October 15, 2004 | Volume 1, Issue 2
Military Tribunals
Introduction
On November 13, 2001, President George W. Bush issued an executive order authorizing the use of military tribunals to try foreigners suspected of terrorism. This action was conceived as part of the response to the 9/11 terrorist attacks. It came a matter of weeks after the United States commenced military action in Afghanistan to oust the Taliban regime that provided haven to Osama bin Laden and the al-Qaeda terrorist network. After receiving harsh criticism from human rights groups and foreign governments as well as from bipartisan sources at home, the guidelines for such tribunals were revised in March 2002. In spite of these revisions, the use of military tribunals as presently formulated to try suspected terrorists falls short of national and international standards of justice, and as such, threatens our credibility and security.
I will demonstrate that military tribunals are not a new post-9/11 phenomenon in this country. In fact, the United States has resorted to the use of military tribunals on a number of occasions dating back to its founding as a nation. What distinguishes these current tribunals is the breadth of the scope of their jurisdiction. In fact, the language in the executive order authorizing their use is so vague that it could be construed as to allow for indefinite detention of suspects. This is one of many due process concerns that are contained in the guidelines for the tribunals at issue. I will compare these tribunals with the civilian court system, which is what most people are familiar with, in order to highlight the extreme nature of what is being proposed. I will also compare and contrast the arguments of those who favor the use of these military tribunals as presently formulated and those who are in opposition. I will then demonstrate that there are acceptable alternatives to the proposed military tribunals that would sufficiently fulfill their purpose and address the concerns raised by its critics.
The History of Military Tribunals in the United States
A military tribunal is “a special court run by the military, not the civilian judiciary, and convened to adjudicate extraordinary cases, usually involving foreigners and usually during wartime.”1 The concept of the military tribunal is not a new one in this country. In fact, some legal scholars identify 1780 as the date of the first tribunal held in the United States.2 This occurred when a British secret agent, John André, was tried and convicted of collaborating with Benedict Arnold in his plot to surrender the strategic American fortification at West Point to the British.3 A board of officers designated by General George Washington found André guilty of spying and condemned him to death. Other scholars maintain that the first official proceeding of a military tribunal in this country was in 1847 during the U.S-Mexican War when General Winfield Scott sought a means to try enemy civilians for criminal offenses against U.S. soldiers.4
President Abraham Lincoln instituted military tribunals during the Civil War, and during that time, some four thousand U.S. citizens were tried on charges ranging from disloyalty to clearly non-military offenses, such as liquor trafficking. One such individual was Lambdin P. Milligan, who was charged with a variety of offenses including conspiracy against the U.S. government, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war. The U.S. Supreme Court determined that a military tribunal was not the competent venue to try Milligan, since he was a citizen of the United States who was not connected with military service. Further, he was not a resident of any of the states in the rebellion and he was not captured while participating in hostile acts against the government. Ultimately, the Supreme Court held that military tribunals should have no jurisdiction over U.S. citizens when the civilian courts are still working.5 In writing the majority opinion, Justice David Davis stated that:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchism or Despotism.[6] [Emphasis added]
Prior to the present war on terror, the last time that the U.S. government convened a military tribunal was during World War II, when President Franklin Delano Roosevelt authorized the use of military tribunals to try German marines who had sneaked ashore in New York and Florida and were planning to sabotage U.S. military facilities. Six of the eight defendants were executed on the day of their convictions.7 The Supreme Court deemed this tribunal constitutional, ruling that foreign combatants charged with war crimes inside the United States do not enjoy constitutional guarantees.8 This case has been cited repeatedly by the Bush administration as a precedent for today’s proposed military tribunals.
