Military tribunals (Scripps Howard News Service) December 5, 2001

To read the headlines, you would think President Bush, in proposing military tribunals to try non-citizen terrorists, was planning to cancel the Constitution and lay off the Supreme Court. Both the New York Times and Washington Post were outraged. Senators, comparing the plan to justice in a Third World republic, scheduled Attorney General Ashcroft for hearings this week, while 39 congressional members signed a strongly worded letter of opposition.

Fortunately the American people tend to be more sensible than the media and legislative elites. In a recent ABC News/Washington Post Pool, 59 percent of Americans supported the use of military tribunals, and the number increased to 64 percent when it was disclosed to participants that President Bush favored the measure. Remarkably, this support held broadly across political lines, from 52 percent of liberals to 58 percent of moderates and 66 percent of conservatives.

Though you’d never know it from the public debate, military tribunals do not raise a question of justice versus injustice. To the contrary, military tribunals constitute one among many legitimate forms of justice that might be used in particular circumstances. The real question is what form of justice is appropriate for trying non-U.S. citizens accused of terrorist attacks. When you consider the three primary judicial approaches available for such difficult work, you begin to see military tribunals in a different light.

One option – though not, as many assume, the only one — would be to try the terrorists in ordinary American courts. Of course geography presents one set of challenges. Would we establish the U.S. District Court for Afghanistan, or example, or bring the terrorists to America for trial? The sheer scale of the matter is another problem. How could already crowded U.S. courts take on thousands of new cases at one time? Then, too, there are the niceties of American criminal procedure, which do not seem well suited to war and terrorism. When we enter a Taliban cave, should we warn all present that anything they say will be used against them in court, and that they are entitled to have an attorney present? Just think of the marshals, prosecutors, judges and jurors whose lives would be at risk, perhaps forever, in carrying out such trials.

Another choice would be the creation of an international criminal tribunal, as has been done in Yugoslavia and Rwanda. Unfortunately the history of these tribunals is mixed at best. Even the formation and staffing of such a court is subject to the vagaries of international politics and, in operation, their results have been limited and very expensive. In Yugoslavia and Rwanda, over a half-billion dollars has been spent to indict some 150 individuals through painfully slow processes. Ironically, international criminal courts, often supported by American media and political elites, do not provide many of the civil liberties that concern them about military tribunals.

Which brings us to military tribunals, an option the president has created by executive order. These have been used from the Civil War through World War II, and are designed to provide justice under the difficult circumstances of war. They allow for expedited and private proceedings before three military judges. These courts provide many safeguards for the defendants, but certain protections, such as the hearsay rule, or a public trial, are not guaranteed. Most of the protections not used are really designed to guide the way U.S. law enforcement officials gather evidence, which is not a concern in war. If military tribunals have been used effectively in the past, what is all the hue and cry about? To some degree it is about short memory and a generation of leaders that has not experienced the exigencies of war. It is also about the shadowy nature of war on terrorism and how you bring it to a close. And, yes, the shouting is also about politics, when many in Congress peeved that the president did not consult them prior to issuing his executive oder.

In the end, Chief Justice William Rehnquist was right when, in his book on wartime civil liberties, he wrote: “In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts in favor … of the government’s ability to deal with conditions that threaten the national well-being.”

Military tribunals are a legitimate means of achieving that task and they would provide all the justice the terrorists deserve, and then some.