Appropriate Justice for Terrorists:Using Military Tribunals Rather Than Criminal Courts

President Bush and senior administration officials have repeatedly stated that combating terrorism will call for new thinking. We are in a non-traditional war against an unconventional enemy — an enemy who takes abusive advantage of our Constitutional freedoms, including our criminal justice system.

On September 24, Newsweek reported that, to bring terrorists to justice, Department of Justice lawyers are rethinking traditional methods. "Perhaps the most startling idea under examination would be a new presidential order authorizing secret military tribunals to try accused terrorists," the magazine reports.

Military tribunals were also recommended following the earlier terrorists attacks on the World Trade Center, by Spencer J. Crona and Neal A. Richardson, writing in the 1996 Oklahoma City University Law Review. Crona, a former newspaper editor and attorney in Denver, Colorado, and Richardson, a Deputy District Attorney in the same city, collaborated in presenting a case for such proceedings, which I have highlighted below.

While I have drawn on Crona's and Richardson's scholarly analysis, and considered arguments in this column, I have not been able in this space to do it justice, and it is very much worth reading in its entirety. Indeed, I found the article so helpful that I also passed it on to friend at the Department of Justice, requesting that he pass it on to those currently examining the potential of military tribunals.

President Lincoln made extensive use of military tribunals during the Civil War, and President Roosevelt used them during World War II.

For example, during the Civil War, Confederate army captain Robert C. Kennedy was captured, tried, and convicted by a military commission. Wearing a civilian disguise, he had sought to disrupt the Union war effort by setting fire to New York City.

Kennedy's case was one of several cited by the U.S. Supreme Court when it addressed this issue in Ex Parte Quirin, which was decided in 1942 in the midst of World War II. In Quirin, the Court confirmed the authority of Congress and the President to try Nazi terrorists operating in the United States by military commissions.

Quirin was one of eight Nazi saboteurs who had crossed the Atlantic in a German submarine: four Nazi operatives landed on Long Island, New York and another four at Ponte Vedra Beach, Florida. The FBI arrested both groups, and turned them over to the military, which promptly tried them.

The Nazis sought to halt the proceedings with habeas corpus petitions, claiming that since the state and federal criminal courts were available, the military tribunal had no jurisdiction. The Supreme Court rejected the claims, and let the military tribunal's convictions of the men for violating the laws of war, spying and conspiracy stand. The Supreme Court noted:

The … enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed … to be offenders against the law of war subject to trial and punishment by military tribunals.

In the course of deciding Quirin, the Supreme Court rejected the precedent of Ex Parte Milligan, on which the Nazi saboteurs had relied.

The high Court's landmark ruling in Ex Parte Milligan was issue in 1866, following the Civil War. Milligan had been convicted by a military commission of violating the laws of war by planning to form a secret military organization to seize an arsenal, release Confederate prisoners, arm them, and then join with others to invade, on behalf of the Confederacy, Indiana, Kentucky, and Illinois.

Sentenced to be hanged for his crimes, Milligan appealed. Five justices held that Congress did not have authority to create military commissions when state courts were open and available. They also found that Milligan had been denied his Sixth Amendment right to a jury trial when he was tried before the commission.

Four justices concurred with the majority ruling, but on different grounds. They rejected the majority's contentions that Congress did not have the power to create such military tribunals, and that such tribunals were bound to follow the Bill of Rights.

No less an authority than Chief Justice William Rehnquist has addressed the cases of Ex Parte Quirin and Ex Parte Milligan, and the question of military tribunals. The Chief Justice has been prescient before (He wrote a book about impeachment long before he found himself presiding at President Clinton's Senate trial). Now he has turned out to be prescient again: In 1998, he wrote and published All The Laws But One: Civil Liberties in Wartime.

