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Taking sides: clashing views on controversial political issues/selected, edited, and withintroductions by George McKenna and Stanley Feingold.—13th ed.

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ISSUE 20

Should Terrorist Suspects Be Triedby Military Tribunals?

YES: Pierre-Richard Prosper, from Testimony Before the Com-mittee on the Judiciary, U.S. Senate (December 4, 2001)

NO: Aryeh Neier, from “The Military Tribunals on Trial,” The NewYork Review of Books (February 14, 2002)

ISSUE SUMMARY

YES: Ambassador Pierre-Richard Prosper defends military tribunalsas consistent with established law and as necessary to protect Ameri-can jurors and court personnel from an international terror network.

NO: Aryeh Neier, of the American Civil Liberties Union, contendsthat the proposed military tribunals would deprive defendants ofessential rights guaranteed under both American and internationallaw.

On September 20, 2001, nine days after the terrorist attacks on the WorldTrade Center and the Pentagon, President George W. Bush told a joint sessionof Congress that “an act of war” had been committed against America by “en-emies of freedom.” To defeat these enemies, Bush said, “we will direct everyresource at our command.” He mentioned several resources, including “everyinstrument of law enforcement,” and in November he issued an executive or-der creating one such instrument: military tribunals, or “commissions,” as theadministration later called them.

Military tribunals derive their authority not from the judicial branch ofthe government (Article 3 in the Constitution) but from the president’s author-ity as commander in chief (Article 2). As such, they are not bound by all of theprocedures followed in civilian courts. These are special courts, convened toadjudicate extraordinary cases, usually (though not always) involving foreign-ers during wartime. Such tribunals have a long history in the United States.Americans used them during the Revolutionary War to try suspected spiesand saboteurs. President Lincoln resorted to them during the Civil War. AndPresident Franklin D. Roosevelt used military tribunals to convict and executeGerman saboteurs caught in the United States during World War II.

382


According to Defense Department guidelines, the present tribunals wouldapply only to foreign nationals, not American citizens. They would have juriesof three to seven military officers. Other provisions in the guidelines includethe following:

• A two-thirds vote will be required for conviction and sentencing, notthe unanimous vote required in civilian proceedings. (An exception,requiring unanimity in death penalty cases, was later added.)

• In some cases the panels will be able to hear secondhand and hearsayevidence, which is banned in civilian courts.

• Defendants will be provided with military lawyers, though they canhire civilian attorneys at their own expense.

• Defendants will not be allowed to appeal decisions in federal courts,though they will be able to petition a panel of review, which may in-clude civilians as well as military officers. Final review will be in thehands of the president.

Why try terrorist suspects before military tribunals? Why not use civiliancourts, as the United States has already done successfully in the case of the Okla-homa City bombing and the 1993 bombing of the World Trade Center? TimothyMcVeigh, who was tried and convicted in the Oklahoma City case, was involvedwith one or two others, but those who carried out the attacks of September 11were part of an international terrorist network operating in dozens of countriesand at war with the United States. Arguably, those involved in the earlier attackon the World Trade Center were also enlisted in that war, but U.S. authorities in1993 were not as alert to the nature of the threat as they are today. Moreover, thejudge in that case is still under 24-hour protection by federal marshals. One ofthe arguments for military tribunals, then, is that civilian judges and jurors willnot be under threats of reprisals by terrorist organizations. The risk of reprisalsgrows the longer the trial and appeals process continue, and in civilian casesthe appeal process alone can stretch out over many years. So another reasongiven for military tribunals is that they will permit a more expeditious hearing,with rules of evidence more flexible than is possible in ordinary legal proceed-ings. Still another argument is that military commissions can allow the use ofclassified information without endangering sources and methods.

For opponents of military tribunals, the very qualities of these tribunalsthat the defenders praise—secrecy, speed, and relaxed rules of evidence—are wor-risome. In their view, dispensing with unanimous jury verdicts, using hearsayevidence, and prohibiting appeals to civilian courts are serious departures fromthe very standard of justice that America seeks to promote in the world. AsHarvard University law professor Ann Marie Slaughter put it, to forsake thatstandard “is to betray the cause we’re fighting for.”

