Against Military Tribunals

...The Bush administration has missed the key point: to win a global war against terrorism, nations that claim moral rectitude and fidelity to the rule of law must not only apply, but universally be seen to be applying, credible justice...

...To ensure that the international community perceived that those convicted for the September 11 attacks would receive fair and impartial justice, the United States should never have sent detainees to Guantánamo and should now bring suspects only before standing tribunals that have demonstrated their capacity to dispense such justice in the past...

...International tribunals make the most sense when there is no functioning municipal court that could fairly and efficiently try the case, as happened in the former Yugoslavia and Rwanda...

...More than two centuries ago, Article I, Section 8, Clause 10 of the U.S...

...In recent decades, U.S...

...One might understand resorting to a military commission in a country where no currently functioning court could fairly and efficiently try the case...

...military justice...

...Creating military commissions, using Guantanamo, and labeling American criminal defendants as "enemy combatants" have been tragic and unnecessary errors...

...In other times, it would have seemed unremarkable for an American civilian court to try someone charged with conspiring to murder American citizens and destroy American property on American soil...

...Undermining Moral Leadership Using military commissions harms our strategic interests...

...First, military commissions create the impression of kangaroo courts, not legitimate mechanisms of accountability...

...How should the United States have pursued the issue of justice after September 11...

...Yet sweeping all "unlawful combatants" who have committed "war crimes" into untested, unwise, and legally deficient U.S...

...Finally, military commissions provide ad hoc justice and hence uncertain protection for defendants' rights...

...Indeed, John Walker Lindh's plea bargain only demonstrated again that the existing criminal justice process is fully capable of handling even trials of detainees whose crime was fighting alongside the Taliban...

...judicial system has amply demonstrated its ability to adapt to new, complex problems in criminal and civil law...

...Responding to this furor, regulations finally issued by the Defense Department in March now purport to guarantee some procedural protections to defendants brought before such military commissions, but no right to judicial review before civilian judges...

...Even after the release of detailed regulations, the military order still undermines the constitutional principle of separation of powers...

...diplomats protest vigorously, and the world condemns those tribunals as anti-Muslim...

...HAROLD HONGJU KOH is professor of international law at Yale Law School...

...In surveying its justice options, the United States should have distinguished more carefully between its most pressing concern—redressing and preventing the murder of Americans on American soil—and much broader efforts to support the creation of an enduring postTaliban system of justice in Afghanistan...

...DISSENT / Fall 2002 n 61 AGAINST MILITARY TRIBUNALS Instead, our government now holds hundreds on Guantánamo, and may initiate military commissions there...

...But over the centuries, the U.S...

...rWALLY, those who believe that an international tribunal with Muslim judges would ensure "Muslim buy-in" into the international adjudicatory process should recall that the last United Nations gathering before September 11 was the World Conference Against Racism, in which several Muslim countries sought to use the forum to pursue their political grievances against Israel...

...Given the persistent U.S...

...Although the Defense Department's regulations now offer greater protections for the accused, those regulations— unlike the Bill of Rights, the Federal Rules of Criminal Procedure, or the Uniform Code of Military Justice—cannot guarantee those rights, as they are subject to change at the president's will...

...Had this strategy been followed, the U.S...

...Two American citizens— Yasser Hamdi and José Padilla—are being held as "enemy combatants"—incommunicado and without due process—in military facilities within the United States...

...The Defense Department will end up chasing its own tail...

...Perversely, the Military Order threatens national confidence in existing legal institutions just when that confidence is already badly shaken by horrific terrorist attacks...

...Given the administration's hostility to the International Criminal Court, that proposal never received serious political consideration...

...Most important, espousing military commissions undermines U.S...

...To the extent that current Defense Department regulations now provide for these procedures, they could be changed tomorrow...

...Cases primarily involving crimes in Afghanistan— whether committed by the Taliban or the Northern Alliance—would have been best addressed by rebuilding the judicial system of Afghanistan itself, a task that, like the rebuilding of the Sierra Leonean, East Timorese, Bosnian, and Kosovar legal systems, will require substantial and sustained international and UN input...

...Since then, Congress has criminalized numerous other international crimes, including aircraft sabotage and theft of nuclear materials...

...We can hardly object when other countries choose to treat U.S...

...government's trying suspected terrorists before military commissions...

...That leaves standing civilian courts or courts-martial that operate under preexisting and transparent rules...

...Department of State has regularly pressed to have cases involving U.S...

...Second, by failing to deliver justice that the world at large will find credible, the military order undermines our ability to pursue our core post–September 11 aim: leading an international campaign against terrorism under a rule-of-law banner...

...Soon after September 11, some people argued that we should press for a new international tribunal to try terrorists...

...Under the order, the president directs his subordinates to create military commissions, to determine who shall be tried before them, and to choose the finders of fact, law, and guilt...