In the book, Rehnquist examines Milligan at some length. Rehnquist notes that the government, which at the time — 1866 — had yet to create the office of Solicitor General, had little experience presenting cases to the Supreme Court. Mr. Milligan, on the other hand, was extremely well represented. In making this contrast, Rehnquist implies that had the government done a better job, it would not have lost the case.

The Chief Justice also reads the ruling in Milligan as limited. He notes that some 75 years later in Quirin "the Court concluded that Milligan … was a non-belligerent, not subject to the law of war."

Finally, if these comments left any doubt about Rehnquist's skepticism about Milligan, Rehnquist resolves it. He writes: "One may fully agree with the rather disparaging but nonetheless insightful argument of Jeremiah Black [attorney for Milligan] in the Milligan case — soldiers are no more occupationally trained to conduct trials than are sailors or sheep drovers — and yet believe that Congress should be able to provide for trial of defendants by a judge without a jury in a carefully limited class of cases dealing with national security in wartime."

In short, if the most recent decision (Quirin) and the views of the Court's Chief Justice are to be our guide, there appears to be no Constitutional prohibition on the use of military tribunals to address terrorism — especially terrorism of the scope of the September 11 attacks, and terrorism described by the President as an act of war. However, creation of such tribunals would require an act of Congress — as Crona and Richardson recognize.

Congress should pass such an act — in part because terrorism is very different from other crime. For one thing, existing international laws prohibit such activities. As Crona and Richardson note, when terrorist acts of aggression target innocent civilians, they are not "legitimate acts of war under international law, but rather must be regarded as war crimes or crimes against humanity." The 1949 Geneva Conventions prohibit attacks on civilians. And the Geneva Protocol II expressly prohibits "acts of terrorism."

Nevertheless, we have so far treated terrorist as ordinary criminals — charging them with common law crimes, and give them all the protections of our criminal justice system. The 1993 World Trade Center attack, for example, led to indictments that were tried before a judge in the Southern District of New York.

Granted, Congress has not declared war in authorizing President Bush "to use all necessary and appropriate force against" those involved with "the terrorist attacks that occurred on September 11, 2001." But it would trivialize what was done to treat it as ordinary crime.

Using military tribunals, rather than the criminal justice system, to bring such terrorists to justice merits serious consideration at both ends of Pennsylvania Avenue.

Crona and Richardson point out that for this type of crime, military tribunals, which are composed of a panel of trained military officers who serve as jury and judge, have many practical advantages over our criminal justice system, which was never designed to deal with war crimes or crimes against humanity. Such tribunals are more efficient, less costly, and more likely to provide swift and sure justice.

As examples, they cite the two criminal trials of the terrorists indicted in the 1993 bombing of the World Trade Center. The first trial required five months of testimony, 207 witnesses, and 1,003 exhibits — not to mention many days of legal arguments and four days of jury deliberations. The second trial, involving the remaining defendants, required over eight months, 200 witnesses, and hundreds of exhibits.

Most troublingly, however, such criminal trials placed the lives of the American citizens who serve as jurors, and their families, in jeopardy of harm from other terrorists. While jurors are purportedly anonymous, in fact they could easily end up living in fear, which would not be unfounded. Witnesses in such cases are, if necessary, placed in the federal witness protection program.

None of these problems exist with military tribunals. Trials without juries are always more efficient. And military officers have accepted the risk of personal harm as a concomitant of their work.

Our criminal justice system, which requires a unanimous finding of guilt beyond a reasonable doubt by twelve jurors, Crona and Richardson note, "is designed to err on the side of letting the guilty go free rather than convicting the innocent. However, when this nation is faced with terrorist attacks that inflict mass murder or hundreds of millions of dollars of damage in a single instance, we can no longer afford procedures that err so heavily on the side of freeing the guilty. Protection of society and the lives of thousands of potential victims becomes paramount."

Based on historical evidence, Crona and Richardson argue that using such a military proceeding does not mean stacking the deck against terrorists. To the contrary, they note that the WW II war crimes trials with military tribunals resulted in many acquittals, and point out that for the 177 Nazi officials tried by American military judges, the tribunals issued only 12 death sentences.

