[F]ollowing a rise in extremist violence, the Government began trying cases of persons accused of terrorism and membership in terrorist groups before military tribunals. . . . This use of the military . . . courts . . . has deprived hundreds of civilian defendants of the constitutional right to be tried by a civilian judge. The Government defends the use of military courts as necessary in terrorism cases, maintaining that trials in the civilian courts are protracted and that civilian judges and their families are vulnerable to terrorist threats. Some civilian judges have confirmed that they fear trying high visibility terrorism cases because of possible reprisal. The Government claims that civilian defendants receive fair trials in military courts. . . . However, the military courts do not ensure civilian defendants due process before an independent tribunal. . . . There is no appellate process for verdicts issued by military courts; instead, verdicts are subject to . . . confirmation by the President.
This is not the draft of an ACLU press release on the recent military order signed by President Bush. It is an excerpt about Egypt from the U.S. Department of State Country Reports on Human Rights Practices for 2000. Similarly, when American Lori Berenson was convicted on terrorism charges in a military court in Peru, the United States vigorously objected, and included in its report the following analysis: "Proceedings in these military courts . . . do not meet internationally accepted standards of openness, fairness, and due process. Military courts hold . . . trials in secret."
After the president’s order authorizing secret military trials, what will the United States be able to say?
The Bush administration has shown some initial signs that it will not forsake the U.S. criminal justice system —for example, deciding in early December to try French citizen Zacarias Moussaoui for conspiracy to commit terrorism and other related crimes in federal district court in Virginia. However, the administration is defending its military order with great intensity and is not providing much advance information on how and when military commissions could be used.
Many societies have faced the violent scourge of terrorism and attacks on innocent civilians. But of these the United States has the strongest constitutionally based institutions of justice. In this time of crisis, we should view these institutions as a source of strength, not a liability. So why does the administration insist on having the authority to turn away from that system now, in favor of an extraconstitutional process that will surely be seen by many in the Muslim world as lacking in credibility?
Some argue that only Americans deserve American-style justice, with its presumption of innocence and other due process guarantees. Others insist that the extenuating circumstances of the war on terrorism make speedy convictions the overriding goal. Oliver Wendell Holmes said that hard cases make bad law; some have argued that the only way to inoculate our criminal justice system from the inevitable bad law is to forsake that system and set up a parallel scheme for trying terrorist suspects.
That is what President Bush has said he wants to do. In his capacity as Commander-in-Chief of the Armed Forces, and pursuant to his declaration of national emergency, the president issued a military order on November 13 regarding the "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism." By this order, which has no expiration date, the president grants himself the power to turn any non-U.S. citizen whom he suspects is a terrorist, over to the secretary of defense to be tried by a "military commission" under whatever rules the secretary of defense creates.
No court would decide who goes before such a commission; the president need only state that he has reason to believe a certain person is a terrorist. This could be anyone, from an Al Qaeda operative captured during battle, to one of the many thousands of immigrants in the United States now being rounded up for questioning by the FBI.
The Moussaoui indictment makes it hard to imagine a case that could justify the use of military courts inside the United States. However, the order’s definition of "terrorist" is so extraordinarily broad that, as written, it could include a person who harbored someone who aided someone in committing an act in preparation for an act of international terrorism that was designed to have an adverse effect on the U.S. economy. The military order’s jurisdiction goes way beyond Osama bin Laden, and even Al Qaeda. Under the expansive terms of the order, the potential defendant described above could be sentenced to death in a trial held entirely in secret. There is no right to appeal, no protection against coerced confession, no provision for access to counsel, and no presumption of innocence. To the contrary, it’s a presumption of guilt on which the military tribunal system is justified: "Somebody who comes into the United States illegally, who conducts a terrorist operation killing thousands of innocent Americans" does not deserve the safeguards of the American criminal justice system, Vice President Cheney has argued. When asked about the type of procedures we can expect the secretary of defense to establish, Mr. Cheney said that the president’s order "guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve."
