Doing justice during wartime: Why military tribunals make sense.

Sofaer, Abraham D. ; Williams, Paul R.

ON NOVEMBER 13, 2001, President Bush issued a Military Order authorizing the Department of Defense to create military commissions to try non-citizens who are members of al Qaeda or who have attempted or carried out acts of international terrorism. The promulgation of the order was met with overwhelming public support, but with a stream of criticism from civil libertarians and others concerned with the possible dilution of due process standards. The Military Order has also sparked a lively debate among lawyers and pundits in the op-ed columns of America's newspapers focusing on the legality of the commissions under international law and their actual utility in fighting terrorism.

What has unfortunately been missing from this debate is its proper political context. The question is not whether a military commission is a good or bad thing, but whether any adequate mechanism currently exists for prosecuting prisoners who end up in U.S. custody during the new terror war facing America and its allies. The narrow legalistic debate has failed so far to do justice to the magnitude and nature of the threat of terror war and the policy context for the decision to use military commissions. In this broader context, it becomes clear that current domestic and international mechanisms cannot respond effectively to the needs encountered in the current terror war, but that military commissions, properly used, can do so at least for now. In the longer run, the existing Yugoslav tribunal offers substantial promise as an international terrorism court for particular types of cases. But in the meantime, the need for an effective mechanism is acute, and the military commissions provide one.

Criminals v. enemies

THE CURRENT DEBATE over military commissions is so intense and widespread that it gives inordinate importance to the question of the forum in which terrorists should be tried. In reality, courts, in whatever form, have only a small role in the terror war currently underway. The campaign of terror war directed against the United States can be described as "unconventional warfare conducted by unprivileged combatants with the assistance of criminal co-conspirators designed primarily to terrorize and kill civilians." This campaign has been underway for nearly a decade and will likely continue well into the foreseeable future. The potential use of military tribunals was not intended and should not be seen as an effort to shortcut court procedures ordinarily applicable to individuals charged with crimes. Rather, it was intended as a major shift in policy away from the criminal law model as a means for deterring and preventing terrorism. Until September 11, 2001, when al Qaeda struck American targets, including the World Trade Center (in 1993), President Clinton promised to hunt down those responsible and "bring them to justice." Unfortunately, he meant this literally: He called in the FBI as lead agency, and turned to federal prosecutors as the means for fulfilling his pledge. Naturally, no issue of where to prosecute terrorists arose, because in those few instances when the U.S. was able to arrest a terrorist, criminal trials were the principal means intended to "bring them to justice."

President Bush put all that behind him after the attacks of September 11. He called the attacks "acts of war," and demanded that the Taliban surrender Osama bin Laden and other al Qaeda leaders on pain of being treated the same as they, as "enemies" of the United States. When the Taliban refused, hailing bin Laden as a Muslim "hero," Bush (with Congress's support) attacked Afghanistan with military force and turned to the Department of Defense to lead the campaign. The terror war, long pursued by al Qaeda, was finally confronted as an issue of national security, rather than one of criminal law enforcement.

Taking his cue from this major shift in policy, Attorney General John Ashcroft, along with FBI Director Robert S. Mueller III, issued instructions to their personnel to implement a corresponding shift in focus, away from the investigation of terrorism as crimes and the preparation of criminal cases to the overriding objective of preventing terrorist attacks. (CIA Director George Tenet issued an analogous instruction.) Many of the anti-terrorist measures taken by the attorney general since then -- some deservedly controversial -- are part of this shift in policy designed to prevent terrorist acts through various forms of preemptive action.

It should be no surprise that, among the measures adopted that reflect the shift of policy from criminal law enforcement to military engagement, was the order instructing the Department of Defense, now the lead agency in the nation's effort, to set up military commissions to try terrorist fighters. Viewed as a national security problem, the al Qaeda network and the Taliban fighters constituted a force of some 40,000 to 50,000 men. A successful military engagement was certain to result in the capture and potential trial of hundreds, perhaps thousands, of individuals. The military commission was a mechanism far more suitable to meet this need than the full-blown trials used to prosecute conventional crimes in the federal courts.

The U.S. military rapidly responded to the new policy by engaging in a comprehensive use of force intended to bring about a victory and to end America's vulnerability to al Qaeda. To accomplish this objective, the military developed new doctrines, deployed advanced technological resources, embraced the extensive use of special forces, and selectively relied on assistance offered by our allies without compromising American leadership in the campaign. The intelligence community is also undertaking a critical reassessment of its capabilities and intelligence assets and is retooling to better meet the threat posed by al Qaeda.