In a military tribunal, rules of evidence are not applicable, nor necessary, because trained military jurists can, like other judges, weigh all the evidence. Exclusionary rules, which preclude using evidence improperly obtained (a means for our courts to police the police), have no place in a military proceeding. Thus, before a military tribunal, a known terrorist could not walk because of a legal technicality, such as the arresting officer's failure to give him a Miranda warning.

"The primary purpose of any adjudicative proceeding where a person is accused of a crime," Crona and Richardson write, "is to find the truth as to that person's factual guilt or innocence. The search for the truth in the terrorism arena will be enhanced by the military commission framework." But these authors, and other proponents of military tribunals, are not suggesting that the accused terrorists be denied due process. To the contrary.

Crona and Richardson write: "The pre-eminent question with due process always is, given the circumstances, what is due process?" They believe that military tribunals "provide the process due to those accused of committing terrorist war crimes." They would have the right to counsel, to confront witnesses, dispute evidence, and present evidence in their defense. These authors are merely saying that in times of war, such military proceedings are fair and just.

Those accused of terrorist activities are due no more. If it is necessary to draw a bright line to protect American citizens, the authors suggest (but do not recommend) limiting the jurisdiction of military tribunals to alien terrorists.

The last chapter of Chief Justice Rehnquist's book on civil liberties in wartime is entitled "Inter Arma Silent Leges." According to Black's Law Dictionary, this means, "in times of war the laws are silent." Rehnquist observes that "there remains a sense that there is some truth to [this] maxim." He explains why.

Rehnquist says it is a simple "truism: in time of war the government's authority to restrict civil liberty is greater than in peacetime. … Quite apart from the added authority that the law itself may give the President in time of war, Presidents may act in ways that push their legal authority to its outer limits, if not beyond."

He adds that because judges are often loath to interfere with wartime activities, they often defer decisions until hostilities end. "If the decision is made after hostilities have ceased, it is more likely to favor civil liberty than if made while hostilities continue." To illustrate his point, he contrasts the pro-tribunal Quirin ruling, which was decided at the height of WW II, and the anti-tribunal Milligan holding, which was made after the Civil War had ended.

In short, the Chief Justice tells us that terrorists — like others — will not enjoy the same civil liberties during a war as in peace. Rehnquist concludes that while the laws are not silent in time of war, "they will speak with a somewhat different voice."

In this war, a new law should be passed — a law authorizing the use of military tribunals for suspected terrorists. If many terrorists are involved — as now appears the case — it is difficult to conceive of a more appropriate procedure to bring them to justice.

The very idea of a military tribunal is something that Hitler would have done, IMO. As well, it proves once again to the world that our government is run by a bunch of hypocrites. Finally, it's simply a bad precedent.

One should ask why would a military tribunal be necessary at all?. Is the government's case that weak that it would be unable to pass the scrutiny of our system of Justice?, or is this just another attempt to undermine the Constitution?.

Other that that, I'm still waiting for some of the government's evidence as to exactly who perpetrated the events of 9/11.

---max

As the posted article pointed out the precedent has already been set. By Abraham Lincoln. By Franklin Delano Roosevelt.

One should ask why would a military tribunal be necessary at all?. Is the government's case that weak that it would be unable to pass the scrutiny of our system of Justice?

You were around for the O.J. Trial, weren't you?

In addition, do you want civilian juries being threatened with death to themselves and their families if they convict a terrorist? These terrorists have committed acts of war. The military has volunteered to risk their lives to protect this country in times of war. A civilian picked out of a jury pool has not.

Other that that, I'm still waiting for some of the government's evidence as to exactly who perpetrated the events of 9/11

Such evidence is procured by intelligence sources that are put at risk when those sources are exposed to the entire world via CNN.

