|
Editor's
note: On Tuesday, President Bush issued
an executive order creating U.S. military tribunals to try foreigners
accused of terrorist attacks. Catholic University Law School Dean
Douglas Kmeic's piece on the advantages of military justice, below,
appeared on NRO on Oct. 11.
 ttorney
General Ashcroft has asked Congress to enhance law enforcement's
ability to combat terrorist organizations and those who harbor or
finance them. Necessary questions have been asked, and in my judgment,
sufficiently answered as to whether these proposals curtail our
civil liberties. They do not. These proposals are aimed at reconciling
warrant and surveillance authority with global communications and
detaining and removing those entering the United States for the
purpose of causing civilian deaths through weapons of mass destruction.
Unless construed well beyond their intended text and context, they
should have no effect on the constitutionally protected speech and
association of American citizens.
There is much
hand-wringing over whether a relatively modest change in foreign-intelligence-gathering
authority will someday lead the Supreme Court to quash a search
warrant against Osama bin Laden, or worse, lead to suppressing the
evidence against him in his subsequent criminal trial. Fat chance,
but a subsequent criminal trial? Do we really intend to bring bin
Laden to trial as if he were a common thief or murderer — times,
of course, 7,000?
As sensible
as it may be to expand warrant authority in the context of terrorist
emergency to include wireless and Internet communication and to
raise the penalties for the knowing possession of biological toxins
not reasonably necessary for peaceful purposes, it should not be
assumed that the terrorist organizations responsible for September
11 should be tried in federal court. This is to confuse war and
the crimes of war. Terrorists are neither soldiers (justifying widespread
military action against a given nation state) nor garden-variety
criminals, meriting federal indictment, they are war criminals.
The nature
of the difficult military operations to root out these architects
of war crime are as yet unannounced. No nation should telegraph
its troop movements in newsprint. But whatever means of capture
is employed, it is far healthier for the rule of law if the ultimate
destination and method of punishment is fully understood now, in
advance. My former Justice colleague and U.S. Attorney General,
William Barr, has been quoted as saying "[t]here's a basic
tension as to whether to treat this as a law enforcement issue or
a national security/military issue."
Barr suggests
that we "[f]ind these people and demolish them." That
may happen on the field of battle, but if it does not and we apprehend
them instead, my suggested destination would be a military tribunal,
not the U.S. District Court. By definition, terrorism is aimed at
indiscriminately killing civilian innocents and destroying civilian
property. Such actions are not crimes against a single state, but
humanity. Terrorism is not some social or cultural dysfunction capable
of rehabilitation or rectification by ordinary law enforcement.
If terrorism is a military threat, and it is, then the terrorists
are more appropriately punished by the system of military tribunals
that has a long history in our nation.
By joint resolution,
Congress has given President Bush immense authority not only to
respond to the events of September 11, but all cooperators in those
cowardly actions or "any future act" of international
terrorism. The president has not been rash in employing this vast
delegation. Given the elusive, shadowy nature of the terrorist face,
this is both wise and strategic. Our objective is to punish those
who took our brothers and sisters — or in my case a faculty
colleague killed in the Pentagon plane — and to root out and
deter the instigators of further harm. Initially, this is best accomplished
by a partial or targeted declaration of war, not against Afghanistan,
itself, but the terrorists resident there, or anywhere. As long
ago as 1801 in Talbot v. Seeman, Chief Justice Marshall
held that: "Congress may authorize general hostilities . .
. or partial [war], in which case the laws of war, so far as they
actually apply to our situation, must be noticed."
What would
noticing the laws of war mean in this instance? First and foremost,
that when our special commando forces or international allies seize
Bin Laden and company, these marauders would not be afforded the
same extensive constitutional due-process protections as prevail
in federal court. Instead, he and his accessories would be brought
before military tribunals governed by the straightforward standard
of admitting all probative and relevant evidence. Thus, neither
the hearsay rule (which has bedeviled prior terrorist trials in
federal court because of the disappearance or unreachablility of
direct witnesses) nor other ill-fitting exclusionary rules that
have no deterrence-based relevance to this setting would trip up
the admission of evidence obtained under the noncoercive, humane
interrogation permitted under military regulation.
A violation
of civil liberties? No, simply a recognition of well-established
precedent. Military belligerents violating the international laws
of war are tried before a panel of military officers, not juries
of their peers — no matter what the Taliban may seek as a condition.
Such military commissions received extensive use in the Civil War,
and were affirmed by the Supreme Court in the famous World War II
decision sentencing General Tomoyuki Yamashita to hang for the brutal
atrocities he ordered against civilians in the Philippines. When
Yamishita petitioned the Court for habeas corpus, the Court rebuffed
him stating that the war power delegated by Congress includes administering
a system of military justice for the trial and punishment of those
combatants who have committed war crimes. No case contradicts this.
The Civil War precedent, Ex parte Milligan that nominally
questions the availability of military tribunals where civilian
courts remain open, was later confined to its unique domestic insurgency
facts, and specifically the fact that Milligan was not — in
international parlance — an "unlawful belligerent."
Terrorists clearly are.
Beyond these
precedents, Congress has textual authority under the Constitution,
not just to declare war, but "to punish Offenses against the
Law of Nations." The punishment of war crimes is thus the responsibility
of Congress, not the federal judiciary. Arguably, Congress's joint
resolution is ample delegation to the commander in chief to set
up a tribunal for the accusation, trial, and punishment of the terrorists
involved in the destruction of the World Trade Center and the Pentagon
as well as the related killings in Pennsylvania.
Since the procedures
in these tribunals need not be either those of the federal rules
nor the Uniform Code of Military Justice, which is applicable to
regular soldiers, and by international law, comparable enemy combatants
in uniform, would a military commission just be a sham or stacked
deck against the terrorists? History suggests otherwise. Commissioned
officers in the Nuremberg trials successfully differentiated between
those who were the architects of the Holocaust and those of lesser
complicity. So too, exclusively U.S. military tribunals trying Nazi
war criminals and saboteurs acted similarly restrained after World
War II.
And insofar
as swift and deliberate justice is a consideration, a military commission,
reviewed by commanding officer and via the writ of habeas corpus
a likely — but single — stop at the Supreme Court, is
certainly far more expeditious than anything comparable in the regular
judicial practice.
Of course, can the fugitive terrorists realistically be brought
before these tribunals? President Bush says the terrorists can run,
but not hide. I believe him. And here is a further thought based
upon the little studied constitutional provision allowing "Letters
of Marque and Reprisal." Simply put: Congress has the power
to grant money prizes for securing the seizure of these at-large
terrorists.
The attorney
general has asked Congress for augmented authority to offer rewards
for those who may assist in bringing the guilty to justice. It is
entirely fitting for the spirit of free-market capitalism to result
in the capture and punishment of what Sir Edward Coke centuries
ago termed "hostis humani generis" — the enemies
of all mankind. Caveat hostis humani generis — let the
enemies of mankind beware.
|