Unlike the executive branch departments, the judicial system cannot rapidly retool or evolve to accommodate the new needs of terror war. The American domestic criminal system was designed primarily to protect civil liberties while effectively prosecuting those responsible for murder and other domestic crimes. The system was never intended or designed to perform the judicial roles related to terror war or for that matter to prevent fundamentalist terrorism. The creation of military commissions is thus an effort by the Bush administration to provide a method for trying non-citizen terrorists that corresponds to the shift from fighting terrorism with conventional law enforcement to serious foreign military engagement.

Just as a single cruise missile attack against near-empty training camps constituted ineffective, pinprick engagement, the use of the domestic criminal system to try all terrorist prisoners would amount to ineffective, pinprick justice. The domestic criminal justice system, by itself, is simply unable to serve as an effective tool in dealing with the judicial fallout of terror war. Even the most successful prosecutor of terrorists, U.S. Attorney Mary Jo White, has recognized that, with proper safeguards, military commissions "could be preferable to conventional trials in a time of war," as she told the New York Times.

The reasons for the preference for military commissions are numerous. First, and most important, the acts of terror committed by al Qaeda against civilians are not the types of crimes our domestic system was designed to prosecute; rather, as President Bush characterized them, they are war crimes. Sen. Joseph Lieberman, writing in the Washington Post January 1, put it this way: "The attacks of Sept. 11 were acts of war. Because they were carried out against defenseless civilians by terrorists posing as noncombatants using concealed weapons, the perpetrators were guilty of heinous war crimes, not simple domestic crimes."

Second, the domestic system has proven unable to deter and rarely able even to punish those responsible for terror crimes. In the cases of the Yemen hotel bombing, the attack on the Saudi National Guard, the 1996 Khobar Towers attack, the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the U.S.S. Cole attack in 2000, the U.S. either has been unable to prosecute any responsible party or has prosecuted only a handful of low-level culprits and ideological supporters.

Third, to insist on the application of American constitutional due process standards to terrorist perpetrators of war crimes would limit the U.S. in exercising its national security powers. Evidence subject to exclusion from a trial would not be appropriate to consider, even though the evidence was reliable and established heinous and ongoing behavior. Guilt would have to be established on the basis of such admissible evidence, beyond a reasonable doubt. The need to establish such proof, we are told, led to a catastrophic decision by the Clinton administration. In 1996, Sudan offered to detain and transfer bin Laden to the United States. According to the Washington Post, then-National Security Advisor Sandy Berger declined the offer on the grounds that it would not be possible to try and convict him in an American criminal court. This, despite our having no moral doubt of his involvement in the Yemen hotel bombing, the attack on the National Guard, and the Khobar Towers attack, and despite our awareness of h is determination to engage in future attacks.

Fourth, extensive use of domestic courts may significantly undermine the United States' ability to protect its citizens and to prevent additional attacks. Judges and juries in such cases have historically been at risk from terrorist groups. Under current law, it is not possible to protect intelligence methods and information used against the defendants in court. While federal legislation limits the ability of defense counsel to examine intelligence agency files used to prepare a case, all information used in court, and all methods used to gather it, are open to the public. Even much of the unclassified information presented at trial may be of use to future terrorists -- such as structural diagrams of the World Trade Center and expert testimony as to the size of an airplane necessary to bring down one of the towers.

The limitations of domestic courts in punishing and deterring those responsible for war crimes has apparently led United States officials to attempt to evade their own judicial system. For example, when Berger turned down Sudan's offer for bin Laden, he tried to persuade Saudi Arabia to take him and after a streamlined trial to have him hanged. According to a recent New York Times report, the Clinton administration sought to circumvent the rules of the American judicial system by persuading "friendly intelligence services to arrange the arrest and transfer of al Qaeda members without formal extradition or legal proceedings" to Egypt and other countries to stand trial.

International standards

FOR THE CASES where an American citizen or an individual under protection of the U.S. Constitution is suspected of participation in war crimes against the United States, Congress has the authority to create a special District Court that can be designed so as to protect the defendant's constitutional rights while mitigating some of the concerns expressed above. For suspected war criminals and terrorists not under the protection of the U.S. Constitution -- which to date is every individual detained by the United States in Afghanistan save one -- a military commission or some other judicial mechanism is the most appropriate means for determining their guilt or innocence.

The military commission is able to avoid the shortcomings of the conventional judicial system because it is specifically designed to respond to situations in which the United States finds itself, during or as a result of a military engagement, in physical custody of non-U.S. citizens believed to be members of terrorist networks who have committed terror acts against the United States. The military commission would also be useful in dealing with individuals associated with institutions or governments, such as leading members of the former Taliban government, who aided and abetted those committing or planning terrorist acts against the United States and its allies.

