|
 he
debate over the president's order creating military tribunals to
try suspected terrorists consists largely of warring slogans and
overripe rhetoric: "shredding our Constitution," "seizing
dictatorial power," etc., on the one hand, and some version
of "the bastards don't deserve any better" on the other.
Analysis is in short supply. The issue of the balance between security
and civil liberties will be with us, in various guises, for a long
time to come. The reality we face means that no resolution of such
issues will be wholly satisfactory.
When the issue
is trying terrorists, there appear to be only four options: trial
in a federal court; trial before an international tribunal; trial
before a military tribunal; or setting the captives free. No body
this side of a psychiatric ward will choose the last option. But
the first and second don't win any prizes either.
Trials in federal
courts have features that make them totally inappropriate for the
trial of terrorists. Jurors often respond to emotional appeals,
and, in any event, would have good reason to fear for their and
their families' safety if they convicted. Criminal trials have been
adorned by judges with a full panoply of procedural hurdles that
guarantee a trial of many months. Appeals and petitions for habeas
corpus can take years, and should the death sentence be given, the
ACLU has shown how to delay execution for ten years or more through
appeals followed by one habeas corpus petition after another. An
open trial and proceedings of that length, covered by television,
would be an ideal stage for an Osama bin Laden to spread his propaganda
to all the Muslims in the world. Many Islamic governments would
likely find that aroused mobs make it impossible to continue cooperating
with the U.S.
The conclusive
argument, however, is that in open trials our government would inevitably
have to reveal much of our intelligence information, and about the
means by which it is gathered. Charles Krauthammer notes that in
the trial of the bombers of our embassies in Africa, the prosecution
had to reveal that Amer ican intelligence intercepted bin Laden's
satellite phone calls: "As soon as that testimony was published,
Osama stopped using the satellite system and went silent. We lost
him. Until Sept. 11." Disclosures in open court would inform
not only Middle Eastern terrorists but all the intelligence services
of the world of our methods and sources.
Trials before
an international tribunal would have all of these defects and more.
Picking the members of the court would itself be a diplomatic nightmare.
It would be politically impossible to keep judges from Islamic countries
off the court. In the past, moreover, international courts have
often shown a pronounced anti-American bias. Our prosecutor would
be helpless to avoid a propaganda circus and the disclosure of our
intelligence capabilities and methods. In the end, convictions would
be highly uncertain, but, if obtained, impassioned dissents and
the martyrdom of the terrorists would be certain. We should be wary
of international tribunals in any event since their establishment
seems part of a more general move to erode U.S. sovereignty by subjecting
our actions to control by other nations.
Military tribunals
avoid or at least mitigate these problems. Propaganda by televised
speeches would be impossible and any required disclosure of intelligence
methods and successes would be secret. Since trials could move far
more efficiently and appeals are cut off by the president's order,
punishment of the guilty would be prompt. One of the prices we pay
for an all-volunteer military is that for most Americans their armed
forces are an unknown world about which it is possible to imagine
all sorts of evils; but military tribunals are not, as they have
been called, "kangaroo courts" or "drumhead tribunals."
Much of the public is probably frightened by visions of defendants
convicted out of hand and bustled off to firing squads.
During the
Korean War, the officers in my battalion took turns prosecuting
and defending. (I had a notable lack of success in both roles.)
I sat on the court, and never saw an innocent man convicted but
did see a guilty man acquitted. (I prosecuted that one and it still
rankles.) Even then, before the widespread reform of the military
justice system, military courts manned by officers, in my opinion
and that of many others, were superior to the run of civilian courts,
more scrupulous in examining the evidence and following the plain
import of the law. If I were guilty, I would prefer a civilian jury;
if innocent, a military court.
These virtues
would be irrelevant if military tribunals were of dubious constitutionality.
They are not. The constitutional issue reached the Supreme Court
in Ex parte Quirin (1942). German saboteurs had entered the
United States illegally to destroy war industries and facilities.
Arrested by the FBI before they could act, they sought to file for
writs of habeas corpus, contending they had a right to trial before
regular courts rather than a military commission. The presidential
proclamation establishing the commission denied them access to those
courts.
The Court denied
the petition, judging it irrelevant that one of the defendants might
be an American citizen. In its decision, the Court made clear the
separate constitutional tracks of the two forms of justice: "Presentment
by a grand jury and trial by a jury . . . were at the time of the
adoption of the Constitution familiar parts of the machinery for
criminal trials in the civil courts. But they were procedures unknown
to military tribunals which are not courts in the sense of the Judiciary
Articles" of the Constitution. Consistent with that understanding,
military tribunals have been used by several presidents in time
of war. In the Revolutionary War, before there was a Constitution,
George Washington employed such tribunals freely, as did Abraham
Lincoln in the Civil War, and Franklin Roosevelt in World War II.
We remember the Nuremberg trial, with many of the trappings of a
civilian court, as an attempt (failed in my view) to establish an
international rule of law in open proceedings. That trial is not
a model for the problem we face now. There were, of course, no problems
of intelligence disclosures, but, more important, the open trial
was not regarded by the allies as the only, or in all cases the
preferred, method of proceeding. According to Mark Martins, a respected
scholar and military lawyer, "German regular army soldiers
were also defendants in many of the thousands of military courts
and commissions convened by the Allies after the war in different
zones of occupation."
If there is
a problem with Bush's order, it is the exemption of U.S. citizens
from trials before military tribunals. Quirin held that Americans
can be tried there, and it is clear that they should. The trial
of American terrorists in criminal court would pose all the problems
of trying foreign terrorists there: The prosecution would have to
choose between safeguarding our intelligence capacity and trying
the terrorist. The terrorists could well go free. Contrary to some
heated reactions, military tribunals are well within our tradition.
They are needed now more than ever.
|
