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The Military Tribunals on Trial

2.

A main source of the controversy over President Bush’s order is its application to aliens in the United States. Hostility to aliens during tense periods has a long history in the US. Attorney General A. Mitchell Palmer rounded up thousands in response to terrorist attacks after World War I (including the bombing of Palmer’s house), and hundreds of radicals were deported—among them, the anarchist leader Emma Goldman—to Soviet Russia.9 By drawing a line between citizens and noncitizens in establishing the jurisdiction of the military tribunals, President Bush associates himself with this tradition.

He also pays lip service to the decision by the Supreme Court in the landmark case of Ex parte Milligan, which challenged President Abraham Lincoln’s suspension of habeas corpus during a Civil War trial of a civilian before a military commission. The court ruled that trials before military commissions “can never be applied to citizens…where the courts are open and their process unobstructed”^10. In making such an argument in order to limit the rights of noncitizens, President Bush reverts to the nativist politics that were in vogue in Congress during the period of Newt Gingrich’s “Contract with America.” He rejects the traditions of American jurisprudence and practice that treat citizens and legal permanent residents of the United States alike except in matters that directly relate to citizenship such as the rights to vote and to run for office. As Justice Harry Blackmun wrote for the Supreme Court in a case involving the denial of welfare benefits to noncitizens, “classifications based on alienage, like those based on nationality or race, are inherently suspect.”11

That does not mean such classifications are never permissible. It does mean they must be justified by a compelling state interest. A case might be made that such an interest justifies treating differently those who can be shown, through fair procedures, to have come to the United States for the express purpose of engaging in terrorism and who cross our borders illegally, or fraudulently obtain a visa, in order to carry out terrorist acts. But to deny 9.3 million permanent residents the right to trial in civilian courts is surely excessive. Such persons might engage in terrorism, but—as with Timothy McVeigh and Terry Nichols—the same is true of American citizens. What compelling state interest justifies treating them differently?

The World War II case in which German aliens came to the United States just to engage in unlawful combat prompted President Franklin D. Roosevelt to establish a military commission. It is widely believed that this was the direct inspiration for President Bush’s order to create such commissions. President Roosevelt’s military commission tried four German saboteurs who came ashore from a U-boat at Amagansett, Long Island, on June 13, 1942, and four more who landed four days later at Ponte Vedra Beach, Florida. Their mission was to blow up rail centers, bridges, locks on the Ohio River, the New York water supply system, and a number of industrial plants. They were quickly arrested and found guilty. The case went to the US Supreme Court, which upheld their convictions.12 Six of the eight were executed a few days later. The other two were spared electrocution because they had informed on their associates, and were eventually released from prison a few years after the end of the war and repatriated to Germany.

If a similar case arose today, and it was shown through proper procedures that the persons arrested were in fact would-be saboteurs or terrorists, it would be difficult to argue that just because they set foot in the United States they are entitled to all the protections available under the United States Constitution.13 Yet President Bush’s order goes too far in the case of such persons, since the order appears to abolish their remedy of habeas corpus, in which they could question a military commission’s jurisdiction. The President’s order states:

With respect to any individual subject to this order—

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in

(i) any court of the United States, or any State thereof,

(ii) any court of any foreign nation, or

(iii) any international tribunal.

Despite this plain language, the President’s counsel, Alberto R. Gonzalez, has contradicted it, writing:

The order preserves judicial review in civilian courts. Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court.14

Hence, it must be assumed either that the Defense Department regulations will specify that habeas corpus is available to those detained in the US or that Mr. Gonzalez recognizes that, whatever the order says, such a remedy cannot be constitutionally denied by the President. Under the Constitution, habeas corpus may only be suspended “in Cases of Rebellion or Invasion.” Moreover, the passage refer-ring to the suspension of habeas corpus appears in Article I setting forth the powers of Congress rather than in Article II dealing with the authority of the President.

In practice, the Justice Department’s decision to try in a federal court Zacarias Moussaoui, the alleged twentieth hijacker, who was in the United States with only a temporary visa, sets a precedent that makes it seem highly unlikely that efforts will be made to bring any permanent resident before a military commission. To do so would implicitly acknowledge that the case against such a person is too weak to stand up under the scrutiny that the charges against Mr. Moussaoui will receive when he comes to trial. It seems apparent that career prosecutors, who have an excellent record in securing convictions of accused terrorists, insisted on a federal court trial in Moussaoui’s case.

Their victory in this matter is reminiscent of an episode two decades ago when President Reagan took office. His administration came to Washington in 1981 intent on reversing the refusal by the Carter administration to allow the sale of American military equipment to President Augusto Pinochet’s Chile. Among the emissaries dispatched to Santiago to inform Pinochet of the new policy were General Vernon Walters, former deputy director of the CIA, and Jeane Kirkpatrick, the administration’s ambassador to the United Nations. But the sales were blocked by Justice Department prosecutors who relied on a provision of US law barring such sales in the absence of a report certifying

that the Government of Chile is not aiding or abetting international terrorism and has taken appropriate steps to bring to justice by all legal means available in the United States or Chile those indicted by a United States grand jury in connection with the murders of Orlando Letelier and Ronni Moffitt.