Military commissions are a flexible tool on which the United States can rely to ascertain with relative informality which defendants are in fact responsible for criminal acts and which are not. This flexibility is an important, practical necessity; for example, in addition to the nearly 500 suspects in American custody by January 2002, Afghan forces were holding nearly 3,000 non-Afghan prisoners who may have had some connection to al Qaeda or may have been trained in terrorism. The military commissions also offer an opportunity -- not possible in the domestic context -- to create mixed tribunals involving civilian or military judges from countries such as Afghanistan and Pakistan, which currently exercise custody over the detainees, or from countries such as Saudi Arabia and Kuwait, whose citizens are among the detainees.

Contrary to some contentions, the military commissions can provide a full and fair trial while also protecting sensitive intelligence and other information crucial to further efforts to prevent and deter acts of terrorism and war crimes. The Department of Defense must (and we believe it will) ensure that the military commissions comply with the obligation in the Military Order to provide for a full and fair trial, and to ensure that the purpose of the commissions remains to ascertain the guilt or innocence of those accused of war crimes and terrorism. Given that all of the suspects to be tried by military commission will be foreign nationals, it is appropriate for the United States to look to international standards of justice in formulating procedures. Various sets of international standards exist, but the most practical are those used by the International Criminal Tribunal for Yugoslavia (ICTY). According to the statute and rules of evidence and procedure for the tribunal -- formulated with the participatio n and approval of many nations and the entire U.N. Security Council -- all defendants are entitled to an expeditious, fair, and public trial, the presumption of innocence, the right to defense counsel of their choosing or to have legal assistance provided, the right to examine evidence and witnesses, and the right not to be compelled to testify against oneself or to confess guilt.

International standards of justice, however, are not identical to those found in the U.S. Constitution or in the Federal Rules of Criminal Procedure. In fact, a number of constitutional protections applicable in U.S. criminal cases have been considered unnecessary or undesirable by the international community or have been significantly modified when applied in the international context for the purposes of ascertaining the guilt or innocence of those charged with war crimes. International standards do not bar hearsay, but rather permit the introduction of any relevant evidence which the court deems to have probative value, and there are no Fourth Amendment-style search and seizure restrictions. Trial by jury is not required. Under certain circumstances, witnesses against the accused may testify anonymously (using voice and image-altering technology) or submit their testimony in writing -- thus significantly limiting the defendant's ability to cross-examine witnesses effectively. The prosecution may appeal acqu ittals (during which time the defendants usually remain in custody) and may seek to retry acquitted defendants if new information becomes available which pertains to guilt -- thus exposing such defendants to double jeopardy by U.S. standards. A defendant may even be subject to a form of mini-trial in absentia when the prosecutor, unable to secure his presence, presents the evidence against the defendant in a public hearing for the purpose of reconfirming the indictment.

International standards also provide for the strict protection of confidential and classified information as well as intelligence sources and methods. For instance, if the ICTY prosecutor is in possession of information obtained on a confidential basis, and which has been used solely for the purpose of generating new evidence, that initial information and its origin need not be disclosed by the prosecutor. If the government providing the information consents, the information may be used in the court -- in a closed proceeding -- but there is no requirement that the sources or methods be available for examination, or even disclosed to the defendant. The defendant is also not entitled to access to information in the possession of the prosecutor the disclosure of which may prejudice further investigations, may be contrary to the public interest, or may affect the security interests of any state. These protections go beyond those provided in U.S. domestic law, which limit the scope of material defendants may reque st from intelligence agencies but do not protect sources and methods. In addition, as all court proceedings are open to the public, any information used in court automatically becomes available in the public domain.

At the Yugoslavia and Rwanda tribunals, a determination of guilt is made by a majority of the Trial Chamber, with the standard of proof being beyond a reasonable doubt. While these international courts may not impose the death penalty, over 130 states do -- in particular for war crimes and terrorism -- and the death penalty was imposed in a number of instances by the Nuremberg and Tokyo tribunals.

The draft rules under consideration by the Department of Defense are consistent with these international standards. The rules are reported to provide for appellate review, the presumption of innocence, the requirement of proof beyond a reasonable doubt to establish guilt, the admission of hearsay evidence (but with the application of the reasonable-person standard), the limited use of in camera proceedings, and the requirement of a unanimous decision for a sentence of death.

Answering the critics

THE MANNER IN which the original Military Order was drafted caused some valid concern that the level of due process contemplated might not comply with international standards. In the further promulgation of rules of evidence and procedure for the military commissions, and in their use, the United States must be careful to ensure that their purpose remains solely to ascertain the guilt or innocence of the accused. In most regards, however, the due-process concerns raised by commentators are unsubstantiated.

