Posted on 11/10/2001 4:32:01 PM PST by Pokey78
The case for military tribunals.
THE FRENCH-MOROCCAN terrorist Zacarias Moussaoui made a series of suspicion-provoking blunders that landed him in a Minnesota jail in mid August. Otherwise, the 33-year-old Moussaoui would likely have been a "fifth hijacker" on board United Flight 93, which crashed into the Pennsylvania countryside on September 11. The Justice Department hinted last week that it would indict him. With that move, the Bush administration has telegraphed its approach to the terrorists it takes into custody. It will treat them not as a military threat but as a criminal ring to be dealt with in normal criminal trials.
That's a bad thing. Terrorists would be tried in federal court, where criminal trials are public spectacles. Intelligence sources and methods will be endangered by publication of prosecutors' evidence. So the government will have to choose between (a) going to trial without its best evidence, (b) charging only those lesser offenses for which such evidence is unnecessary, and (c) dropping a case altogether. Until we come up with a better way of doing things, we risk watching known terrorist accomplices stonewall prosecutors and get away with a slap on the wrist for visa infractions.
A small measure of protection against intelligence leaks is offered by the Classified Information Procedure Act--but only before a case goes to trial. Once it does, defendants are entitled to see all the government's evidence against them. Defendants who claim a "shared interest" can communicate secretly with one another through their lawyers. They can thereby get their stories straight and share intelligence that will keep accomplices from getting arrested in the first place.
In other words, a criminal-trial strategy will force us to choose between punishing those who have committed mass murder in the past and monitoring those who will do so in the future. Such a system is inappropriate for bringing terrorists to justice. It's also beginning to warp America's military plans. The Washington Times reported last week of a "private consensus in the administration that capturing bin Laden alive would present the government with major problems. They include having to divulge intelligence sources and methods at a trial."
But there is a way out: military commissions. Such tribunals, created by the president and presided over by an officer of the U.S. Armed Forces, sit to determine whether a defendant has violated the laws of war. Military officers represent both the prosecution and the defense. A jury of American soldiers hears the evidence. There is a precedent for military commissions. With the blessing of the Supreme Court, one was set up in 1942 to try German saboteurs. No formal declaration of war would be necessary to establish such tribunals, since they can be empaneled to apply not only the U.S. Code of Military Justice but also the laws of war themselves--under which a collaborator in the September 11 attack would be considered an unlawful belligerent subject to execution.
Beyond that, it is not crystal clear how military commissions would work in a terrorist context. Congressional researchers are now looking into whether commissions can adjudicate the guilt of U.S. citizens acting as fifth-columnists; they are also wondering whether such tribunals can sit outside the United States, to try terrorist leaders caught in Afghanistan or elsewhere. The Justice Department's Office of Legal Counsel has tapped one of its lawyers to research the pros and cons of military commissions.
Political obstacles to such commissions are likely to be more theoretical than real. Whether the president's inherent constitutional authority as commander in chief permits him to call military trials without congressional approval is a question worthy of litigation. But if, as seems likely, Congress would bless such commissions, this nice constitutional question needn't arise.
Some congressional staffers worry about the political impact of a judicial function being carried out by uniformed soldiers rather than robed judges. But there is a political benefit as well: Prosecuting terrorists, and those who actively help them, for murdering noncombatants--rather than for money laundering, or overstaying a visa--will put at center stage, the way no criminal trial can, the ultimate vileness of their deeds.
Jerome M. Marcus, a lawyer in Philadelphia, has worked in the legal adviser's office of the State Department.
Nobody in the fedgov has the cajones to try this, and I hope they don't.
Once the fedgov starts running secret trails, they will use it against every bit of political opposition/difference of political opinion in this country.
Much simpler to kill the terr's in combat.
Gimme a break! There's enough knee-jerk, paranoid, holier-than-thou thinking on this website to write a thousand episodes of X-Files! Federal government has been slinging Tomahawk missiles at bad guys for over a decade now, but I don't see them being used on political opposition in this country!
Extraordinary times require extraordinary measures. Look at what went on in Border States during Civil War.
Just because terr's dropped out of the skies on 9/11, it doesn't mean the content or character of the fedgov has changed.
You still have little tommy daschle, (cover up artist for the FAA otu there) or teddy the no swimmer, or durbin the dumb or the torch.
I am tried of politics as usual and hiding behind the cover of terr's.
We still have people floating around in fedgov, who think their job is to rule and oppress the citizens of the US.
We still have members of the fedgov who blame the US for every ill in the world.
So beware of the fedgov bearing gifts, watch your back pocket, because professional polticians are still theives and liars.
Simple...put judicial robes on the soldiers.
If they would do that and limit the focus of the military tribunal to the Islams, I would be for using a military justice system. Maybe you staff it, as we did at Nuremberg, with civil judicial officers who get special commissions.
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