Pinochet’s refusal to prosecute or extradite three military officers—including the former commander of his secret police—for those 1976 murders in Washington blocked the Reagan administration from providing the assistance it wished to give him because of the strong stand by Justice Department attorneys who had worked on the Letelier-Moffitt case.

It is possible that the decision to prosecute Moussaoui in federal court has even more sweeping implications. The information that has been made public about him thus far suggests that he may have come to the United States for the express purpose of engaging in terrorism. If that turns out to be the case, one wonders whether any effort will be made to bring any other aliens in the US before a military tribunal, whether in Guantánamo Bay or any other US military bases that have been mentioned as possible sites for trials. At the very least, in view of the decision to prosecute Moussaoui in federal court, the Defense Department regulations should make it clear that permanent residents of the United States are not susceptible to such proceedings.

Though it appears that a number of the issues respecting the lawfulness of President Bush’s order for military commissions are being addressed, there remains the question of whether the commissions are a good idea from the standpoint of international public policy. In at least three respects, plainly they are not. First, there is the question of whether other governments will cooperate with the United States in bringing to trial alleged members of the terrorist network. According to Baltazar Garzon, the Spanish investigative judge who has charged eight men with involvement in the September 11 attacks: “No country in Europe could extradite detainees to the United States if there were any chance they would be put before these military tribunals.” He cited the European Convention on Human Rights, a treaty that is binding on the forty-three member states of the Council of Europe.15

It is unclear whether the modifications that are being made to President Bush’s order by Defense Department regulations will cause Spain and other foreign governments to allow such extraditions. Probably they will not, since it is the issue of military tribunals per se, as well as their ability to impose the death penalty, that is likely to be objectionable to European countries. If the US cannot secure custody over such persons, the damage to American interests should be clear. Our government will be denied the opportunity to bring criminal proceedings against people who may be part of the conspiracy to commit terrorist attacks. Even if they are guilty, they could go free because prosecutors in Spain, or elsewhere, may not be able to prove their complicity in crimes committed in the United States. In turn, American prosecutors may be deprived of crucial links in a chain of evidence that could implicate others. And the tribunals will further tarnish the reputation of the United States in Europe, where the United States is increasingly regarded as violating human rights because of its use of the death penalty, as well as the shoddy legal representation provided defendants in capital cases in states such as Texas and the high proportion of our population behind bars—approximately seven times as great as in the fifteen countries of the European Union.

Another defect of military tribunals is that their judgments are unlikely to have much legitimacy in the countries that are the probable breeding grounds for international terrorism. We can hardly expect that those who cheered the attacks of September 11 and who lionized Osama bin Laden are going to pay heed to the judgment of any court. But to the extent possible, it is in America’s interest that verdicts against those tried for terrorism should be credible to shopkeepers in Cairo or Jakarta or civil servants in Marrakech, Islamabad, or Dacca. Their opinion should matter to us because Americans are safer in a world in which such people are willing to oppose terrorism. If we want to persuade them that the verdicts are just, military tribunals at Guantánamo are not our best choice.

Military tribunals, moreover, will further erode the effectiveness of the United States as a defender of human rights internationally. Quite aside from the proposed tribunals, the reputation of the US as an advocate of human rights in many parts of the world has in other ways been impaired by some of its post–September 11 policies. Though our intervention in Afghanistan has clearly improved the human rights situation in that country by ending the Taliban’s repressive rule, our current alliances with such regimes as Russia, China, Uzbekistan, and Pakistan have sharply limited our capacity to speak out about their abuses. This is especially true when the victims can be linked, however tenuously, to al-Qaeda, whether the Chechens in Russia, the Uighurs in China, and the thousands of Islamists in President Islam Karimov’s viciously brutal prisons in Uzbekistan.

By establishing special military tribunals to deal with terrorists, we also undermine our ability to criticize governments such as Peru, Cuba, and Turkey that have made use of such tribunals, bypassing their regular courts in order to deal with alleged threats. On December 25, a Russian military tribunal, meeting behind closed doors, sentenced the Soviet journalist Grigory Pasko to four years in prison for disclosing information on environmental abuses by the Russian Pacific Fleet to Japanese journalists.16 If the US were to resort to closed military tribunals, any

complaints it makes about such procedures elsewhere would ring hollow.

In effect, parts of the President’s order make the implicit claim that terrorists don’t deserve protections of due process. As President Bush has put it, “We must not let foreign enemies use the forums of liberty to destroy liberty

itself.”17 But the President ignores the fact that one of the purposes of due process is to ensure that the right persons are convicted. Scores of death sentences are being overturned because DNA evidence has established that convictions were mistaken even after defendants were tried with the protections available in American civilian courts. This should underline the need for protecting constitutional rights. And if due process is systematically denied to accused al-Qaeda members, one likely consequence is that other categories of accused persons—drug dealers, mass murderers, child molesters, etc.—will be labeled as similarly undeserving. Unfortunately, civil liberties particularly need defense in circumstances that involve the most loathsome defendants. The next time, it may be too late.