As the posted article pointed out the precedent has already been set. By Abraham Lincoln. By Franklin Delano Roosevelt.

Neither of these presidents created military tribunals. Congress did.

Lincoln DOES have some similarity with Bush in one respect: Like Bush, he did away with Habeas Corpus. However, if you will find that the U.S. Supreme Court declared Lincoln's actions unconstitutional and illegal in the 1856 case of Merryman.

You are correct that there is precedent. However, the precedent states that Bush's EO is a flagrant violation of the Constitution.

We are already having a judicial crisis. Here is an exerpt I found in an article addressing this situation:

...Today there are more than 100 VACANCIES in the federal courts ... and more conservative judges are retiring.

Nearly half of all active judges today were appointed by former President Bill Clinton - and we know how too many of them feel about religious freedoms!

Incredibly, President George W. Bush can't get hearings for most of his nominees! (Even though former President Bill Clinton had many of his judges confirmed in his first year of presidency.)

The Senate has never taken this long - only 17 of 64 nominations have been confirmed this year! And these are candidates rated by the American Bar Association as "qualified" or "well qualified."

These competent men and women with high principles will affirm our freedoms of speech and religion. But that's the problem. The ACLU and others want to keep these judges off the bench!

* They attack those who are against crime and pornography.
* They oppose anyone who doesn't share their ideology.
* They would have a nominee automatically disqualified because of religious convictions!
And the battle over the first vacancy on the Supreme Court of the United States looms ahead, while these groups work at full speed for their anti-freedom agenda...

The leftist socialists who have overtaken the Democratic Party and who are very effectively pressuring our government into socialism are blocking Bush from filling the judicial vacancies.

Everyone interested in freedom should pressure the Bush Administration to get off their dead asses and show some fortitude by making 100 recess appointments during the Christmas break to fill these vacancies and send an unmistakable message to these social-crats that we're not going to let them wreck this country any longer. This is what bothers me about Bush. While he is at it he could also clear the socialist dead wood who inhabit the State Dept appointed jobs.

Yes, the Patriot Act bothers me too. Just the name of it scares me, however, I am still in favor of a military tribunal for Middle Eastern connected terrorists both foreign and those in this country illegally. If this procedure shows any sign of being exploited against our own liberties I would expect all of us to take a major stand against those responsible.

"That's also a very good question: Would these new courts be subject to review by the Supreme Court? And what about the right of appeal?"

The EO directed SecDef to develop rules and regulations for the conduct of the tribunals to include post trial procedures. These have not been published at this time.

I expect these rules and regulations to follow established procedures similar to those found in the UCMJ simply because those tasked with developing these rules will be military lawyers. They will not cut from new cloth but will look for established rules and procedures they are familiar with and that have stood the test of time and constitutional scrutiny. In any event, these rules and regulations will have to published, just as the EO was published. Until that time, it is unwise to claim these procedures will violate any one's rights.

You might wish to review the UCMJ. It is available on line. Here is one location:

http://www.constitution.org/mil/ucmj19970615.htm#IX

If you're interested in the appeals process, look in the section entitled post trial procedures. You'll find that several courts of review and appeal are available. The "Court of Military Review", the "Court Of Military Appeals", and USSC, in that order. These courts are in addition to the mandatory review of all courts martials and tribunals by the convening authority. IOW, there are up to four levels of review and appeal.

"Constitutional Rights are only guaranteed to citizen owners of the USA.

It is about time we understood that..."

Please state the basis of your opinion that the Bill of Rights of the Constitution does not apply to all persons present in the United States, citizen and non-citizen alkike. I believe that it does apply to both citizens and non-citizens, including illegal aliens.

We try non-citizens all the time in criminal courts, observing all Constitutional safeguards. Why we would do this if they have no Constitutional rights.

If you can cite any case law on this subject, I would be pleased to read it. Maybe when people who make such a starling statement as you have made would go to the trouble of supporting it, will be the time that we understand what you are saying to be true.

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