Another concern raised about the use of military commissions is that by not having a public trial, the United States forgoes an opportunity to try to undermine international support for terrorism. No evidence supports this claim. The United States has had a number of trials of low-level terrorists and trigger-pullers, and there is no indication whatsoever that those trials have reduced the level of support for terrorism. If anything, the trials have led to cries of outrage from the radical Islamic world and provided a platform for defiant speeches and posturing. It is highly unlikely that any individual sufficiently propagandized by religion and ideology to train in an al Qaeda terrorist camp is going to be influenced by Court TV coverage of judicial proceedings. More likely, the fully public hearings will provide a platform for the further recruitment of terrorists and for preaching the tenets of Islamic fundamentalism. This is why Zacarias Moussaoui, accused of participating in planning the September 11 at tacks, sought to permit Court TV to cover his trial and why the U.S. government opposed his request.

A second concern is that using military commissions instead of conventional trials will undermine American values and the rule of law, and thus hand victory to the terrorists. This is fanciful and unfair First, so long as the military commissions provide for a full and fair trial, they do not undermine American values or the rule of law. The Supreme Court has upheld such commissions in principle, and the level of protections provided will be much higher now than in the World War II case in which the court ruled. Second, it is silly to suggest that bin Laden is seeking to undermine the rule of law in the U.S., and would therefore gain from being tried by a military tribunal. Bin Laden is not waging a war against the United States because he objects to our notions of democracy and civil liberties, but because he has determined that killing Americans is the best way to undermine American support for the Saudi regime. American support for that regime is based on our economic and geo-strategic interests - certain ly not on our values. Similarly, the individual al Qaeda terrorists who actually carry out attacks are not interested in undermining American values, but in personal glory and a shortcut to martyrdom and the afterlife. In short, we lose nothing by using tribunals, and they gain nothing by our doing so.

A third concern is that the military commissions will become "kangaroo courts" or will be perceived as such by "the world." We simply cannot be moved by such claims, to the extent that they are made. The U.S. system of justice will require full and fair hearings, which will satisfy international standards. The kangaroo courts that al Qaeda prisoners are likely to see will be for those unlucky enough not to have the benefit of a U.S. trial, forced instead to confront the likely alternative of summary execution by the Northern Alliance or southern Pashtun tribes, or summary proceedings by Islamic courts in the region. Our allies will support us in this regard. Many European states, including France, Ireland, and Italy, have special proceedings, rules of evidence, and procedures for terrorism cases, and most of the Arab states, including Egypt and Jordan, use military tribunals extensively to try suspected terrorists. Some states, like Spain, may refuse to extradite suspected al Qaeda members to the United Stat es to face a military commission even though, as some experts have noted, the suspects would likely receive a higher level of due process before an American military commission than in a Spanish criminal court. But in these instances, the United States can suggest other alternatives in order to gain custody of particularly important individuals.

No doubt, some will rely on the use of trials by military commission as grounds for attacking the United States, and presenting evidence in secret will fortify bin Laden's propaganda; furthermore, the execution of convicted terrorists after such trials will be used to attempt to create a new generation of martyrs. But it is capitulation to such irrational forces, not the use of military tribunals, that would truly jeopardize the rule of law. While Islamic fundamentalists will passionately claim that any trial of Taliban or al Qaeda members is a rigged process, moderate Arabs will weigh the fairness of such trials against their perceptions of justice and due process as framed by their own experiences in their home countries.

Some argue that by not providing terrorists seized in the ongoing terror war with American constitutional protections, the United States will no longer have credibility with the international community when it seeks to criticize other states for failing to apply standards similar to those applied in the United States. In fact, the conduct of full and fair trials before a military commission consistent with internationally accepted standards (as opposed to merely American standards) is a lot more likely to persuade states already using military tribunals to upgrade their level of due process to international standards than is continued lecturing by American diplomats and NGOS about the need to copy the American model of due process.

Finally, some commentators have suggested that existing international mechanisms, or mechanisms that could be readily adopted, are the right place in which to prosecute suspected terrorists and war criminals, and thus that no need exists for military commissions. This is simply untrue.