On February 24, 2004, Ibrahim Ahmed Mahmoud al Qosi of Sudan and Ali Hamza Ahmed Sulayman al Bahlul of Yemen became the first two individuals to be designated for trial in a military tribunal in this country since World War II.9 They are among the more than six hundred foreign prisoners that have been held at the prison camp in Guantánamo Bay, Cuba, since shortly after military action commenced in Afghanistan in the fall of 2001. According to the indictments, both spent time in terrorist training camps and had served as bodyguards for Osama bin Laden.10 The indictments do not indicate when the tribunals will take place although they are expected to be held at Guantánamo Bay. It should be noted that the indictments contained no documentation for government claims that they were terrorist conspirators.11 On July 7, 2004, the Pentagon announced that President Bush has designated nine additional Guantánamo Bay prisoners as subject to military tribunals, bringing the total as of this date to fifteen.12 Only three, al Qosi, al Bahlul, and David Hicks of Australia, have been identified and charged.13
Who Would Be Subject to These Tribunals?
Essentially, any non-U.S. citizen who the government alleges is a terrorist or an accomplice to terrorism would be subject to a military tribunal. According to President Bush’s executive order, the military tribunals would apply to any foreign individual who is a member of al-Qaeda, has engaged in or aided acts of terrorism against the United States, or has “knowingly harbored” such a person.14 It also states that jurisdiction may be had over an individual when “it is in the interest of the United States that such individual be subject to this order.”15 Further, the order also provides that these individuals be tried for commissions of the laws of war and “other applicable laws,”16 which is an extraordinarily broad and open-ended declaration.
The language contained in the executive order also allows for indefinite detentions. According to the order, once the president designates persons falling into any of the above categories, the secretary of defense is then required to detain that person.17 “The order goes on to say that ‘if’ that person is tried, they are to be tried by a military tribunal. However, it does not say they must be tried.”18 As such, an individual could be held forever with no review required concerning their detention. Theoretically, this could be the case even if an individual is found not guilty by a military tribunal.
Military Tribunals vs. Civilian Courts
There are a number of differences between military tribunals and the United States’ civilian court system.19 One key distinction is that military tribunals are not bound by the procedures followed in the civilian courts, which derive from rights guaranteed in the Constitution. Legally, military tribunals are not courts; rather, they are classified as military commissions, which is why different standards apply.
According to Defense Department guidelines, military tribunals for foreigners suspected of terrorism will contain the following characteristics:
- Make use of juries comprised of three to seven panelists, all of who will be military officers. This is as opposed to the typically twelve-member public panels that are used in federal criminal courts.
- Criminal convictions in the federal courts must be unanimous, while the administration’s proposed military tribunals would be able to convict by a two-thirds majority, except in cases where the death penalty is involved, in which case the panelists must reach a unanimous decision.
- Different rules of evidence apply, with lower standards for admission in military tribunals. For example, secondhand evidence and hearsay, which are generally banned from traditional courts (though many exceptions do exist) are admissible, so long as it would have probative value to a reasonable person. In other words, if a reasonable person would expect it to be true, evidence based on hearsay is admissible.
- Prosecutors are not required to establish the “chain of custody” of evidence â that is, to account for how the evidence was transported and who had custody of it from the time it was found to the time it reached the courtroom.
- Defendants will be provided with military lawyers, but if representation by a civilian attorney is desired they must obtain one at their own expense.
- Defendants are not guaranteed the right to appeal against convictions in military tribunals. They are not allowed to appeal decisions in federal courts, but instead may petition a panel of review, which may include civilians as well as military officers, to review decisions. The president, as commander in chief, will have final review.
- Civilian trials must be open to the public, while military tribunals can be held in secret.20
These tribunals do provide some protections that are similar to civilian courts including: allowing defendants to review the evidence against them, making most sessions public, and requiring that jurors convict only when the case is proved beyond a reasonable doubt.21 Under the revised provisions, the news media will have limited access; reporters will be allowed into the courtrooms, but television cameras will not be permitted.22 Reporters will, however, be excluded when classified information is discussed. Further, military judges for each trial will have wide discretion in setting up the commissions to meet any security concerns. For example, the identities of some panel members and some details of the court proceedings may be kept from the public.23
It should also be noted that a military tribunal differs from a court martial. A court martial is used by the military to try U.S. soldiers for crimes. A court martial makes use of rules of evidence that are similar to those of civilian courts, are almost always open to civilian observers, and allow for appeals.24 As such, a court martial more closely resembles the civilian court system than a military tribunal.
