading commentators, including the ABA’s Task Force on Terrorism, conclude it “is designed to retain the common law jurisdiction of military commissions.”
Despite the UCMJ authorization for the use of military commission, critics of President Bush’s order assert a formal declaration of war is a prerequisite to the use of military commissions. Professor Tribe is typical. He writes:
[T]o justify the order, the president acts as though Congress has declared war, when all it has really done is authorize him to “use all necessary and appropriate force against those nations, organizations, or persons [involved in the September 11 attacks] to prevent any future [such] acts of international terrorism against the United States.” Lacking the ritualistic solemnity of a declaration of war, that hasty authorization does not justify the same domestic deprivations that a formal declaration of war might-particularly since our enemy in this war is amorphous, and the war may never reach a decisive, public end.
Professor Tribe is wrong. As an initial matter, historical precedents make clear a formal declaration of war is not a prerequisite to the use of military commissions. As pointed out above, such commissions were frequently used and upheld during the Civil War. Congress never formally declared war against the Confederacy during that conflict.
Moreover, the legislation authorizing the President to prosecute the War Against Terrorism is from a practical and legal standpoint the functional equivalent of a declaration of war. As noted by the ABA Task Force, “[t]he Supreme Court and Congress have recognized that a state of war may exist without a formal declaration.” For example, in Talbot v. Seeman, Chief Justice Marshall, writing for the Court, explained:
It is not denied, nor in the course of argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they apply to our situation, must be noticed.”
At a minimum, the legislation permitting President Bush to “use all necessary and appropriate force” in prosecuting the War Against Terror constitutes authorization for “partial hostilities.” This, in turn, allows for the application of the laws of war to those hostilities, including the use of military commissions to try enemy belligerents for violations of those laws.
Contentions that the order is too broad in that it subjects too wide a class of individuals to the tribunal’s jurisdiction appear to be more of an academic point than a practical criticism. In its “Memorandum to Members of Congress” the ACLU boldly asserts as follows:
The Military Order applies to some 20 million non-citizens in the United States, most of whom are legal residents, and any other non-citizens anywhere else in the world, and could permit indefinite detention without trial in violation of a key detention compromise made in the USA Patriot Act. It could, at the stroke of a pen, be expanded to include United States citizens.
The hyperbole aside, the order has not and will not be applied in any such manner. By its very terms the order applies only to those non-U.S. citizens who: (1) have been members of al Qaeda, (2) have participated in acts of terrorism, or (3) have knowingly harbored members of al Qaeda or others who have participated in acts of terrorism.
It is absurd in the extreme for the ACLU to assert that the order might be applied to round up and try millions of non-U.S. citizens, or amended to allow for similar trials of U.S. citizens. The number of individuals likely to stand trial before a military commission is quite limited. While several hundred al Qaeda and Taliban detainees are held by the U.S. military, news reports suggest few will stand trial before the tribunals. The most likely candidates, provided one or more is taken alive, appear to be Osama bin Laden, Taliban leader Mullah Mohammed Omar and their top lieutenants.
Also without merit is the claim that military tribunals of the type outlined in President Bush’s order do not comport with international and U.S. due process standards. From an international law standpoint, the procedural safeguards outlined in the order meet or exceed the protections accorded the accused in international tribunals, such as the proposed United Nations International Criminal Court. Among other things, both forums provide that the presiding judges/commissioners shall sit as triers of fact and law; they guarantee the accused the right to be represented by counsel; and include similar provisions for appellate review of any conviction or sentence. One major difference: The President’s order requires a two-thirds majority vote to convict or sentence, while the ICC Treaty requires only a majority vote of the presiding judges.
It is equally clear the order comports with the due process protections of the U.S. Constitution. As a general rule, foreign nationals who are not physically present in the United States have few, if any, rights under the U.S. Constitution. In particular, enemy belligerents, such as the al Qaeda and Taliban prisoners held at Camp X-Ray in Guantanamo Bay, Cuba, possess virtually no rights under the Fifth Amendment and other constitutional provisions that are applicable to criminal trials that are held before the civilian courts.