The International Criminal Court, for example, which has been mentioned as a possible venue, is not yet in existence; when and if it does become a reality, it will have no power to apply its authority retroactively. Its jurisdiction, moreover, does not include terrorist crimes, because all suggestions that such crimes be covered were rejected at the Rome Conference. Even were it to come into force, it would take many years for the Assembly of States that will be its governing body to select a prosecutor and judges, let alone to prepare an indictment against key terrorist figures. In the case of the Yugoslavia tribunal, for instance, it took over a year and a half to select a prosecutor, and then seven years for the prosecutor to prepare an indictment of Slobodan Milosevic. The ICC in any event would pose a far greater threat to U.S. interests and the advancement of human rights than would the use of military tribunals. The Assembly of States, composed of no fewer than the 60 states that must ratify to bring t he treaty and court into existence, will be empowered with a two-thirds vote to add international crimes (including eventually the crime of "aggression") and to hire and fire the prosecutor. Given the record of states in the General Assembly with regard to the values the U.S. espouses on human, political, and economic rights, one can only view with astonishment the willingness of states and scholars that share U.S. values to risk turning over such power to any 40 of the current 180 or so states that make up the General Assembly.

The Spanish prosecutor Baltasar Garzon, a former Socialist politician who pressed for the extradition of Chile's General Augusto Pinochet, is rumored as a potential prosecutor for the ICC. As the U.S. prepared to exercise its right of self-defense in Afghanistan with the unanimous (albeit implicit) approval of the Security Council, Garzon declared, "Lasting peace and freedom can be achieved only with legality, justice, respect for diversity, defense of human rights and measured and fair responses." The U.S. action, he claimed, was illegal and unjust, explaining that "it should not be forgotten that there will come a time when justice is demanded of those responsible for these mistakes and the loss of a historic opportunity to make the world more just." The Financial Times further reported him warning, "The justice I am talking about is that which should be brought to bear not only on the Taliban for its brutal and oppressive regime but also on the leaders of western countries, who, irresponsibly and through t he media, have generated panic among the Afghan people."

Calls have also been made for the creation of a special "International Terrorism Court" as a substitute for national courts, including military tribunals. Unfortunately, no draft plan for such a court exists, and its creation would likely take many years and be highly politicized. Such a tribunal might also suffer from many of the deficiencies that will afflict the ICC, depending on the manner in which its statute is drafted.

Building on the Yugoslavia tribunal

A MORE PRAGMATIC APPROACH to creating an international mechanism that could supplement the use of military tribunals, and one that could have the advantage of displacing the ICC, would be to add to the jurisdiction of the existing ICTY crimes associated with terror wars no matter where or by whom they are committed. This could be accomplished through a U.N. Security Council resolution citing the authority of Chapter VII of the U.N. Charter, "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression." The Security Council would have to markedly increase the ICTY'S budget to provide for the hiring of a substantial number of personnel, in addition to modifying its organizational structure and mandating a number of overdue institutional reforms.

Transforming the ICTY to deal with certain terrorist crimes is preferable to creating a new international mechanism for a number of reasons. After nearly eight years of operation the ICTY has an established set of rules of procedure and evidence and has a rational jurisprudence. The tribunal is perceived as fair and capable, with a competent prosecutor and a solid complement of trial and appellate judges, including a number of Islamic judges. The tribunal was in fact originally created in response to atrocities and war crimes committed against Muslims because of their religious identity. The tribunal should thus have a heightened degree of credibility among those who might otherwise be skeptical of an international tribunal. Moreover, as an institution with ample independence, yet created and supported by the Security Council and subject to its continuing review, the transformed Yugoslavia tribunal would avoid many of the political and practical afflictions of the ICC. While a U.S. military commission could be used to try most suspected terrorists and war criminals, the expanded Yugo/terrorism tribunal could be used to try top-level suspects and those who do not come into U.S. custody.

Bearing in mind that courts, in whatever form, play only a small role in the fight against terror, the recent authorization of the use of military commissions should be welcomed as a sign that the U.S. government will not continue the criminal-law response to terror war, which contributed to the vulnerability of the United States on September 11. Assuming that the rules of procedure and evidence for the commissions comply with international standards, the commissions will fill a crucial role, one that the domestic criminal justice system is incapable of meeting. In addition, the United States should initiate an effort in the Security Council to expand the existing Yugoslavia tribunal to enable it to prosecute certain particularly egregious terrorist crimes. This would have the dual benefit of creating a viable mechanism to aid in the war against terror, and supplanting the ICC, which is likely to restrict efforts of the United States and its current allies to protect themselves and their interests against fu ture acts of terrorism amounting to acts of war. In this way, courts and the rule of law will serve to make the battle for freedom more rather than less effective.

Abraham D. Sofaer is senior fellow at the Hoover Institution and professor of law, by courtesy, Stanford University. He served as legal advisor to the State Department from 1985 to 1990. Paul R. Williams is assistant professor of law and international relations at American University.