The Arguments for Military Tribunals
White House officials have stated that military tribunals will let the government try suspected terrorists quickly, efficiently, and without jeopardizing public safety, classified information, or intelligence-gathering methods and operations.25 They claim that tribunals would protect American jurors, judges and witnesses from the potential dangers of trying accused terrorists. According to some administration officials, the government is reluctant to try captured terrorists â especially leaders of the Taliban and the al-Qaeda terrorist network â in conventional courts, where their trials and appeals could take years and turn into spectacles.26 In December 2001 congressional testimony, Attorney General John Ashcroft echoed these sentiments when he asked: “Are we supposed to read [alleged terrorists] their Miranda rights, hire a flamboyant defense lawyer, bring them back to the U.S. to create a new cable network of Osama TV or what have you?”27 It should be noted that, as indicated earlier, under the March 2002 guidelines press coverage of most tribunal proceedings will be permitted, although cameras will be banned from the courtroom.
Defenders of military tribunals argue that the United States is at war with terrorists, and that in times of war enemy, aliens are never afforded the protections of the United States’ legal system. They point out that enemies have been tried by military courts dating back to before the founding of the United States, and that the practice continued through World War II. Advocates of military tribunals also argue that the United States is not carrying out a law enforcement operation, but a military one. As such, they posit that for the armed forces to seize an enemy and turn him over to the civilian court system would be unprecedented and absurd. They argue that history shows that military tribunals can act fairly, as in the case of the Hunter Commission, the tribunal that convicted the conspirators behind the assassination of President Abraham Lincoln. They also assert that secret trials can be justified by the need to protect the intelligence sources that may provide prosecution evidence.28
Tribunal defenders argue that the composition of a panel of trained military officers who serve as jury and judge have many practical advantages over our criminal justice system, which they claim was never designed to deal with war crimes or crimes against humanity.29 They also believe that such criminal trials place the lives of the American citizens, who serve as jurors, and the lives of their families, at risk of harm from other terrorists. Further, advocates state that our criminal justice system is designed to err on the side of letting the guilty go free rather than convicting the innocent. However, they claim that, “when this nation is faced with terrorist attacks that inflict mass murder or hundreds of millions of dollars in 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.”30 They argue that the president needs broad discretionary power to fight the war on terror. As such, they maintain that these tribunals will provide swift and sure justice.
The Arguments Against Military Tribunals
Critics of the Bush administration’s proposed tribunals charge that the real purpose of these tribunals is not to adjudicate, but to intimidate, elicit information, induce pleas, and legitimate punishments against persons already identified as guilty by the president.31 They argue that it is wrong to deny basic constitutional protections to those who are in our custody, and that doing so will ensure that someday our citizens, when imprisoned abroad, will be denied similar protections by a foreign government.32 As presently formulated, the guidelines make it extremely difficult to render effective assistance of counsel as recognized by the Constitution.
Some legal experts argue that President Bush does not have the authority to establish such tribunals. They point out that the Lincoln- and Roosevelt-era military tribunals took place in a time of war, but Congress has not officially declared war at present, so the president can not assume wartime powers.
Critics also assert that secret trials are bad public relations for the United States because the outcome of such proceedings will enjoy none of the legitimacy of results reached in normal civilian trials.33 Further, rather than being stigmatized as terrorists, such defendants may be seen as political prisoners—victims, not perpetrators of crime. Some European countries, including Spain, have made it clear that they will not extradite suspects to the United States unless they have a guarantee that the defendants will not face a military tribunal because of what they view as their suspect procedures. As such, opponents argue that the United States’ credibility as a world leader is threatened.