In the following selections, Pierre-Richard Prosper defends military tri-bunals as consistent with established law and as necessary to protect Americanjurors and court personnel from an international terror network, while AryehNeier contends that the proposed military tribunals would deprive defendantsof essential rights guaranteed under both American and international law.

383


Pierre-Richard Prosper YES

Testimony of Pierre-Richard Prosper

Mr. Chairman, members of the committee, I come before you as theAmbassador-at-Large for War Crimes Issues and also as a former prosecutor.Prior to my appointment to this post, I spent ten years in the trenches asa line prosecutor. As a deputy district attorney in Los Angeles, I prosecutedhundreds of cases and tried dozens of murder cases and multiple murder casesas a member of the Hard Core Gang Division. As an Assistant United StatesAttorney, I prosecuted and investigated sophisticated international drug car-tels trafficking tons of cocaine into the streets of Los Angeles. And as a leadprosecutor for the United Nations International Criminal Tribunal for Rwanda,I successfully prosecuted, in a 14-month trial, the first-ever case of genocidebefore an international tribunal under the 1948 Genocide Convention.

With this experience, I recognize, understand, and truly believe that thereare different approaches that can be used to achieve justice. I recognize thatdifferent procedures are allowed and that different procedures are appropriate.No one approach is exclusive and the approaches need not be identical for jus-tice to be administered fairly. But in all approaches what is important is thatthe procedures ensure fundamental fairness. And that is what the President’s[November 13 Military Order] calls for. After the tragic events of September11th, we as a nation were forced to reexamine our traditional notions of se-curity, our conceptions of our attackers, and our approaches to bringing theperpetrators to justice. The conventional view of terrorism as isolated acts ofegregious violence did not fit. The atrocities committed by the al Qaida or-ganization at the World Trade Center in New York, at the headquarters of ourDepartment of Defense, and in Pennsylvania were of the kind that defied theimagination and shocked the conscience.

These atrocities are just as premeditated, just as systematic, just as evil asthe violations of international humanitarian law that I have seen around theworld. As the President’s order recognizes, we must call these attacks by theirrightful name: war crimes.

President Bush recognized that the threat we currently face is as grave asany we have confronted. While combating these war crimes committed againstU.S. citizens, it is important that the President be able to act in the interest ofthis country to protect the security of our citizens and ensure that justice is

From U.S. Senate. Committee on the Judiciary. Department of Justice Oversight: Preserving Our Free-doms While Defending Against Terrorism. Hearing, December 4, 2001. Washington, DC: GovernmentPrinting Office, 2001.

384


YES / Pierre-Richard Prosper 385

achieved. He has repeatedly promised to use all the military, diplomatic, eco-nomic and legal options available to ensure the safety of the American peopleand our democratic way of life. The President should have the full range of op-tions available for addressing these wrongs. The Military Order adds additionalarrows to the President’s quiver.

Should we be in a position to prosecute Bin Laden, his top henchmen,and other members of al Qaida, this option should be available to protect ourcivilian justice system against this organization of terror. We should all askourselves whether we want to bring into the domestic system dozens of personswho have proved they are willing to murder thousands of Americans at a timeand die in the process. We all must think about the safety of the jurors, whomay have to be sequestered from their families for up to a year or more while acomplex trial unfolds. We all ought to remember the employees in the civiliancourts, such as the bailiff, court clerk, and court reporter and ask ourselveswhether this was the type of service they signed up for—to be potential victimsof terror while justice was pursued. And we all must think also about the injuredcity of New York and the security implications that would be associated with atrial of the al Qaida organization.

With this security threat in mind, we should consider the option of mili-tary commissions from two perspectives. First, the President’s Military Order isconsistent with the precepts of international law. And second, military commis-sions are the customary legal option for bringing to justice the perpetrators ofwar crimes during times of war. The Military Order’s conclusion that we are ina state of armed conflict deserves comment. Because military commissions areempowered to try violations of the law of war, their jurisdiction is dependentupon the existence of an armed conflict, which we have.