In addition to the rights afforded criminal suspects under the U.S. Constitution, the United States has committed itself to upholding certain international human rights standards, including those set out in the International Covenant on Civil and Political Rights (Covenant), which the United States ratified in 1992. This international human rights framework for protecting civil and political rights is based on the premise that security and justice are mutually reinforcing goals. Neither can be fully realized in the absence of fundamental human rights guarantees. The treaty explicitly provides that some of its obligations may be set aside in times of national emergency; but even then, there are limits. The UN Human Rights Committee is the expert body charged with interpreting the treaty and providing guidance to countries with regard to compliance. Less than two weeks before the September 11 attacks, the UN Committee wrote in a General Comment on Article 4 of the treaty (which sets out the process and limits for derogation from the obligations of the treaty in situations that "threaten the life of the nation"): "It is inherent in the protection of rights explicitly recognized as non-derogable in Article 4, Paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. . . . Thus, for example . . . any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the prerequisites of Articles 14 and 15."
Article 14 requires, among other things, that defendants benefit from a presumption of innocence and that they have the right to appeal a conviction to a higher tribunal. And there can be no derogation from Article 7, which prohibits torture and cruel, inhuman or degrading treatment or punishment, even in times of national emergency. None of these rights is protected in the president’s military order.
Before the president signed the November 13 order, there were intense discussions within the administration about the so-called "justice options"—the methods under which suspected terrorists could be brought to book. Administration representatives have said that the military tribunal remains only one tool at the president’s disposal; it does not rule out other options.
But what are the other options? The first, obviously, is to try terrorist suspects under standard procedures in regular U.S. courts, as the administration has decided to do in the Moussaoui case. This decision builds on a successful history of cases. Those indicted in the attack on the World Trade Center in 1993 and in the U.S. embassy bombings in Kenya in 1998 were tried and convicted through the ordinary process of the U.S. criminal justice system; some are now serving life sentences in U.S. jails.
For those apprehended outside the United States, a variety of other options have been suggested. The International Criminal Court (ICC) has been mentioned as a possible venue for terrorist trials. This body, intended to provide a standing forum in which those accused of the worst human rights crimes could be brought to justice, would seem like a natural choice to try such enemies of civilization as bin Laden and his associates. Although the court has not yet come into existence, and its jurisdiction is prospective only, the requisite sixty ratifications likely will be obtained in a few months. Many international legal experts, including the UN High Commissioner for Human Rights, have concluded that the September 11 attacks constitute "crimes against humanity," a central feature of the ICC’s jurisdiction. Though it could not try the perpetrators of these attacks, the events of September 11 make clear the importance of getting the ICC up and running as soon as possible. The closest U.S. allies in the current military effort—including the United Kingdom, which ratified the ICC treaty in the midst of offering the U.S. its support in the war on terror—believe that the ICC represents the future of international justice in the new millennium. Yet, the United States continues to spurn it, even in the aftermath of our national tragedy, signaling support of a bill sponsored by Senator Jesse Helms (R-N.C.) that would prevent the ICC from ever coming into existence. Ultimately, however, the hard-headed multilateralism that the Bush administration now preaches must lead it to overcome its objections to the ICC and join with its allies in supporting this important new institution. When the gavel comes down at the start of the ICC’s first trial of an international terrorist, U.S. opposition will likely start to come down too.
Of course, the international options for trying terrorist suspects are not limited to the ICC. Some experts have suggested expanding the jurisdiction of the Yugoslav war crimes tribunal to include terrorist offenses and war crimes committed in Afghanistan. Others suggest that the UN Security Council establish a new tribunal to try Al Qaeda members. Additional alternatives include some type of hybrid, Lockerbie-style court, or military trials conducted in jurisdictions outside the United States.
Although each of these options carries its own set of complications, none would require us to forsake our cherished institutions of justice. The military commissions authorized by the president’s order have no place in a country committed to protecting liberty through the rule of law and separation of powers. The United States stands for these principles internationally, and will be judged by how well it cleaves to them in this time of crisis.
On November 13, President Bush announced he had signed the order permitting use of military commissions. As Bush was leaving for his Texas ranch for a meeting with Russian President Putin, Deputy White House Counsel Timothy Flanigan announced "The order’s signed and nobody’s ashamed of it."
Someone should be.