Bush’s executive order is remarkably sweeping: It allows the president to put any noncitizen on military trial, in secret, without the protection of the Bill of Rights. A suspected terrorist could be seized, tried and executed without the public knowing. Not surprisingly, the editorial pages of The Washington Post and The New York Times have been scathing. “Worse than the blow to the U.S. image abroad will be the potentially irreversible injury at home if Mr. Bush proceeds,” editorialized the Post. In an editorial entitled, “A Travesty of Justice,” the Times wrote: “Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law.”
The Wall Street Journal, citing military tribunals run by President Abraham Lincoln during the Civil War and Franklin Roosevelt during World War II, took the opposite view. “This is war, not a car theft in Chevy Chase,” the paper editorialized.
Can both sides be right? Yes. But finding a workable compromise will take a willingness to break precedent and, as Lincoln said, “to think anew.”
The first thing to understand is that our civilian legal system is not equipped to destroy Al Qaeda. Consider just the experience of the families in the case of Pan Am Flight 103, blown up over Lockerbie, Scotland by Libyan terrorists. Justice, administered by Scottish judges, was greatly delayed and incomplete. If the goal is the broader one of crushing Al Qaeda (as it must be), the task is simply beyond the capacity of civilian courts. It took more than 40 years for prosecutors to nail the Mafia, time we don’t have (the Mafia did not target civilians). The terrorist network is too big, and the courts too slow.
Moreover, the rules of procedure and evidence are a real impediment. You can’t pick and choose which protections would be offered, so the whole spectrum of rights would have to be granted to the terrorists. For instance, if a document that detailed the entire terrorist network were improperly seized, a judge would have to rule it inadmissable. That would slow efforts to crack Al Qaeda.
Civil libertarians argue that the American legal system worked well in convicting the Al Qaeda perpetrators of the 1998 embassy bombings. A few adjustments were made, such as allowing sensitive intelligence to be placed under seal. And the life sentences, handed out this fall, were just. But the process took three years, and granting certain legal rights–for instance, allowing the defense (and thus Al Qaeda) to see the prosecution’s evidence–might also hamper efforts to crack the terror network. It used to be hyperbolic to say that preserving such rights could cost lives. Not any more. As Supreme Court Justice Robert Jackson once said: “The Constitution is not a suicide pact.”
But Jackson, the chief prosecutor of the Nazi war criminals at the International Military Tribunal at Nuremberg, also said this: “To pass those defendants a poisoned chalice is to put it to our own lips as well.” Jackson wanted to make sure that the Nazis brought before that military tribunal were seen by the world to have been fairly convicted and sentenced. The judges at Nuremberg represented all of the major Allies (including the Soviet Union), and the trial was conducted in full public view.
Today’s military tribunals would have to operate differently. Nuremberg took place after World War II ended, so there was no danger in laying out all of the evidence publicly–and no fear that the non-American judges would go easy on the Nazis. This time, a fully public tribunal could compromise the ongoing war, and an international panel of jurists might not mete out the kind of justice the United States demands for the war crimes committed against it. Already, some European jurists are trying to equate the U.S. bombing of Afghanistan to the attacks of September 11. Then there’s the problem of capital punishment, which an international tribunal would prohibit nowadays. (Would today’s anti-death penalty Europeans have spared the Nazis that punishment?).
But Jackson’s basic point–that even military justice must be perceived as just–remains essential. President Bush’s plan would not achieve that end. Even if the terrorists convicted under it were guilty as hell, the verdicts would be seen as tainted. That’s because the president is granting himself powers beyond even those specified in the Uniform Code of Military Justice. His tribunals would be too secret, too nationalistic and too unaccountable. Fortunately, each problem can be addressed with a little jurisprudential imagination.
For trials to have any credibility, they can’t be secret. The military tribunals of the Civil War and World War II are useful precedents to establish the constitutionality of what Bush is proposing (upheld by the U.S. Supreme Court in the 1942 Quirin decision). But they took place in a different context, where international approval was not directly relevant to the war effort. This time it is, which means that there’s an even greater burden on the U.S. to be perceived as proceeding in a fair manner. Laying out the perfidy of the terrorists in public would also help on the public-relations front. It is both just and smart.
The only reason for secrecy is to avoid compromising the ongoing war on terrorism. The solution here is an easy one: if the authorities believe certain specific evidence might truly hurt the war effort, they can seal it. But most such publicly disclosed evidence will help advance the anti-terror cause, even if it is hearsay or circumstantial (both allowable under military law). Of course, if evidence is lacking altogether, the cases should not be brought.
The second big problem with the Bush tribunal plan is that it relies entirely on the United States. This is an understandable impulse. The attacks of September 11 were committed against us. It is our job to see justice done–not the Hague’s. The American public would go nuts–and rightfully so–if a judge from another country let bin Laden or some other terrorist off.
But we need some kind of international cooperation. “Even if the U.S. wanted exclusively American judges, there would be a role for others on the prosecution teams or filing ‘friend of the court’ briefs,” says Bruce Broomhall of the Lawyer’s Committee for Human Rights. Broomhall, whose organization is deeply troubled by the Bush plan, suggests that other nations with troops in Afghanistan could be invited to participate. (British, Canadian and possibly Turkish.) Some mechanism must be found to include other nations in the tribunals, or future international efforts to combat terrorism will be severely compromised.
The last and and most significant weakness of the Bush plan is that it is unaccountable. It gives the president almost dictatorial powers to mete out justice, ignoring 200 years of checks and balances in the American system. To remedy this, we must be creative. Perhaps there’s a viable hybrid approach, with a panel of federal judges acting as a kind of grand jury for the military court. The military prosecutors would be required to present secret evidence to those civilian judges, who would then clear the way for the military tribunal. This could be done expeditiously. It would prevent abuses and lend democratic credibility to the proceedings.
It’s hard to know why the Bush administration chose to advance the most radical of its options for bringing the terrorists to justice. It may have been partly to scare uncommunicative detainees, a form of psychological torture (“If you don’t talk, we’re going to put you on a list that can have you executed in no time”). Or it could be that the president simply did not think the issue through.
Either way, there’s a final, obvious option, popular with civil libertarians and hardliners alike: To kill bin Laden and the other Al Qaeda leaders in war, so we don’t have to figure out what to do with them in peace.