It is clear that this series of attacks against the United States is more thanisolated and sporadic acts of violence, or other acts of a similar nature. Rather,a foreign, private terrorist network, with the essential harboring and other sup-port of the Taliban-led Afghanistan, has issued a declaration of war againstthe United States. It has organized, campaigned, trained, and over the courseof years repeatedly carried out cowardly, indiscriminate attacks, including thelargest attack in history against the territory of the United States in terms ofnumber of persons killed and property damage.

Tracing the criminal history of the organization further confirms the stateof armed conflict. A decade’s worth of hostile statements by Bin Laden overand over and over again state that he is at war against the United States. He hasinstructed his followers to kill each and every American civilian. We shouldalso consider the intensity of the hostilities and the systematic nature of theassaults. Consider the fact that al Qaida is accused of bombing the World TradeCenter in 1993 and attacking U.S. military service personnel serving in Somaliain the same year. Consider that Bin Laden and al Qaida are accused of attackingand bombing our embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.

Remember that al Qaida is accused of perpetrating last year’s bombingof the U.S.S. Cole. And of course, added to this history are the horrifying andunprovoked air assaults on the twin towers in New York, the Pentagon, and theairplane tragedy in Pennsylvania.


386 ISSUE 20 / Should Terrorist Suspects Be Tried by Tribunals?

It is clear that the conduct of al Qaida cannot be considered ordinary do-mestic crimes, and the perpetrators are not common criminals. Indeed, oneneeds to look no further than the international reaction to understand thatSeptember 11 was perceived as an armed attack on the United States. NATO’sNorth Atlantic Council declared that the attack was directed from abroad and“regarded as an action covered by Article V of the Washington Treaty, whichstates that an armed attack against one or more of the Allies in Europe or NorthAmerica shall be considered an attack against them all.” The Organization ofAmerican States, Australia and New Zealand activated parallel provisions intheir mutual defense treaties. UN Security Council Resolutions 1368 and 1373recognized our inherent right to exercise self-defense. And UN Security Coun-cil Resolution 1377 added: “acts of international terrorism constitute one ofthe most serious threats to international peace and security in the twenty-firstcentury.”

We can also look at our domestic response, including the joint resolutionpassed by this Congress authorizing “the use of all necessary and appropri-ate force” in order to prevent any future acts of international terrorism. Mr.Chairman, members of the committee, we are at war, an unconventional warconducted by unconventional means by an unprecedented aggressor. Underlong established legal principles, the right to conduct armed conflict, lawfulbelligerency, is reserved only to states and recognized armed forces or groupsunder responsible command. Private persons lacking the basic indicia of organi-zation and the ability or willingness to conduct operations in accordance withthe laws of armed conflict have no legal right to wage warfare against a state. Inwaging war the participants become unlawful combatants.

Because the members of al Qaida do not meet the criteria to be law-ful combatants under the law of war, they have no right to engage in armedconflict and are unlawful combatants. And because their intentional targetingand killing of civilians in time of international armed conflict amount to warcrimes, military commissions are available for adjudicating their specific vio-lations of the laws of war. As the U.S. Supreme Court unanimously stated inEx Parte Quirin: “by universal agreement and practice, the law of war draws adistinction between the armed forces and the peaceful populations of belliger-ent nations, and also between those who are lawful and unlawful combatants.Lawful combatants are subject to capture and detention as prisoners of war byopposing military forces. Unlawful combatants are likewise subject to captureand detention, but, in addition, they are subject to trial and punishment bymilitary tribunals for acts which render their belligerency unlawful.”

In this campaign against terrorism, it is important that the President havethe full range of available forums for seeking criminal accountability againstpersons for their individual and command responsibility for violations of thelaw of war. The military commission provides a traditionally available mecha-nism to address these unconventional crimes.

