On November 13, 2001 — two months after 9/11 — President Bush signed an Executive Order authorizing the U.S. government to try accused terrorists in military tribunals (a.k.a. military commissions) rather than in civilian courts. The president’s decision was swiftly and widely condemned by the political Left, which accused him of trampling on the civil rights and liberties of defendants who, the critics said, should be entitled to all the rights and protections afforded by the American criminal court system — where the standards that govern the admissibility of evidence are considerably stricter than the counterpart standards in military tribunals. The indicted al-Qaeda operative and U.S. citizen Jose Padilla — who was initially accused of plotting to detonate a radioactive bomb and to blow up multiple high-rise apartment buildings in an American city — became a cause celebre for the anti-tribunal chorus.
Then in June 2006 the Supreme Court ruled, with a five-Justice majority, that President Bush’s military tribunals were not authorized by federal law. This did not mean that tribunal rules were flawed or unconstitutional in any way, but only that those rules needed to be formally voted into law — or formally rejected — by Congress. In response to this decision, five months later Congress passed the Military Commissions Act of 2006, formally authorizing the adjudication of war crimes and terrorism cases in military courts. The House of Representatives vote was 253 to 168 (Republicans voted 219 to 7 in favor, Democrats 160 to 34 against); the overall Senate margin was 65 to 34 in favor.
According to the Defense Department, military tribunals, where military officers serve as the judges and jurors, are designed to deal with offenses committed in the context of warfare — including pillaging; terrorism; wilfully killing or attacking civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.
The issue of whether it is appropriate to try someone accused of the aforementioned transgressions in a military court depends upon how one answers a single overriding question: Is terrorism a matter of war, or is it a legal issue where redress should be pursued via the criminal-justice system — like robbery, vandalism, or murder? To answer this question, it is useful to have an operational definition for the term “terrorism.” The FBI places terrorism in a category clearly distinct from the crimes traditionally handled by civilian courts, defining it as the “unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”
By sending American troops into Afghanistan to overthrow that nation’s al-Qaeda-sponsoring Taliban regime, President Bush signaled clearly that he considered the atrocities of 9/11 to be acts of war that merited a military response; that is, he did not view the hijackings as mere violations of criminal codes by a band of 19 outlaws, but as acts of terrorism. It would not be enough, he decided, to merely track down whoever may have personally conspired with the hijackers and try them in federal court. Fifteen years earlier, President Reagan had responded similarly to the deadly bombing of a Berlin discotheque frequented by American soldiers. Once U.S. intelligence authorities had gathered convincing evidence that Mu'ammar al-Qadhafi’s Libyan government had sponsored the attack, Reagan deemed it an act of war and, rather than standing pat until redress could be achieved in a court of law, he ordered carrier-based warplanes to strike targets in Tripoli.
The Left largely rejects the notion that the current War on Terror is a legitimate, or even an actual, war — characterizing it instead as a contrived pretext for American imperialism (and oil-grabbing) abroad, and for the erosion of civil liberties domestically. Attorneys Spencer J. Crona and Neal A. Richardson suggest that many Americans have accepted this perspective because metaphorical references to “war” abound in contemporary vernacular — references to such endeavors as the “war on poverty,” the “war on drugs,” the “war on AIDS,” and the “war on hunger.” As a result, say Crona and Richardson, people may be inclined to view the war on terror as yet another social-justice or law-enforcement undertaking that, while it might warrant some financing, certainly does not merit military action.
In addition, a significant proportion of Americans fail utterly to understand the nature of the enemy that has declared war on them. As the late Ayatollah Khomeini (a Shi’ite) of Iran announced in the wake of the 1979 hostage-taking at the U.S. Embassy in Tehran, “We are at war with infidels…I ask all Islamic nations…to join the holy war.” Today Osama bin Laden (a Sunni) preaches a similar doctrine of death. In 1996 he issued his Declaration of War Against the Americans Occupying the Land of the Two Holy Places, and two years later he set forth a Declaration of Jihad Against Jews and Crusaders. Whatever hatreds the Shi’ites and Sunnis feel toward one another, they are united by their shared commitment to wage war on America. Yet leftists choose to pretend that a state of war did not exist until President Bush deployed U.S. troops to Afghanistan and Iraq. Khomeini himself viewed such self-deceivers with the greatest contempt when he sneered: “Those who know nothing of Islam pretend that Islam counsels against war. Those who say this are witless. Islam says: Kill all the unbelievers just as they would kill you all! Kill them, put them to the sword and scatter their armies.”