It should also be noted that the United States has itself condemned the use of military tribunals to try its citizens in other countries, such as that of Lori Berenson, who was convicted of aiding terrorists in Peru in 1996. In fact, the State Department has condemned the use of secret military tribunals in many other countries, including Burma, China, Colombia, Egypt, Malaysia, Russia and Turkey, precisely because they were seen to violate defendants’ rights.34
Contrary to the assertions made by some of the tribunals’ staunchest defenders that the civilian court system was not designed to deal with terrorists, the U.S. government has, in fact, successfully prosecuted terrorists in the civilian courts in the past. One does not need to delve too far back into history to note that the perpetrators of the 1993 World Trade Center bombing, the 1995 Oklahoma City bombing, the conspirators in a failed plot involving New York City tunnels, as well as those responsible for the 1998 bombings of the U.S. embassies in Kenya and Tanzania, were all tried and convicted in civilian courts. Partly in response to the initial outcry over military tribunals, the Justice Department opted to use the federal courts to try Zacarias Moussaoui, a French civilian, who was the first person charged in the 9/11 conspiracy.35
Alternatives to Military Tribunals
Aside from modifying the procedures of the proposed military tribunals to be more in line with universally accepted due process protections, there are two alternatives to military tribunals that are superior, in terms of ensuring a fair trial, and in demonstrating to doubters, particularly those in the Muslim world, that those convicted are guilty. The United States could establish an international court through the United Nations, much like the International Court for the Former Yugoslavia and the International Court for Rwanda. This would internationalize the trials so that it would be not just the United States, but theoretically, all the countries of the world, against the terrorists.36 The second alternative would be the International Criminal Court in The Hague. While the United States has longstanding issues with the International Criminal Court, the benefit from either one of these alternatives are that they have established procedures that would ensure, especially in the eyes of the world, a more fair trail than that provided by the guidelines for the administration’s tribunals. By exploring these alternatives, the U.S. would be able to restore some of its credibility around the world.
The war on terror is one that cannot be won without international cooperation. As indicated earlier, the rift with many of our allies that has been exacerbated by the debate over military tribunals has prompted some nations to take the stance that they will not hand over suspected terrorists to the U.S. unless their due process concerns are addressed. It is hard to see how national security benefits from military tribunals if even our allies are hesitant to cooperate with us. As such, when it comes to the war on terror, our credibility is directly tied to our security.
Conclusion
On June 28, 2004, the U.S. Supreme Court dealt a major setback to the Bush administration’s anti-terrorism tactics.37 In rulings on three cases dealing with the rights of prisoners, the Court refused to endorse the administration’s claim of authority to seize and detain terrorism suspects and indefinitely deny both U.S. and non-U.S. citizens access to courts or attorneys while interrogating them.38 The Court determined that “detainees, whether potential terrorist threats or victims of circumstance, have greater rights to challenge their captivity in U.S. courts and force the government to explain itself.”39 In a case involving Louisiana-born detainee Yaser Esam Hamdi, Justice Sandra Day O’Connor wrote on behalf of a 6–3 majority that, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”40 The Supreme Court declined to rule on the merits of the case of Jose Padilla, a U.S.-born “enemy combatant,” who is accused of plotting to detonate a radioactive “dirty bomb” in the United States. Padilla was arrested at O’Hare International Airport in Chicago on a May 2002 flight from Pakistan. The issue in this particular case is whether U.S. citizens who have been arrested on American soil can be held incommunicado without charges. This case has been sent back to a lower court for review on a technicality.
It was established in Ex Parte Quirin (1942) that foreign combatants charged with war crimes inside this country are not necessarily subject to jurisdiction under the civilian court system. However, the guidelines promulgated by the Bush administration for the particular military tribunals at issue are troubling and come dangerously close to fulfilling the fears of Justice David Davis nearly one hundred fifty years ago, that misuse of the military tribunal system runs the risk of despotism. In addition, I believe that, as presently formulated, the proposed military tribunals to try suspected terrorists will further contribute to the erosion of our ability to successfully prosecute the war on terror. Reasonable alternatives exist that would dispense the justice that the Bush administration claims it is interested in pursuing and would be of benefit to our long-term interests in the war on terror. Therefore, for the sake of both the credibility and the security of the United States, and in light of the recent Supreme Court decisions, the administration would be wise to reconsider this course of action.