Military commissions have been utilized and legally accepted through-out our history to prosecute persons who violate the laws of war. They wereused by General Winfield Scott during his operations in Mexico, in the CivilWar by President Lincoln, and in 1942 by President Roosevelt. They are an


YES / Pierre-Richard Prosper 387

internationally accepted practice with deep historical roots. The internationalcommunity has utilized military commissions and tribunals to achieve justice,most notably at Nuremberg and in the Far East. The tribunals which tried mostof the leading perpetrators of Nazi and Japanese war crimes were military tri-bunals. These tribunals were followed by thousands of Allied prosecutions ofthe lower-level perpetrators under the Control Council Law No. 10.

By the end of 1958, the Western Allies had used military tribunals to sen-tence 5,025 Germans for war crimes. In the Far East, 4,200 Japanese were con-victed before military tribunals convened by U.S., Australian, British, Chinese,Dutch, and French forces for their atrocities committed during the war.

Today, the commissions as envisioned by the President in the Military Or-der, while different from those found in our Article III courts, are in conformitywith these historical precedents and the world’s current efforts to prosecute warcrimes through the United Nations in the International Criminal Tribunals forthe Former Yugoslavia and Rwanda. To understand this it may be helpful forme to articulate the commonalities. Like it’s predecessors, in the Nurembergand Far East International Military Tribunals, the Allied Control Council LawNo. 10 proceedings, and the International Criminal Tribunals for the former Yu-goslavia and Rwanda, the judges sit as both triers of law and of fact. In addition,decisions such as judicial orders, judgments, and sentences are reached by a ma-jority vote and not unanimity. Evidence of a probative value is admitted. And inthe United Nations International Criminal Tribunals for the former Yugoslaviaand Rwanda, portions of the proceedings have been and are authorized to beclosed, just as is contemplated by the President’s military order. Mr. Chairman,members of the committee, since September 11th I have been asked about ourcriticisms of foreign military tribunals. In these cases, we criticized the processand not the forum.

Since September 11th I have also been asked why we do not create aninternational tribunal? In our view, the international practice should be to sup-port sovereign states seeking justice domestically when it is feasible and wouldbe credible, as we are trying to do in Sierra Leone and Cambodia. Internationaltribunals are not and should not be the courts of first redress, but of last re-sort. When domestic justice is not possible for egregious war crimes due toa failed state or a dysfunctional judicial system, the international communitymay, through the Security Council or by consent, step in on an ad hoc basis asin Rwanda and Yugoslavia. That is not the case in the United States.

Our goal should be and this administration’s policy is to encourage statesto pursue credible justice rather than abdicating the responsibility. Becausejustice and the administration of justice are a cornerstone of any democracy,pursuing accountability for war crimes while respecting the rule of law by asovereign state must be encouraged at all times. The President understands oursovereign responsibility and has taken action to fulfill his duty to the Americanpeople. In creating an additional option, the nation is now prepared and willhave an additional forum to address these wrongs when needed.


Aryeh Neier NO

The Military Tribunals on Trial

Among the many defects of President Bush’s order for military commissionsto try suspected al-Qaeda members or supporters is that it lumps together atleast four categories of persons who have distinct sets of rights under eitherdomestic or international law. The four categories of persons subject to trialby military commissions under the President’s order are: (1) prisoners of warcaptured in Afghanistan; (2) unlawful combatants arrested in Afghanistan orelsewhere in the world outside the United States; (3) illegal aliens in the UnitedStates or aliens who came to the United States legally—as with student or visitorvisas—but with the alleged purpose of engaging in terrorism; and (4) legal alienswith permanent resident status who are accused of engaging in terrorist acts.

As written, the order violates, in different ways, the rights of all four cat-egories; it recalls [the French prime minister Georges] Clemenceau’s famouscomment about the Dreyfus case that “military justice is to justice as mili-tary music is to music.” Fortunately, public debate over the order has been farmore extensive than it has been over the many other violations of rights bythe Bush administration since September 11. In consequence, the President’sorder is being modified by Defense Department regulations and Justice De-partment practice. These developments demonstrate that even at a time whena commencement speaker at a university is booed off the stage for giving atalk about constitutional rights, and when only one member of the US Senatevoted against sweeping federal legislation abridging civil liberties, it is possiblefor rights advocates—along with some of the officials within the federal bureau-cracy itself—to take on an overwhelmingly popular president and force him andhis administration to back away from draconian measures.

