Having Their Day in (a Military) Court
How best to prosecute terrorists.
By Robert H. Bork, an NR Contributing Editor
From the December 17, 2001, issue, of National Review
The debate over the president's order creating military tribunals to try
suspected terrorists consists largely of warring slogans and overripe
rhetoric: "shredding our Constitution," "seizing dictatorial power," etc.,
on the one hand, and some version of "the bastards don't deserve any better"
on the other. Analysis is in short supply. The issue of the balance between
security and civil liberties will be with us, in various guises, for a long
time to come. The reality we face means that no resolution of such issues
will be wholly satisfactory.
When the issue is trying terrorists, there appear to be only four options:
trial in a federal court; trial before an international tribunal; trial
before a military tribunal; or setting the captives free. No body this side
of a psychiatric ward will choose the last option. But the first and second
don't win any prizes either.
Trials in federal courts have features that make them totally inappropriate
for the trial of terrorists. Jurors often respond to emotional appeals, and,
in any event, would have good reason to fear for their and their families'
safety if they convicted. Criminal trials have been adorned by judges with a
full panoply of procedural hurdles that guarantee a trial of many months.
Appeals and petitions for habeas corpus can take years, and should the death
sentence be given, the ACLU has shown how to delay execution for ten years
or more through appeals followed by one habeas corpus petition after
another. An open trial and proceedings of that length, covered by
television, would be an ideal stage for an Osama bin Laden to spread his
propaganda to all the Muslims in the world. Many Islamic governments would
likely find that aroused mobs make it impossible to continue cooperating
with the U.S.
The conclusive argument, however, is that in open trials our government
would inevitably have to reveal much of our intelligence information, and
about the means by which it is gathered. Charles Krauthammer notes that in
the trial of the bombers of our embassies in Africa, the prosecution had to
reveal that Amer ican intelligence intercepted bin Laden's satellite phone
calls: "As soon as that testimony was published, Osama stopped using the
satellite system and went silent. We lost him. Until Sept. 11." Disclosures
in open court would inform not only Middle Eastern terrorists but all the
intelligence services of the world of our methods and sources.
Trials before an international tribunal would have all of these defects and
more. Picking the members of the court would itself be a diplomatic
nightmare. It would be politically impossible to keep judges from Islamic
countries off the court. In the past, moreover, international courts have
often shown a pronounced anti-American bias. Our prosecutor would be
helpless to avoid a propaganda circus and the disclosure of our intelligence
capabilities and methods. In the end, convictions would be highly uncertain,
but, if obtained, impassioned dissents and the martyrdom of the terrorists
would be certain. We should be wary of international tribunals in any event
since their establishment seems part of a more general move to erode U.S.
sovereignty by subjecting our actions to control by other nations.
Military tribunals avoid or at least mitigate these problems. Propaganda by
televised speeches would be impossible and any required disclosure of
intelligence methods and successes would be secret. Since trials could move
far more efficiently and appeals are cut off by the president's order,
punishment of the guilty would be prompt. One of the prices we pay for an
all-volunteer military is that for most Americans their armed forces are an
unknown world about which it is possible to imagine all sorts of evils; but
military tribunals are not, as they have been called, "kangaroo courts" or
"drumhead tribunals." Much of the public is probably frightened by visions
of defendants convicted out of hand and bustled off to firing squads.
During the Korean War, the officers in my battalion took turns prosecuting
and defending. (I had a notable lack of success in both roles.) I sat on the
court, and never saw an innocent man convicted but did see a guilty man
acquitted. (I prosecuted that one and it still rankles.) Even then, before
the widespread reform of the military justice system, military courts manned
by officers, in my opinion and that of many others, were superior to the run
of civilian courts, more scrupulous in examining the evidence and following
the plain import of the law. If I were guilty, I would prefer a civilian
jury; if innocent, a military court.
These virtues would be irrelevant if military tribunals were of dubious
constitutionality. They are not. The constitutional issue reached the
Supreme Court in Ex parte Quirin (1942). German saboteurs had entered the
United States illegally to destroy war industries and facilities. Arrested
by the FBI before they could act, they sought to file for writs of habeas
corpus, contending they had a right to trial before regular courts rather
than a military commission. The presidential proclamation establishing the
commission denied them access to those courts.
The Court denied the petition, judging it irrelevant that one of the
defendants might be an American citizen. In its decision, the Court made
clear the separate constitutional tracks of the two forms of justice:
"Presentment by a grand jury and trial by a jury . . . were at the time of
the adoption of the Constitution familiar parts of the machinery for
criminal trials in the civil courts. But they were procedures unknown to
military tribunals which are not courts in the sense of the Judiciary
Articles" of the Constitution. Consistent with that understanding, military
tribunals have been used by several presidents in time of war. In the
Revolutionary War, before there was a Constitution, George Washington
employed such tribunals freely, as did Abraham Lincoln in the Civil War, and
Franklin Roosevelt in World War II. We remember the Nuremberg trial, with
many of the trappings of a civilian court, as an attempt (failed in my view)
to establish an international rule of law in open proceedings. That trial is
not a model for the problem we face now. There were, of course, no problems
of intelligence disclosures, but, more important, the open trial was not
regarded by the allies as the only, or in all cases the preferred, method of
proceeding. According to Mark Martins, a respected scholar and military
lawyer, "German regular army soldiers were also defendants in many of the
thousands of military courts and commissions convened by the Allies after
the war in different zones of occupation."
If there is a problem with Bush's order, it is the exemption of U.S.
citizens from trials before military tribunals. Quirin held that Americans
can be tried there, and it is clear that they should. The trial of American
terrorists in criminal court would pose all the problems of trying foreign
terrorists there: The prosecution would have to choose between safeguarding
our intelligence capacity and trying the terrorist. The terrorists could
well go free. Contrary to some heated reactions, military tribunals are well
within our tradition. They are needed now more than ever
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