1 Council on Foreign Relations, Terrorism: Questions & Answers: Military
Tribunals, http://www.terrorismanswers.org/responses/tribunals.html.
2 CNN.com (2001, December 6). Key tribunals. http://www.cnn.com/2001/LAW/12/06/ inv.tribunals.timeline/index.html.
3 John André, The Library of Congress, American Memory: Historical Collections for the National Digital Library. http://memory.loc.gov/ammem/bdsds/andre.html.
4 CNN.com (2001, December 6). Key tribunals.
5 Ex Parte Milligan, 71 U.S. 2 (4 Wall.) (1866).
6 Ibid.
7 CNN.com (2001, December 6). Key tribunals.
8 Ex Parte Quirin, 317 US 1 (1942).
9 CNN.com (2004, February 24), U.S. charges alleged bin Laden aides with war crimes. http://www.cnn.com/2004/LAW/02/24/military.tribunals.ap/index.html.
10 Ibid.
11 Ibid.
12 CNN.com (2004, July 7), U.S. designates more detainees for tribunals. http://www.cnn.com/2004/LAW/07/07/guantanamo.tribunals.ap/index.html.
13 Ibid.
14 Public Law 107–40, 115 Stat. 224. http://www.whitehouse.gov/news/releases/ 2001/11/20011113–27.html.
15 Ibid.
16 Ibid.
17 Ratner, Michael, Moving Away From the Rule of Law: Military Tribunals, Executive Detentions and Torture, 24 Cardozo Law Review 1513, 1517 (2003).
18 Ibid.
19 Greene, Richard Allen, BBC News Online (2003, March 4). Analysis: Military tribunals. http://news.bbc.co.uk/1/hi/world/ americas/1701789.stm.
20 Council of Foreign Relations, Terrorism: Questions & Answers: Military Tribunals.
21 Ibid.
22 CNN.com (2002, March 18). Rumsfeld to unveil plans for military tribunals. http://www.cnn.com/2002/US/03/18/ret.military.commissions/index.html.
23 Council on Foreign Relations, Terrorism: Questions & Answers: Military Tribunals.
24 Ibid.
25 Ibid.
26 Ibid.
27 Ibid.
28 Ibid.
29 Dean, John, Appropriate Justice for Terrorists: Using Military Tribunals
Rather Than Criminal Courts, Findlaw.com
(http://writ.corporate.findlaw.com/dean/20010928.html).
30 Ibid.
31 Grossman, Joel B., Careless with the Constitution? The Problem With Military
Tribunals, Findlaw.com (http://writ.news.findlaw.com/commentary/20011129_grossman. html).
32 Chander, Anupam, Guantanamo and the Rule of Law: Why We Should Not Use
Guantanamo Bay to Avoid the Constitution, Findlaw.com (http://writ.news.findlaw.com/ commentary/20020307_chander.html).
33 Ibid. (citing Human rights lawyer Joanne Mariner.)
34 Council of Foreign Relations, Terrorism: Questions & Answers: Military Tribunals.
35 Ibid.
36 Ratner, Michael, Military Tribunals or Civil Courts: Violations of the Laws of War or Criminal Acts?, PBS.com (http://www.pbs.org/wnet/justice/world_issues_mil.html).
37 CNN.com (2004, June 29) White House studies terror rulings. http://www.cnn.com/2004/LAW/06/29/scotus.enemy.combatant.ap/index.html.
38 Ibid.
39 Ibid.
40 Hamdi v. Rumsfeld, 542 U.S. ___ (2004).