The first two categories of people subject to trial—prisoners of war and un-lawful combatants arrested outside the United States—derive their rights frominternational law. The essential difference between the two is that prisonersof war engage in open, announced combat in accordance with the customs ofwar. Unlawful combatants, on the other hand, attempt to conceal their activ-ities. They include those who disguise themselves as civilians as well as spies,saboteurs, and terrorists. Under international law, in particular the Geneva Con-ventions, both categories may be tried before military tribunals. It is true that

From Aryeh Neier, “The Military Tribunals on Trial,” The New York Review of Books (February 14,2002). Copyright 2002 by NYREV, Inc. Reprinted by permission of The New York Review of Books.Notes omitted.

388


NO / Aryeh Neier 389

there is no mechanism for international enforcement of the Geneva Conven-tions other than public pressure. But the conventions set forth clear legal stan-dards that the US has agreed to observe, and failure to do so will be seen as aviolation of fundamental international law.

The Third Geneva Convention of August 12, 1949, ratified by the UnitedStates Senate on July 6, 1955, defines prisoners of war as:

(1) Members of the armed forces of a Party to the conflict, as well asmembers of militias or volunteer corps forming part of such armedforces.

(2) Members of other militias and members of other volunteer corps,including those of organized resistance movements, belonging to aParty to the conflict and operating in or outside their own territory,even if this territory is occupied, provided that such militias orvolunteer corps, including such organized resistance movements,fulfill the following conditions:

(a) that of being commanded by a person responsible for his subordi-nates;

(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws

and customs of war.

— (Article 4)

i

In Afghanistan, neither Taliban fighters nor members of the Northern Alliancehave worn uniforms. Therefore the requirement of a “fixed distinctive sign”can’t be met literally; but since most of these combatants were not attemptingto disguise themselves as civilians pretending to be other than what they were,the lack of uniforms should not prevent those captured in combat from beingrecognized as prisoners of war. Whether they are Afghans, Pakistanis, Arabs, orof some other nationality is immaterial. It is the kind of combat in which theywere engaged that determines their rights. . . .

i

Though the terms of President Bush’s order could apply to prisoners of war, itappears that its main purpose is to provide a means of bringing to justice unlaw-ful combatants such as those who conspired to blow up the US embassies in EastAfrica and to hijack planes and use them as weapons on September 11, 2001.The order gives the President exclusive authority to determine that a person “isor was a member” of al-Qaeda; has “engaged in, aided or abetted, or conspiredto commit, acts of international terrorism, or acts in preparation therefor”; orhas “knowingly harbored” such persons. This order is dangerously sweeping.For example, an Irish-American immigrant who participates in a fund-raising



event for widows and orphans of those killed in the struggle in Northern Irelandcould be hauled before a military tribunal for aiding or abetting internationalterrorism.

No standards for making such determinations are provided in the order,which explicitly prohibits recourse to any court in order to question the Presi-dent’s unilateral decisions. Here again, the order runs afoul of the Third GenevaConvention. Though the convention’s purpose is only to protect prisoners ofwar, it makes the question of whether someone in a doubtful case is entitledto such status subject to determination “by a competent tribunal.” Until thathas happened, “such persons shall enjoy the protection of the present Conven-tion” (Article 5). That is, a suspected al-Qaeda terrorist captured in combat inAfghanistan must be treated as a prisoner of war until a court says he is notentitled to such status.

Once a court decides that a prisoner is an unlawful combatant, his rightsunder international law diminish substantially but they do not entirely dis-appear. The question of those rights is addressed in the 1977 First AdditionalProtocol to the Geneva Conventions. Though not ratified by the United States,some provisions of the First Additional Protocol are so widely accepted thatthey are recognized as expressing norms of customary international law which,for the past century, the United States has accepted as binding. Among the pro-visions with the apparent degree of support that qualifies them as customaryinternational law is Article 75, which deals with the due process rights of “per-sons who are in the power of a Party to the conflict and who do not benefit frommore favorable treatment under the Conventions.” The protocol says that, at aminimum, the rights of such persons include trial “by an impartial and regu-larly constituted court”; “all necessary rights and means of defense”; the rightto be “presumed innocent until proved guilty according to law”; the right notto “be compelled to testify against himself”; “the right to examine, or haveexamined, the witnesses against him and to obtain the attendance and exami-nation of witnesses on his behalf”; and the right to “be advised on convictionof his judicial and other remedies.” . . .

