REVIEW & OUTLOOK
Terrorists on Trial
The case for military tribunals.
A few days after September 11 President Bush said he wanted Osama bin Laden "dead or alive." We think we know which one most Americans would choose. But just in case second-best obtains, Mr. Bush has settled on an appropriate and useful way to bring him to justice.
Using his power as commander-in-chief, the President signed an order this week establishing military commissions to detain, try and sentence suspected terrorists and their collaborators. The directive applies only to non-citizens, and the trials (which can be secret in whole or part) may be held here or abroad. Mr. Bush will decide who is subject to such prosecution and commission members will be appointed by the Secretary of Defense. The order specifically excludes the use of federal and international courts to try suspected terrorists.
These are extraordinary--but in our view necessary--measures for extraordinary times. Such tribunals have a long American history. And they are justified under both the U.S. Constitution, which gives the President the power to "make war," as well as international law, which provides for the treatment of "unlawful combatants" in time of war.
Above all they are warranted as a matter of common sense, as a way to shield an essential part of the war effort from the excesses of the modern U.S. criminal justice system. The prospect of trying suspected terrorists the same way we tried O.J. Simpson is on its face absurd, and not only because of a global media circus that would give us "All Osama, all the time."
One sober reason is U.S. standards of evidence. Do we really want to give people bent on destroying the U.S. the right to throw out evidence based on the exclusionary rule? Under this standard, a nuclear suitcase bomb discovered in a defendant's living room would be excluded as evidence if it was gathered without a proper search warrant. We'd like to put that one to a vote of the Cantor Fitzgerald survivors.
There is also the question of secrecy, especially for evidence gathered by confidential means. The war against terrorism promises to be long, so one or more trials could take place before the terror networks are all broken up. This means that evidence disclosed in public court could compromise our ability to eavesdrop on or capture other terrorists.
We already have experience with this from the trials of the 1993 World Trade Center bombers. Under normal criminal procedures, those trials took months to complete. And to make its case the prosecution was forced to disclose information about al Qaeda that told bin Laden what the U.S. knew about him. From that he might have inferred how we knew it. As Justice Robert Jackson once wrote, the Constitution is not a "suicide pact."
Of course none of this impresses our couch-potato civil libertarians, who are up in arms about Mr. Bush's decision. They can't seem to distinguish between U.S. citizens, who will retain all due process rights, and foreign terrorists, who don't deserve the protection of the very Constitution they seek to destroy. Someone might want to introduce the ACLU to the judges and jurors who have already had to preside over terror trials. We know two judges who still live with bodyguards years later, and not irrationally, given what we know about al Qaeda's ability to live underground for years. This is war, not a car theft in Chevy Chase.
And, in fact, Mr. Bush is far from the first President to utilize military commissions. George Washington, that notorious despot, relied on them during the Revolution (before the Constitution existed), as did Lincoln and FDR. In Tappan, New York, a visitor can stop by The Old '76 House, a restaurant in the house where British Major John Andre, a cohort of Benedict Arnold, was imprisoned before his trial on September 29, 1780, by a board of military officers appointed by General Washington. Andre, who had been disguised as a civilian, was convicted of spying and hanged three days later.
Military commissions were used extensively during the Civil War to try Confederate spies for such acts as capturing merchant ships, attempting to derail a train and setting fire to New York City. The doctor who treated John Wilkes Booth was tried by a military commission. They were also used in the Mexican war, the conflict with the Dakota Sioux Indians in the 1860s and World War I.
Much of this history is recorded in the U.S. Supreme Court's 1942 Quirin decision, in which the Court found that military commissions were constitutional for unlawful combatants. In that case, eight Germans who had entered the U.S. surreptitiously to blow up bridges and other targets were tried in camera. Like the al Qaeda terrorists, the Germans had been trained at "a sabotage school . . . where they were instructed in the use of explosives." Unlike the al Qaeda terrorists, they had only conspired to inflict harm on the U.S.; they hadn't actually succeeded at the time they were arrested, convicted and (in the case of six) hanged. Quirin was a unanimous decision.
What the critics of military tribunals are really saying is that they don't trust the U.S. government to use this power properly. We're as skeptical of government as anyone, but when the American homeland is threatened as it now is, unusual powers are warranted. Osama bin Laden doesn't deserve the legal artifice of Johnnie Cochran. He deserves military justice.
