Military tribunals: are they fair?
Last fall President Bush published a "military"
order, under his specific Commander-in-Chief powers in Article II, designating
military tribunals as the "courts" in which to try those who
perpetrated the September 11 attack. The President's order was not an
Executive Order, under his general Article II powers, as the Chief Executive
of the United States.
In January, the Administration, taking into account many
criticisms, published an implementing Department of Defense Military Order.
To answer these questions, three audiences must be taken
into account. First, the primary purpose of the attack on the United States
on September 11 appears to have been to have the United States react in
a way which would contribute to further inflaming the general populations
in the moderate Muslim countries, particularly the Saudi Arabian population,
so as to destabilize, and enable the fundamentalists to overthrow, those
governments. We should not contribute to that inflammation.
The second audience is "our allies." We cannot
ask them to assist us in prosecuting terrorism (and this may well be a
fifty-year effort) and at the same time seek to prosecute individuals
in a way that is totally offensive to our allies.
And, of course, the third audience is "the citizens
of the United States." Because we have been the victims of this attack,
the Administration must reasonably satisfy American public opinion. No
one would argue that someone, if not the United States itself, has the
legal right to prosecute the individuals involved for what has been done.
There are five "forums" in which prosecution could
take place. In the sense of a "spectrum" (no political implication),
on the left, prosecutions could take place in foreign national courts.
Second, of course, are the military tribunals proposed by the Administration.
Third, the established military courts martial system. Fourth, the regular
United States District Courts (the Article III courts), and, finally,
at the extreme right, the possibility of a special international tribunal.
As far as foreign courts are concerned, the Administration
has suggested that some of the individuals involved may be prosecuted
in various foreign jurisdictions. This alternative would produce the problem
of different legal systems, different due process requirements, and the
potential for inconsistency.
With regard to an international criminal court, some observers
have proposed that a court be established with a rather large bench, with
representation from Muslim countries as well, to accommodate the first
audience's perceptual requirements. This alternative is not realistic.
The Bush Administration, as was the Clinton Administration, is strongly
opposed-except in unique circumstances-to international criminal courts.
As a practical matter, of the five theoretical alternatives,
the three in the "middle" remain: military tribunals; regular
courts martial; or the use of the United States District Courts. In this
context, it is helpful to consider the concerns of the Administration
which have led them to the military tribunal alternative.
First, has been safety and security in terms of judge, juror
and courthouse protection. Second is secrecy-in two senses. One is in
the intelligence sense of protecting classified information and preventing
the disclosure of intelligence sources and methods. More generally is
a feeling that the whole procedure simply ought to be kept secret. Second,
concern over the slow pace of the regular courts. The original proposal
for the use of military tribunals came from the first Bush Administration
Attorney General William Barr's concern with the slowness of the prosecution
of the Lockerbie bombers. Lockerbie was not a precedent; necessary concessions
had to be extracted from the government of Libya over ten years.
Other concerns of the Administration: wanting to have looser
standards for admission of evidence; obviously, a greater likelihood that
the death penalty might be imposed; not to afford a propaganda forum for
the defendants; and Attorney General Ashcroft's early statement that he
didn't want to have "grandstanding" lawyers. To its credit,
the Administration, based on public criticisms, has come far since the
Presidential order was published in the fall. For example, concessions
have been made on the burden of proof ¾ it now must be beyond a
reasonable doubt. However, standards of evidence have, for example, been
left loose- offensive to the other two audiences ¾ the Muslim masses
and our allies abroad.
A more appropriate partial compromise would be to use the
established law under the Uniform Code of Military Justice, which has
been in existence since 1950. There are clear rights of appeal, which
is another matter subject to doubt in the various orders published to
date. Courts martial can move at a relatively rapid pace; time delay is
not a factor. Evidentiary concerns can be avoided; the rules of evidence
in courts martial are largely the same as in the District Courts. Very
importantly, there is a serious question whether specific congressional
authority is required to institute military tribunals absent a declared
war. There is already standing congressional authority for courts martial
to have concurrent jurisdiction over offenses of the type being dealt
Finally, regular United States District Courts. Those courts have historically tried terrorists, slave-traders and pirates- those regarded as beyond the pale of civilized behavior. The District Courts have already dealt successfully with the 1993 original World Trade Center bombing. Further, two cases were decided within the last year by Judge Sand in the Southern District of New York- each entitled United States v. Osama Bin Laden, which arose out of the two African embassy bombings in 1998. On questions of security, District Courts regularly try criminal cases involving organized crime.
Further, the Classified Information Procedures Act would
enable a Federal district judge to limit public access to sensitive information.
District Courts can certainly move quickly if the circumstances warrant.
And, in fact, District Courts do impose death penalties, as in the Oklahoma
City bombing case.
At the very beginning, the administration had two choices: it could proceed under the regular criminal laws, or it could take the position that the United States is at war and, in effect, seek to use the military tribunal alternative.
The best resolution- what the Administration is, in fact,
doing in order to minimize Constitutional challenges- is to make a decision
very carefully case-by-case, based upon: the nature of the charges; where
the person was apprehended; where the person is going to be tried; and
who exactly is being accused- a member of the Taliban military, or a member
of Al Qaeda. The District Courts can be used if a person being prosecuted:
was lawfully present in the United States, whether as a citizen or an
alien, at the time of the crime; is being prosecuted for violation of
the regular criminal laws; or is being apprehended or tried in the United
States. And the converse is also true- regular courts martial, under the
Uniform Code of Military Justice, can be used if: the trial is of a non-US
citizen, or an alien not lawfully present, for violation of the laws of
war; and the individual involved has been apprehended and is being tried
outside the United States.
What is important is not just to see that justice is done, but that the world perceives that justice is done.
Professor Wiley served as General Counsel of the Defense Department in the Ford Administration.