i

A main source of the controversy over President Bush’s order is its applica-tion to aliens in the United States. Hostility to aliens during tense periodshas a long history in the US. Attorney General A. Mitchell Palmer roundedup thousands in response to terrorist attacks after World War I (including thebombing of Palmer’s house), and hundreds of radicals were deported—amongthem, the anarchist leader Emma Goldman—to Soviet Russia. By drawing a linebetween citizens and noncitizens in establishing the jurisdiction of the militarytribunals, President Bush associates himself with this tradition.

He also pays lip service to the decision by the Supreme Court in the land-mark case of Ex parte Milligan, which challenged President Abraham Lincoln’ssuspension of habeas corpus during a Civil War trial of a civilian before a mili-tary commission. The court ruled that trials before military commissions “can



never be applied to citizens . . . where the courts are open and their process un-obstructed” (emphasis added). In making such an argument in order to limit therights of noncitizens, President Bush reverts to the nativist politics that were invogue in Congress during the period of Newt Gingrich’s “Contract with Amer-ica.” He rejects the traditions of American jurisprudence and practice that treatcitizens and legal permanent residents of the United States alike except in mat-ters that directly relate to citizenship such as the rights to vote and to run foroffice. As Justice Harry Blackmun wrote for the Supreme Court in a case in-volving the denial of welfare benefits to noncitizens, “classifications based onalienage, like those based on nationality or race, are inherently suspect.”

That does not mean such classifications are never permissible. It doesmean they must be justified by a compelling state interest. A case might bemade that such an interest justifies treating differently those who can be shown,through fair procedures, to have come to the United States for the expresspurpose of engaging in terrorism and who cross our borders illegally, or fraud-ulently obtain a visa, in order to carry out terrorist acts. But to deny 9.3 millionpermanent residents the right to trial in civilian courts is surely excessive. Suchpersons might engage in terrorism, but—as with Timothy McVeigh and TerryNichols—the same is true of American citizens. What compelling state interestjustifies treating them differently? . . .

i

Though it appears that a number of the issues respecting the lawfulness of Pres-ident Bush’s order for military commissions are being addressed, there remainsthe question of whether the commissions are a good idea from the standpointof international public policy. In at least three respects, plainly they are not.First, there is the question of whether other governments will cooperate withthe United States in bringing to trial alleged members of the terrorist network.According to Baltazar Garzon, the Spanish investigative judge who has chargedeight men with involvement in the September 11 attacks: “No country in Eu-rope could extradite detainees to the United States if there were any chancethey would be put before these military tribunals.” He cited the European Con-vention on Human Rights, a treaty that is binding on the forty-three memberstates of the Council of Europe.

It is unclear whether the modifications that are being made to PresidentBush’s order by Defense Department regulations will cause Spain and other for-eign governments to allow such extraditions. Probably they will not, since it isthe issue of military tribunals per se, as well as their ability to impose the deathpenalty, that is likely to be objectionable to European countries. If the US can-not secure custody over such persons, the damage to American interests shouldbe clear. Our government will be denied the opportunity to bring criminal pro-ceedings against people who may be part of the conspiracy to commit terroristattacks. Even if they are guilty, they could go free because prosecutors in Spain,or elsewhere, may not be able to prove their complicity in crimes committedin the United States. In turn, American prosecutors may be deprived of cruciallinks in a chain of evidence that could implicate others. And the tribunals will



further tarnish the reputation of the United States in Europe, where the UnitedStates is increasingly regarded as violating human rights because of its use ofthe death penalty, as well as the shoddy legal representation provided defen-dants in capital cases in states such as Texas and the high proportion of ourpopulation behind bars—approximately seven times as great as in the fifteencountries of the European Union.