Proponents of human rights have been divided over the tribunals. Harvard Law School’s Laurence Tribe more or less endorses tribunals—invoking, without attribution, Justice Robert Jackson’s line that the Constitution is not a suicide pact—but he wants the objectionable features of Bush’s order regulated by Congress.18 Yale Law School’s Harold Koh, who served with distinction as assistant secretary of state for human rights in the Clinton administration, calls for trials in American federal courts of alleged terrorists, wherever they are arrested. “Why not show,” Koh writes, “that American courts can give universal justice?”19

Unfortunately, no momentum has developed for another solution: trial before a special international court such as those established to deal with former Yugoslavia and Rwanda. Indeed Harold Koh, who labels such a court a “more benign approach than President Bush’s military tribunals,” nevertheless rejects it as “slow and expensive.”

Koh is no doubt right that international trials would be costly and cumbersome; but it is not clear that those disadvantages outweigh the value of proceeding in a manner that has a better chance to gain broad international acceptance than entirely American courts, especially a military court set up in Guantánamo or some other military base. Deferring to such an international court could strongly advance American interests. Despite the slow pace with which they have proceeded, the worldwide credibility achieved by the tribunals for ex-Yugoslavia and Rwanda is very high. For the US, achieving such credibility is second in importance only to convicting the guilty.

Human rights advocates who have supported international tribunals in other circumstances did not press for them after September 11, believing that any such effort was doomed to be rejected by the Bush administration. In the immediate aftermath of the attacks, as the administration courted other governments to build an alliance against terrorism, some commentators suggested that the administration was abandoning its strongly proclaimed unilateralism. In fact, however, the administration’s quick success in Afghanistan has reinforced those in the White House and the Defense Department who believe that America is better off going it

alone. Renunciation of the ABM treaty is an obvious example. With the rapid triumph of the US, any faint prospect evaporated that the administration would accept multilateral participation in trials of alleged al-Qaeda members.

What then is to be done about the military tribunals? A first step is to narrow the range of those who may be tried before them. A judicial process should be available to distinguish prisoners of war from unlawful combatants. The authority of the tribunals to

try permanent residents of the United States should be eliminated. The trials should be required to observe standards of due process that include, at

least, rights to a public trial; to counsel of the defendant’s choice; to call and cross-examine witnesses; to be convicted only upon proof beyond a reasonable doubt; to appeal to an independent and impartial court; and, in the case of aliens arrested in the United States, to have an opportunity to challenge the jurisdiction of such tribunals by habeas corpus.

Finally, human rights groups should be provided the opportunity to establish a presence in Guantánamo or wherever else the trials are held, and to monitor all proceedings and to circulate their findings. Whatever the facilities provided to such groups, they will, of course, study the trials as best they can. Their conclusions about the tribunals are likely to matter to the United States, and to other countries, almost as much as the verdicts of the tribunals about the defendants who appear before them.

January 16, 2002

  1. 9

    The Palmer Raids were halted by a federal court case in Boston sponsored by the National Civil Liberties Bureau which was then being transformed into the American Civil Liberties Union, Colyer v. Skeffington 265 Fed. 17 (D. Mass. 1920). Professors Zechariah Chafee Jr. and Felix Frankfurter of Harvard Law School participated in the case and the school’s dean, Roscoe Pound, joined them in a public denunciation of the raids that also was influential in forcing Palmer and his aide, J. Edgar Hoover, who supervised the roundups, to stop them.

  2. 11

    Graham v. Richardson 403 US 365 (1971). In a subsequent case in which it struck down the exclusion of the children of illegal aliens from public schools in Texas, the Supreme Court went further, holding that constitutional guarantees such as equal protection and due process apply to all “persons,” whatever their status under the immigration laws. See Plyler v. Doe 457 US 202 (1982).

  3. 12

    Ex parte Quirin 317 US 1 (1942).

  4. 13

    Difficult but not impossible in light of Plyler v. Doe, the case cited in footnote 10.

  5. 14

    Alberto R. Gonzalez, “Martial Justice, Full and Fair,” The New York Times, November 30, 2001.

  6. 15

    Sam Dillon and Donald G. McNeil Jr., “Spain Sets Hurdle for Extraditions,” The New York Times, November 24, 2001.

  7. 16

    Sharon LaFraniere, “Journalist Is Convicted of Treason in Russia,” The Washington Post, December 26, 2001.

  8. 17

    Bush Speaks of Security to Group of US Attorneys,” The New York Times, November 30, 2001.

  9. 18

    Laurence H. Tribe, “Trial by Fury: Why Congress Must Curb Bush’s Military Courts,” The New Republic, December 10, 2001.

  10. 19

    Harold Hongju Koh, “We have the Right Courts for Bin Laden,” The New York Times, November 23, 2001.

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