On November 13, 2001, President Bush signed a military order establishing military tribunals to try noncitizens who are believed to be members of al Qaida or who are suspected of involvement in international terrorism that affects the United States. The order also permits military authorities to detain such noncitizens either indefinitely or until they are tried. The secretary of defense has not yet issued the regulations that will govern trial before these tribunals; however, a number of the provisions of the order as well as the tribunals themselves have engendered serious criticisms.
Can Members of Al Qaida Be Tried Before a Military Tribunal?
An important preliminary question is whether it is lawful to try the perpetrators of September 11 before military tribunals. These courts’ jurisdiction has been legally limited to violations of the laws of war, which can only be committed during war or armed conflicts to which the laws of war apply. Classically, that has meant only armed conflicts between states. (The laws of war can also apply to civil wars or insurgencies.) The terrorist group that allegedly carried out the attacks, al Qaida, is not a state; nor does it appear to be acting on behalf of a state. Thus, on September 11 there was no armed conflict to which the laws of war could apply, no violation of the laws of war, and thus no jurisdiction to try members of al Qaida before a tribunal. The attack was a horrifying criminal act that can and should be tried in federal courts. In fact, traditionally, countries have opposed treating terrorist groups such al Qaida as capable of committing violations of the laws of war. To do so grants them status as combatants with the arguably lawful right to attack military targets; captured fighters would also need to be treated as prisoners of war.
Supporters of the tribunals cite the president’s authority as commander-in-chief, some provisions of the Uniform Code of Military Justice, and precedents from World War H. In ex parte Qurin, President Roosevelt established and the Supreme Court upheld such a tribunal for the trial of German spies sent into the United States to commit acts of sabotage. However, that tribunal occurred during a declared war against a state, was a trial for spying (a narrow exception that might be permitted under the Constitution), and occurred prior to the Third Geneva Convention of 1949, which sharply limited the procedures that can be employed to try war crimes. The other cited precedent, in re Yamashita, concerned the trial of a Japanese general accused of war crimes in the Far East. Not only was the trial for acts outside the United States during a declared war against a state, but also, that tribunal would not have been permitted under the subsequently ratified 1949 Geneva Convention.
Will the Defendants Receive a Full and Fair Trial Before the Tribunals?
Although President Bush’s order says that the defendants are to receive a “full and fair trial,” many of its provisions appear to undermine that claim. These include provisions that: 1) permit the president to designate those to be detained and tried; 2) authorize the secretary of defense to appoint the judges, most likely military officers, who will decide questions of both law and fact; 3) suspend the federal rules of evidence and allow the introduction of evidence that is of probative value whether it be hearsay or evidence that has been coerced; 4) are unclear as to whether a defendant can choose defense counsel; 5) do not require conviction of proof beyond a reasonable doubt; 6) permit conviction and a death sentence upon the vote of two thirds of the commission members present; 7) allow no appeal, except that the record of the trial is submitted to the president or secretary of defense; 7) permit the proceedings, and presumably any death penalty, to be carried out in secret.
Needless to say, each of these provisions is a major departure from the constitutional and statutory protections that govern criminal trials in federal courts: judges are appointed for life and theoretically protected from executive influence; defendants only stand trial if indicted by a grand jury based upon probable cause; jury trials are guaranteed; neither hearsay nor coerced evidence is permitted; defendants can choose their counsel; conviction is only upon proof beyond a reasonable doubt; verdicts as to both guilt and the death penalty must be unanimous; appeals to courts are permitted; and trials are open. The military tribunals are also not at all akin to court-martials, which provide substantially all of the protections given defendants in federal courts.
The administration has apparently heard many of the criticisms of its planned tribunals, and it appears that some of their worst aspects will be modified when regulations are issued. Changes may well include opening the proceedings to the public, requiring conviction upon proof beyond a reasonable doubt, and providing the right to choose an attorney and some means of appeal within the military. This will cure some but not all of the defects pointed out by civil liberties advocates.
Proponents argue that the security and secrecy necessary to protect judges, juries, and classified materials argues in favor of the tribunals. However, the United States has been able to successfully try those terrorists accused of bombing the World Trade Center in 1993 and those involved in the embassy bombings, some of whom were apparently al Qaida members. Convictions were obtained without the need to compromise classified material by using a special federal statute, the Classified Information Procedures Act .The recent indictment of the alleged 20th hijacker, Moussaoui, and his planned trial in a U.S. federal court with full constitutional rights is further evidence that military tribunals are unwarranted to try the perpetrators of September 11.
Alternatives to Military Tribunals
There are two alternatives for trying the alleged perpetrators of the attacks on September 11. Both of them are superior to military tribunals in terms of ensuring a fair trial and in demonstrating to doubters, particularly in the Muslim world, that those convicted are guilty. The United States could establish an international court through the United Nations, much like the International Court for the Former Yugoslavia and the International Court for Rwanda. Important defendants could be tried before such an international tribunal, and it would have the great advantage of internationalizing the trials. It would be not just the United States but all the countries of the world against the terrorists. Trials in U.S. federal courts, as were done in the past, would also be a good choice. The trials are open, and there are juries and the right to appeal. Many of the lesser defendants could be tried before such courts. In the past, the United States has correctly criticized countries such as Peru and Nigeria for employing military tribunals; now is the time to demonstrate that even when facing great terrorism at home, we can act as we have said others should act.