Another defect of military tribunals is that their judgments are unlikely tohave much legitimacy in the countries that are the probable breeding groundsfor international terrorism. We can hardly expect that those who cheered theattacks of September 11 and who lionized Osama bin Laden are going to payheed to the judgment of any court. But to the extent possible, it is in Amer-ica’s interest that verdicts against those tried for terrorism should be credibleto shopkeepers in Cairo or Jakarta or civil servants in Marrakech, Islamabad,or Dacca. Their opinion should matter to us because Americans are safer in aworld in which such people are willing to oppose terrorism. If we want to per-suade them that the verdicts are just, military tribunals at Guantanamo are notour best choice.

Military tribunals, moreover, will further erode the effectiveness of theUnited States as a defender of human rights internationally. Quite aside fromthe proposed tribunals, the reputation of the US as an advocate of human rightsin many parts of the world has in other ways been impaired by some of itspost–September 11 policies. Though our intervention in Afghanistan has clearlyimproved the human rights situation in that country by ending the Taliban’srepressive rule, our current alliances with such regimes as Russia, China, Uzbek-istan, and Pakistan have sharply limited our capacity to speak out about theirabuses. This is especially true when the victims can be linked, however tenu-ously, to al-Qaeda, whether the Chechens in Russia, the Uighurs in China, andthe thousands of Islamists in President Islam Karimov’s viciously brutal prisonsin Uzbekistan.

By establishing special military tribunals to deal with terrorists, we alsoundermine our ability to criticize governments such as Peru, Cuba, and Turkeythat have made use of such tribunals, bypassing their regular courts in order todeal with alleged threats. On December 25, a Russian military tribunal, meetingbehind closed doors, sentenced the Soviet journalist Grigory Pasko to four yearsin prison for disclosing information on environmental abuses by the RussianPacific Fleet to Japanese journalists. If the US were to resort to closed militarytribunals, any complaints it makes about such procedures elsewhere would ringhollow.

In effect, parts of the President’s order make the implicit claim that ter-rorists don’t deserve protections of due process. As President Bush has put it,“We must not let foreign enemies use the forums of liberty to destroy libertyitself.” But the President ignores the fact that one of the purposes of due pro-cess is to ensure that the right persons are convicted. Scores of death sentencesare being overturned because DNA evidence has established that convictionswere mistaken even after defendants were tried with the protections available inAmerican civilian courts. This should underline the need for protecting consti-tutional rights. And if due process is systematically denied to accused al-Qaeda



members, one likely consequence is that other categories of accused persons—drug dealers, mass murderers, child molesters, etc.—will be labeled as similarlyundeserving. Unfortunately, civil liberties particularly need defense in circum-stances that involve the most loathsome defendants. The next time, it may betoo late.

i

Proponents of human rights have been divided over the tribunals. Harvard LawSchool’s Laurence Tribe more or less endorses tribunals—invoking, without at-tribution, Justice Robert Jackson’s line that the Constitution is not a suicide pact—but he wants the objectionable features of Bush’s order regulated by Congress.Yale Law School’s Harold Koh, who served with distinction as assistant secre-tary of state for human rights in the Clinton administration, calls for trials inAmerican federal courts of alleged terrorists, wherever they are arrested. “Whynot show,” Koh writes, “that American courts can give universal justice?”

Unfortunately, no momentum has developed for another solution: trialbefore a special international court such as those established to deal with for-mer Yugoslavia and Rwanda. Indeed Harold Koh, who labels such a court a“more benign approach than President Bush’s military tribunals,” neverthelessrejects it as “slow and expensive.”

Koh is no doubt right that international trials would be costly and cum-bersome; but it is not clear that those disadvantages outweigh the value ofproceeding in a manner that has a better chance to gain broad internationalacceptance than entirely American courts, especially a military court set upin Guantanamo or some other military base. Deferring to such an interna-tional court could strongly advance American interests. Despite the slow pacewith which they have proceeded, the worldwide credibility achieved by the tri-bunals for ex-Yugoslavia and Rwanda is very high. For the US, achieving suchcredibility is second in importance only to convicting the guilty.