The Supreme Court in Johnson v. Eisentrager flatly rejected due process arguments such as those now advanced by President Bush’s critics. In that case, the Court ridiculed the claims of German nationals who were captured and tried in China by an American military commission for aiding Japan after Germany had surrendered but prior to Japan’s surrender:
When we analyze the claim prisoners are asserting it amounts to a right not to be tried at all for an offense against our armed forces. If the Fifth Amendment protects them from military trial, the Sixth Amendment as clearly prohibits their trial by civil courts. The latter requires in all criminal prosecutions that “the accused” be tried “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” And if the Fifth be held to embrace these prisoners because it uses the inclusive term “no person,” the Sixth must, for it applies to all “accused.” No suggestion is advanced by prisoners, of any constitutional method by which any violations of the laws of war endangering the United States forces could be reached or punished, if it were not by a Military Commission in the theater where the offense was committed.
Also, in Ex parte Quirin, which is discussed above, the Supreme Court held that certain provisions of the Bill of Rights, including the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to trial by jury, do not apply to trials for violations of the laws of war even when the violations occur on U.S. soil and the alleged offender is a U.S. citizen.
Although decided over fifty and sixty years ago, the decisions in Eisentrager and Quirin remain the law of the land. There is little reason to believe the current Supreme Court will overrule those decisions. Indeed, that appears to be precisely the point Professor Tribe tries to make when he complains the Court would likely “rubber stamp” the President’s order. The assertions of the President’s critics notwithstanding, the prosecution of any al Qaeda or Taliban prisoner under the President’s military order is quite likely to withstand any due process or other constitutional challenge.
B. Military Tribunals Advance American Goals and Interests in the War Against Terror
Besides their constitutional and legal arguments, opponents of President Bush’s military order contend that military tribunals are unnecessary and a bad idea from a public policy perspective. A frequent theme is that other forums such as America’s civilian courts or an international criminal court are a more appropriate venue for these trials. Opponents also argue that the use of military tribunals sets a bad precedent because other nations might cite their use to legitimize the use of military tribunals to oppress political opposition or try Americans on phony charges.
These contentions are mistaken. Military commissions are the appropriate venue in which to try al Qaeda and Taliban leaders who are in the custody of the U.S. military. Their use will ensure swift and fair justice, while sending a strong message to terrorists that America is serious in its war objectives.
1. Alternative Forums Are Not an Appropriate Venue ACLU officials insist foreign terrorists be tried in America’s civilian courts with the same court procedures and privileges enjoyed by American citizens. In its Memorandum to Members of Congress, the group claims “United States courts have proven they can successfully try terrorism cases Terrorists have been tried, convicted, sentenced to death, and executed in the regular criminal justice system.”
In truth, the only terrorist recently sentenced to death by the regular criminal justice system was an American citizen, Oklahoma City bomber Timothy McVeigh.
The trials of the 1993 World Trade Center bombers vividly demonstrate that the Federal court system is ill equipped to handle a significant volume of terrorist cases. The trial of the first set of defendants encompassed almost five months of testimony from 207 witnesses, and included over 1,000 exhibits. In the end, the four defendants were sentenced to life in prison. It took until June 1998 to complete the subsequent trial of Ramzi Yousef, who was convicted of masterminding the bombing. He too escaped the death penalty.
Another problem with the civilian courts centers on security issues. In its report, the ABA Task Force on Terrorism and the Law cites dangers to “the physical security of the courthouse and the participants (including jurors) in the trial” as an important security concern. The Task Force also raises concerns over the ability of the civilian courts to “to safeguard classified information, including intelligence sources and methods whose compromise could facilitate future terrorist acts.” While acknowledging that measures are in place to protect classified information from exposure to the general public, the Task Force says such measures “may not suffice to protect the information from the defendants and, through them, others who may use such information to the harm of the U.S. and its citizens.”
International tribunals are also unacceptable. The criminal trial of the Libyan terrorists responsible for blowing up Pan Am Flight 103 and killing its 270 mostly American occupants is a prime example of the ineffectiveness of international tribunals. Before a sentence was finally handed down, the Pan Am 103 investigation and international court trial in the Netherlands required 13 years, the involvement of many countries’ intelligence and law enforcement agencies, and the expense of hundreds of millions of dollars. After all this time and effort, only two mid-level Libyan intelligence officers were put on trial. Only one of the two was convicted, and he received a prison sentence. The other officer was acquitted and released.