But opponents of military tribunals argue that even if radical Islamists have in fact declared war on America, the U.S. Congress, which has sole authority to make formal declarations of war, has not done so in this case — and that the use of such tribunals is therefore logically unjustifiable. There is in fact considerable precedent, however, for trying accused war criminals in military courts even in the absence of a Congressional declaration of war: President Abraham Lincoln used military commissions extensively to sentence Confederate terrorists for such crimes as seizure, arson, and the destruction of transportation, communication or other systems of infrastructure during the American Civil War.
In all of American history, Congress has made formal declarations of war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But as Henry Mark Holzer points out, presidents acting in their capacity as commanders-in-chief have sent troops into battle at least 130 times in the absence of such declarations. Sometimes those military conflicts, while not formally declared wars, were explicitly authorized by Congress. Among these were the Vietnam War (authorized by a vote of 88-2 in the Senate, and 418-0 in the House); the 1991 Persian Gulf War (52-47 in the Senate, 250-183 in the House); the 2001 invasion of Afghanistan (98-0 in the Senate, 420-1 in the House); and the 2003 invasion of Iraq (77-23 in the Senate, 296-133 in the House).
In other cases the U.S. has engaged in combat against a particular form of enemy aggression, even though our country was not officially at war with the nation from which the aggressors hailed. A good example of this was the 1801 Talbot v. Seeman Supreme Court case, which involved French privateers who were preying on American commercial shipping. In its decision, the Court affirmed Congress’s right to declare a “partial war” against the transgressors. Chief Justice John Marshall wrote at the time: “The whole powers of war being, by the Constitution of the United States, vested in Congress…Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial war, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” The parallel with the current war on terror, where intelligence and military forces seek to combat saboteurs and killers from a number of nations that are not formally at war with America, is obvious.
If we accept the premise that terrorism cases can rightfully be categorized under the heading of war, a secondary consideration in determining if military tribunals are the proper venue for their adjudication involves the question of whether a given defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al-Qaeda fails even to come close to satisfying these conditions. In the 1942 Ex parte Quirin case, the U.S. Supreme Court spelled out the implications of such failure:
[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
“Our government, the Court added, “by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and distinctive emblems.’”
If a terror suspect does not even qualify for designation as a lawful combatant, giving him access to the civil rights protections of the American jury system can properly be defined as an act of madness.
In recent years a Geneva Protocol relaxed the foregoing criteria in recognition of guerrilla fighters as legitimate combatants in what are nominally “wars of national liberation,” even though they neither wear uniforms nor bear arms openly at all times. But even under this lower standard, the designation of “lawful combatant” requires one to eschew indiscriminate attacks against civilians and to bear arms openly during military deployment and engagement — requirements that al-Qaeda operatives do not fulfill. As Crona and Richardson write, “A casually attired driver of a van carrying a concealed bomb does not fit anyone's definition of a lawful combatant.”
Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.” Crona and Richardson explain the profound significance of this:
A relaxation of the hearsay rule might become critical in a prosecution for terrorism where it may be impossible to produce live witnesses to an event which occurred years earlier in a foreign country. For example, the indictment in the Pan Am Flight 103 case details the alleged purchase of clothing, by Libyan intelligence agent Abdel Bassett, for placement in the suitcase with the bomb. The clothing was used to disguise the contents of the suitcase containing the bomb, which was placed inside a radio-cassette player. Under the rules of evidence applicable in U.S. District Court, the prosecution would have to produce in person the Maltese shopkeeper to identify Abdel Bassett as the man who allegedly purchased the clothing back in 1988, as opposed to producing the investigator who tracked down the shopkeeper and showed him a photograph of Abdel Bassett. Even if we assume that the shopkeeper could be located six years or more after the fact, we recognize that it is nearly impossible to secure involuntary testimony from a witness who is a citizen of a foreign country, especially one that historically has been less than sympathetic to the United States. The reach of a federal court subpoena simply does not extend to Malta.
The rules governing the admissibility of coerced testimony and hearsay have a direct bearing on the case of Jose Padilla, who is now being tried in a civilian court. In June 2004 the Justice Department released a declassified document enumerating Padilla’s various terrorist plans and his al-Qaeda connections. The information therein came not only from Padilla’s own admissions, but also from a number of additional al-Qaeda detainees who independently confirmed (sometimes through coerced testimony) the details that Padilla gave, particularly about the plots to detonate a “dirty bomb” and to blow up apartment buildings. But none of this evidence will be admissible in Padilla’s current trial. Consequently, he is being formally charged with offenses of far less gravity than those detailed in the aforementioned Justice Department document. As The New York Times explains:
[C]onstrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during [coercive] interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al-Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy. … Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002. But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel — whether or not he was mistreated, as his lawyers claim — would not be admissible in court. And it is unlikely that information obtained during the harsh questioning of Al-Qaeda detainees would be admissible, either....
Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop: “Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.” Dealing with terrorists under such a set of rules is analogous to participating in a shootout where only the enemy’s weapon is loaded. Moreover, it signals to the watching world that Americans have become consumed by guilt vis a vis the allegedly irredeemable flaws of their own culture and, as a consequence, do not possess the requisite courage for dealing aggressively with those who would seek to destroy their country.
Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them. This obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who would undoubtedly choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised. As John Dean writes, “Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source — be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source.” By contrast, military tribunals permit incriminating evidence to be presented to the judge and jury, while being kept secret from the public as well as from the defendant and his attorney.
Critics commonly suggest that, given the foregoing ground rules, military tribunals are little more than kangaroo courts where defendants have no chance of receiving a fair hearing. This may well have been true in Stalin’s Russia, but by no means has it been the case where Western democracies are concerned. Consider the post-World War II Nuremberg trials of the most important captured leaders of Nazi Germany, architects of the Holocaust. The International Military Tribunal at Nuremberg acquitted three of the twenty-two major defendants; sentenced four others to twenty years in prison or less; and sentenced three to life in prison. In other words, nearly half of those accused were spared the death penalty. Similarly, United States military tribunals, which were composed solely of American judges, tried 177 other Nazi officials and members of the SS, convicting 142 and executing only 12. It can be reasonably argued that military jurors are less likely than their civilian counterparts to render decisions rooted in “inflamed passions” rather than in solid evidence. Finally, we must acknowledge that those who serve as jurors in the civilian trials of accused terrorists may, if they render “guilty” verdicts, be extremely vulnerable to violent retribution from affiliated terrorist and militia groups — another argument against civilian trials for terrorists.
For those who are concerned about legal precedent, it must be understood that the use of military tribunals for the adjudication of war crimes is in no way a departure from past practices. As noted earlier, military commissions were used commonly during the Civil War. Prior to that, General George Washington employed such tribunals during the American Revolution in the late 18th century. In the era following the ratification of the U.S. Constitution, military tribunals were first convened by Major General Winfield Scott during the Mexican-American War of 1846-48, to adjudicate the alleged war crimes of American troops and Mexican guerrilla fighters alike. World War II also saw the use of military courts, the most famous case involving eight marines of the Third Reich (one of whom was an American citizen named Herbert Haupt) who rode a Nazi U-boat to the east coast of the United States, where, laden with explosives, they disembarked and set off toward various locations with the intent of bombing railroads, hydroelectric plants, factories, department stores, and defense facilities across the country. The saboteurs were wearing no military uniforms or identifying emblems when they were captured, meaning that they were, in the eyes of the law (as defined by the Supreme Court in Ex parte Quirin, quoted earlier in this article), “unlawful combatants.” Refusing to grant the perpetrators civilian jury trials, President Franklin D. Roosevelt quickly created a secret military commission to hear their cases. All eight were convicted and sentenced to death, though two turncoats later had their sentences commuted to life in prison.
Notwithstanding (or perhaps because of) the indisputable fact that trials by military commissions would permit the United States to prosecute terrorism cases much more quickly and effectively than would civilian trials, the political Left overwhelmingly condemns such tribunals, calling instead for greater civil liberties safeguards for suspected terrorists. Columbia University historian Alan Brinkley calls the use of military tribunals “one of the most extraordinary assaults on civil liberties” in American history. Senator Harry Reid, D-NV, complains, remarkably, that the Military Commissions Act of 2006 “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” And Senator Chris Dodd, D-CT, a presidential candidate for 2008, has introduced legislation that would give habeas corpus protections to military detainees; prohibit the introduction of evidence that was gained through coercive methods; authorize military judges to exclude hearsay evidence they deem to be unreliable; and narrow the definition of “unlawful enemy combatant.”
Such is the mindset of the Left — ever prepared to defend the supposed rights and liberties of every last terrorist, as if the Constitution of the United States were nothing more than a suicide pact for the American people.
* Spencer J. Crona and Neal A. Richardson, “Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism” (Summer/Fall 1996)
* John Dean, “The Critics Are Wrong” (November 23, 2001)
* John Dean, “Appropriate Justice for Terrorists” (September 28, 2001)
* John Dean, “Military Tribunals: A Long And Mostly Honorable History” (December 7, 2001)
* Michael C. Dorf, “What Is an ‘Unlawful Combatant,’ and Why it Matters” (January 23, 2002)
* Henry Mark Holzer, “Who’s Who Among American Terrorists” (October 17, 2002)
* Henry Mark Holzer, “The Fifth Column’s Legal Team” (June 18, 2002)
* Deborah Sontag, “In Padilla Wiretaps, Murky View of ‘Jihad’ Case” (January 4, 2007)
* Jonathan Weisman, “Battle Looms in Congress over Military Tribunals” (July 13, 2006)
* “U.S. Supreme Court: Holtzman v. Schlesinger, 414 U.S. 1304” (1973)
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