...embassies...

...criticism of communist Cuba for violating the rights of its prisoners, it is supremely ironic and tragic that the United States sought to create what appears to be its own "rights-free zone" for alien detainees on that part of Cuba under American jurisdiction...

...government's ability to protest effectively when other countries use such tribunals...

...The United States should have sent for trial before American civilian courts by seasoned federal prosecutors only those cases involving defendants (such as leading al-Qaeda members) who have been charged with or suspected of murdering or plotting to murder American citizens on American soil...

...civilian courts, I see no need to charge any future defendants before untested and suspect military commissions...

...In the currently supercharged Mideast atmosphere, many of the same countries would doubtless argue that any UN tribunal to try terrorists should also try Israeli officials with no connection to the September I 1 attacks, an argument that potential Western signatories to the tribunal would surely reject...

...citizens heard in civilian courts in those countries...

...Third, because military tribunals in Burma, Colombia, Egypt, Peru, Turkey, and elsewhere have been perceived as granting judgments based on politics, not legal norms, the U.S...

...DID WE HAVE other options...

...Supporters of military commissions have mistakenly concluded that standing American courts are somehow incapable of rendering full, fair, and expeditious justice in such cases...

...The United States regularly takes other countries to task for military proceedings that violate basic civil rights...

...Second, rather than openly announcing the truth, commissions tend to hide the very facts and principles the United States now seeks to announce to the world...

...But even if the U.S...

...courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations...

...However heinous the offenses of Afghan war criminals against other Afghan citizens may be, they should not be adjudicated by American courts or courts-martial that have little interest or expertise in the decades-old Afghan conflict...

...He served as assistant secretary of democracy, human rights, and labor from 1998 to 2001...

...Through extensive tinkering, the Defense Department's regulations have now sought to 6o n DISSENT / Fall 2002 ensure that any military commissions convened will operate more fairly in fact...

...How, then, can the United States be surprised when its European allies refuse to extradite captured terrorist suspects to U.S...

...LAST JANUARY, Zacarias Moussaoui, a French national of Moroccan descent, pleaded "not guilty" in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center...

...If the United States wants to show the world its commitment to the very rule of law that the terrorists sought to undermine, it should take this opportunity to demonstrate that American courts can give universal justice...

...telling the world the truth about those crimes...

...Read literally, the panel's holding would permit American officials deliberately to starve the alien detainees, to subject them to forced sterilizations, or to discriminate against them on the basis of their religion or skin color...

...In sum, the battle against global terrorism requires credible justice, which military cornmissions cannot provide...

...Bush's order has attracted harsh criticism abroad and milder challenge at home...

...Although fellow Americans John Walker Lindh and confessed mass murderer Timothy McVeigh enjoyed full legal rights and representation throughout their proceedings, these other Americans are being denied all procedural rights...

...I F INTERNATIONAL LAW allows the United States to redress the unprovoked killing of thousands on September 11 by bombing al-Qaeda perpetrators, what obliges the United States to give captured accused culprits any trial at all...

...Amid this controversy, the practical question remains: given the exigencies created by September 11, what's wrong with the U.S...

...military commissions is a short-sighted strategy that will surely invite hostile foreign governments reciprocally to "try" and execute captured nonuniformed American personnel before similar tribunals...

...government were to support such a tribunal, at least two other permanent members of the Security Council—Russia and China—would probably withhold their consent from any judicial body that might pursue trials of Chechen or Uighur rebels whom they have labeled domestic "terrorists...

...Even if such a result could be ensured, the commission's judgments will never be perceived as fair by those skeptical of their political purpose, namely, the very Muslim nations whose continuing support the United States needs to maintain its coalition against terrorism...

...We should not conclude that only international tribunals can grant meaningful justice for international crimes...

...to be tried for violations of the laws of war and other applicable laws by military tribunals...

...Although I have long supported international adjudication, I am skeptical about the international community's ability to overcome existing political obstacles and to create a fair tribunal quickly...

...However detailed its rules and procedures may be, a military commission cannot be an independent court, and its commissioners are not genuinely independent decision makers, but military officers who are ultimately answerable to the very secretary of defense and president who prosecute the cases before them...

...The absence of binding legal protection for the accused's human rights will become particularly acute should military commissions be convened at the United States Naval Base at Guantánamo Bay, Cuba, where DISSENT / Fall 2002 n 59 AGAINST MILITARY TRIBUNALS hundreds are now being held...

...Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance...

...On its face, the order authorizes the Defense Department to dispense with the basic procedural guarantees required by the Bill of Rights, the International Covenant on Civil and Political Rights, and the Third Geneva Convention of 1949, to which the United States is a party...

...Trials promote four legal values that are higher than vengeance: holding the perpetrators accountable for their crimes against humanity...

...military commissions the same way...