Another problem is that the death penalty is generally unavailable in international forums. The Libyans who were tried for the Pan Am bombing did not face the death penalty, nor will defendants who are tried before the proposed UN International Criminal Court. The maximum sentence under the proposed ICC Treaty is life in prison.
Military tribunals offer a viable solution to the problems and concerns associated with alternative forums such as American civilian courts or international tribunals. History demonstrates that trials will be swift and fair. It took just three months from his surrender to try, convict and sentence Japanese General Tomoyuki Yamashita to death for war crimes in the Philippine Islands during World War II. He was executed on February 23, 1946, nineteen days after the U.S. Supreme Court decided and rejected his appeal. In addition, military commissions alleviate security concerns such as those raised by the ABA Task Force. The locations of the trials, such as Camp X-Ray, are isolated enough to ensure the safety of the trial’s participants. Also, while the trials will generally be open to the public, procedural rules allow the proceedings to be closed in order to protect classified information and intelligence sources.
2. Military Tribunals Advance America’s Goals and Interests In the War Against Terror
Opponents of the President’s order also claim the use of military tribunals amounts to bad policy. The principal argument here is that oppressive nations will cite the policy to legitimize their misuse of military trials to stifle dissent or try Americans on trumped-up charges. Human Rights Watch, for example, says the president’s order “permits actions that the United States has long condemned when committed by other countries.” Kenneth Roth, the group’s executive director, says: “The next time the United States criticizes a foreign dictator for trying a dissident – or even an American citizen – before a military court, this is going to be thrown back in America’s face.”
This line of criticism overlooks several crucial points. First, the use of military tribunals in America is limited to exceptional circumstances. America is at war and the tribunals will be employed to try a limited class of individuals for war-related crimes. Neither American nor foreign “dissidents” will face trial before military commissions. Second, rogue nations that misuse military tribunals to oppress dissent will continue to do so irrespective of manner in which the United States tries terrorists. And third, in stark contrast to the summary proceedings routinely employed by police states, the trial procedures outlined in President Bush’s order and the regulations promulgated pursuant to the order ensure that any trials will be fair and just.
The criticism also overlooks important public policy goals that are advanced by the use of military tribunals to try terrorists. Most significantly, the order sends a clear signal that America will not allow her enemies to use our freedoms and liberties as a weapon against us. Military tribunals will limit al Qaeda ability to use the trials as a propaganda forum to advance its extremist agenda in sympathetic news media. The use of these tribunals will also ensure that classified information, and intelligence sources and methods are not compromised.
Military tribunals of the type outlined in President Bush’s November 13, 2001 order are constitutionally and legally sound. These tribunals have been in use from the earliest days of the American Republic, and the Supreme Court has consistently upheld their use. Contrary to the contentions of the President’s critics, the President’s constitutional authority, coupled with the Uniform Code of Military Justice and congressional authorization to “[u]se all necessary and appropriate force” to combat those responsible for the September 11, 2001 attacks, as well as “to prevent any future acts of international terrorism against the United States” is ample legislative authority for the use of military tribunals to try al Qaeda and Taliban detainees for war-related crimes.
There is also no merit to arguments that the particulars of the president’s order violates due process or other rights guaranteed to criminal defendants by the U.S. Constitution. The Supreme Court has consistently rejected similar arguments in the past, holding that the Fifth Amendment and other criminal trial-related rights are inapplicable to war crime trials conducted by the U.S. military outside the territory of the United States.
The trial procedures outlined in President Bush’s order are also consistent with international standards and norms. Indeed, the requirement for a two-thirds majority vote to convict exceeds the majority vote rule under the proposed UN International Criminal Court treaty.
From a public policy perspective venues such as America’s civilian courts or an international tribunal are not viable alternatives to military commissions. The trials of the 1993 World Trade Center bombers demonstrate that the Federal court system is ill equipped to handle such cases. The use of civilian courts also raises serious security concerns, and the trial of the accused Pan Am Flight 103 terrorists demonstrates the ineffectiveness of international forums.
Military tribunals, on the other hand, will be effective in meting out justice to those who have attacked the United States through terrorism and have engaged us in war. Their use will send a clear message that America is dead serious about winning the War Against Terror.