Nov. 13, 2001, President George W. Bush signed a military order establishing military tribunals to try non-citizens who are believed to be members of al Qaida or who are suspected of terrorism that affects the United States. The order permits the President to order detention of such non-citizens either indefinitely or until they are tried.
The President’s action raises constitutional and human-rights questions that need scrutiny. 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 terrorism at home, we can act as we have said others should act.
An important question is whether it is lawful to try the perpetrators of the Sept. 11 attacks before military tribunals. The jurisdiction of such tribunals 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 or civil wars or insurgencies.
Al Qaida, the group that allegedly carried out the Sept. 11 attacks, is not a state nor does it appear to be acting on behalf of a state. Sept. 11 there was not an armed conflict to which the laws of war can be applied. There is no jurisdiction to try members of al Qaida before a tribunal.
The attack was a criminal act that can be tried in federal or international courts. Traditionally, countries have opposed treating terrorist groups 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 need to be treated as prisoners of war.
Supporters of the tribunals cite the president’s authority as commander-in-chief, provisions of the Uniform Code of Military Justice and precedents from World War H. In ex parte Qurin, President Franklin D. Roosevelt established and the U.S. Supreme Court upheld such a tribunal for the trial of Germans sent into the United States to commit acts of sabotage in 1942. That tribunal occurred during a declared war against a state, was a trial for spying — a narrow exception that might be permitted under the U.S. Constitution — and occurred before 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. The trial was for acts outside the United States during a declared war against a state. That tribunal would not have been permitted under the subsequently ratified 1949 Geneva Convention.
Provisions of the order
President Bush’s order says the defendants are to receive a “full and fair trial.” Many of its provisions appear to undermine that claim. The order:
- Permits the president to designate those to be detained and tried;
- Authorizes the U.S. Secretary of Defense to appoint the judges —most likely military officers — to decide questions of law and fact;
- Suspends the federal rules of evidence;
- Allows the introduction of evidence that is hearsay or that has been coerced;
- Leaves unclear whether a defendant can choose defense counsel;
- Does not require conviction of proof beyond a reasonable doubt;
- Permits conviction and a death sentence upon the vote of two thirds of the commission members present;
- Allows no appeal, except that the record of the trial is submitted to the President or secretary of defense;
- Permits the proceedings, and presumably any death penalty, to be carried out in secret.
Each of these provisions is a departure from constitutional and statutory protections that govern criminal trials in federal courts. The military tribunals are also not akin to court-martials, which provide protections given defendants in federal courts.
Security versus fair trials
Proponents argue the security necessary to protect judges, juries and classified materials favors tribunals. However, the United States has been able to successfully try individuals accused of bombing the World Trade Center in 1993 and those involved in the 1998 bombings of U.S. embassies in Kenya and Tanzania. Convictions were obtained without the need to compromise classified material by using a federal statute — the Classified Information Procedures Act.
The recent indictment of Zacarias Moussaoui, alleged to be the 20th hijacker of the Sept. 11 attack, and his planned trial in a U.S. federal court with full constitutional rights is further evidence against the need for military tribunals.
There are alternatives for trying the alleged perpetrators of the Sept. 11 attacks. 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, with the advantage of internationalizing the trials. It would be the countries of the world against the terrorists.
Trials in U.S. federal courts, as were done in the past, are another choice. The trials are open, and there are juries and the right to appeal.