...The administration could have pursued a clear and simple division of labor: American civilian prosecutors and judges would try crimes committed against Americans on American soil, while experienced UN and international lawyers would address crimes committed against Afghans on Afghan soil...

...Credible international tribunals can provide credible justice but would be difficult to create under the current political circumstances...

...The answer to this question addresses the most fundamental rule-of-law concerns...

...Constitution granted Congress the power to "define and punish Piracies . . . and Offenses against the Law of Nations," a power Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism...

...Since three al-Qaeda suspects—Zacarias Moussaoui, the "American Taliban" John Walker Lindh (who has now accepted a plea bargain), and the "shoe bomber," Richard Reid—have been brought before U.S...

...And insofar as any of these guarantees—which include the presumption of AGAINST MILITARY TRIBUNALS innocence, the rights to be informed of charges and to equal treatment before the courts, public hearings, independent and impartial decision makers, the rights to speedy trial, confrontation of adverse witnesses, and counsel of one's own choosing, the privilege against selfincrimination, and review by a higher tribunal according to law—are subject to suspension in time of emergency, the Bush administration has taken no formal steps to declare an emergency (or to explain the need for such a declaration...

...Egregious Afghan violators such as Mullah Omar and his close deputies should be given treatment similar to that given brutal rebel leader Foday Sankoh of Sierra Leone: namely, arrest, humanitarian treatment in custody, permanent exclusion from governmental activity, no amnesty for war crimes or crimes against humanity, and eventual trial before the emerging indigenous judicial system...

...In 1994, when large numbers of Cuban boat people were held on Guantánamo, a federal appeals court in Atlanta rendered the extraordinarily broad (and strongly contested) ruling that "these [alien detainees on Guantanamo] are without legal rights that are cognizable in the courts of the United States...

...Recent AGAINST MILITARY TRIBUNALS history shows that building new international tribunals from scratch is slow and expensive and requires arduous negotiations...

...Why should the United States try suspects in military commissions that fall short of the judicial norms to which we are committed, when our own federal courts have repeatedly and fairly tried al-Qaeda members...

...The tactic potentially endangers Americans overseas by undermining the U.S...

...Emphasis added...

...Bush's order is wrong for two simple reasons: first, it undermines the United States' perceived commitment to the rule of law and national judicial institutions at precisely the moment that commitment is most needed here at home...

...Most pertinent, federal prosecutors have successfully tried and convicted in U.S...

...Despite those attacks, both the presidency and Congress have continued to function, yet the order implicitly assumes that the third branch, comprising existing civilian and military courts, can no longer handle the very cases it dealt with just days before the attacks occurred...

...Third-party combatants should have been brought before the competent tribunals mandated by the Geneva Conventions for determination of prisoner-of-war status or sent back to the country of their nationality to face national punishment, after assurances that their trials would strictly observe international due process standards...

...Undermining the Rule of Law The military order's specific legal deficiencies have been cogently summarized in a letter to the chair of the Senate Judiciary Committee signed by more than seven hundred American law professors...

...When the Chinese or Russians try Uighur or Chechen Muslims as terrorists in military courts, U.S...

...By their very nature, military tribunals fail this test...

...This article is taken from a fuller, footnoted version that appeared in the April 2002 issue of the American Journal of International Law, vol...

...Although proponents claim that an international tribunal would be more likely than a U.S...

...moral leadership abroad...

...62 n DISSENT / Fall 2002...

...court to be viewed as impartial, an ad hoc tribunal created for the express purpose of trying the September 11 terrorists would not find greater acceptance in the Muslim world than the judgments of a civilian court system that has been in place for more than two centuries...

...Absent extant, functioning international tribunals, the most credible justice will be delivered by time-tested domestic institutions, such as the United States' Article III courts and courts-martial...

...The military order undermines each of these values...

...courts more than twenty-five members or affiliates of al-Qaeda, the very terrorist group now charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and two U.S...

...reaffirming the norms of civilized society...

...This history made even more surprising President George W. Bush's military order of November 13, 2001, which, without congressional authorization or consultation, suddenly declared that 'No protect the United States and its citizens, . . . it is necessary for [nonciti58 n DISSENT / Fall 2002 zen suspects designated by the president under the order...

...and demonstrating that law-abiding societies, unlike terrorists, respect human rights by channeling retribution into criminal punishment for even the most heinous outlaws...

...The more the department tries to address the perceived unfairness of military tribunals by making them more "court-like"—more transparent, with more procedural protections, and more independent decision makers —the more these modifications will eliminate the supposed "practical" advantages of having military tribunals in the first place, and still not dispel the fatal global perception of unfairness...

...government would never have brought any captives to Guantánamo, where hundreds are languishing in what now seems to be prolonged indefinite detention...

...Such blending of functions in one branch of the Government," Justice Hugo Black recognized, "is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers...

...96, p. 337...