Human rights advocates who have supported international tribunals inother circumstances did not press for them after September 11, believing thatany such effort was doomed to be rejected by the Bush administration. In theimmediate aftermath of the attacks, as the administration courted other govern-ments to build an alliance against terrorism, some commentators suggested thatthe administration was abandoning its strongly proclaimed unilateralism. Infact, however, the administration’s quick success in Afghanistan has reinforcedthose in the White House and the Defense Department who believe that Amer-ica is better off going it alone. Renunciation of the ABM treaty is an obviousexample. With the rapid triumph of the US, any faint prospect evaporated thatthe administration would accept multilateral participation in trials of allegedal-Qaeda members.

What then is to be done about the military tribunals? A first step is to nar-row the range of those who may be tried before them. A judicial process shouldbe available to distinguish prisoners of war from unlawful combatants. The au-thority of the tribunals to try permanent residents of the United States should



be eliminated. The trials should be required to observe standards of due pro-cess that include, at least, rights to a public trial; to counsel of the defendant’schoice; to call and cross-examine witnesses; to be convicted only upon proofbeyond a reasonable doubt; to appeal to an independent and impartial court;and, in the case of aliens arrested in the United States, to have an opportunityto challenge the jurisdiction of such tribunals by habeas corpus.

Finally, human rights groups should be provided the opportunity to es-tablish a presence in Guantanamo or wherever else the trials are held, and tomonitor all proceedings and to circulate their findings. Whatever the facilitiesprovided to such groups, they will, of course, study the trials as best they can.Their conclusions about the tribunals are likely to matter to the United States,and to other countries, almost as much as the verdicts of the tribunals aboutthe defendants who appear before them.


POSTSCRIPT

Should Terrorist Suspects Be Triedby Military Tribunals?

While objecting to military tribunals, at least in their present form, Neierseems receptive to the idea of special international courts such as the Nurem-berg tribunals used to try Nazi leaders and the more recent international trialsof those accused of atrocities in Yugoslavia and Rwanda. The suggestion isworth exploring, though it raises some questions. How would the membersof an international tribunal be selected? Would judges from Islamic countriesbe included? If so, would they be able to function impartially amid pressuresfrom the “Arab street” and their own home governments? Is there a danger thatsuch tribunals would become occasions for anti-American diatribes? Typically,international tribunals are used in cases where no viable state exists in the re-gion where the atrocities occurred. In this case the atrocities occurred in themidst of the world’s most powerful nation—a nation reluctant to cede any of itssovereignty to an international tribunal.

Almost from the day of President Bush’s executive order establishingthem in November 2001, military tribunals became the subject of vigorousdebate in newspapers and periodicals. Columnist Nat Hentoff condemnedwhat he called “drumhead tribunals” in “Assault on Liberty,” The Village Voice(November 21–27, 2001), while Peter J. Wallison, of the American EnterpriseInstitute, wrote “In Favor of Military Tribunals,” The Christian Science Monitor(January 3, 2002). Former Appeals Court judge Robert H. Bork anticipated someof Wallison’s arguments in “Having Their Day in (a Military) Court,” NationalReview (December 17, 2001). Books related to military tribunals include Bar-bara Olshansky, Secret Trial and Executions: Military Tribunals and the Threatto Democracy (Seven Stories Press, 2002), which discusses the historical use ofsuch courts, and, more generally, All the Laws but One: Civil Liberties in Wartimeby Supreme Court justice William H. Rehnquist (Vintage, 2000).

As of this writing, it is not clear that military tribunals will be used inthe present conflict. President Bush wants them as an “option,” an availabletool for dealing with certain Al Qaeda leaders, particularly those captured inAfghanistan. John Walker Lindh, the American caught fighting with the Talibanin Afghanistan, is being tried in a civilian court because he is an Americancitizen, yet Zacarias Moussaoui, the so-called 20th hijacker, is also being triedunder civilian auspices, though he is a French national. So, at this point, thequestion remains unresolved: will all this debate turn out to be anything morethan a classroom exercise?

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