Terrorists and the Law of War
MARCUS, JEROME M.
Terrorists and the Law of War The case for military tribunals. BY JEROME M. MARCUS THE FRENCH-MOROCCAN terrorist Zacarias Moussaoui made a series of suspicion-provoking blunders that landed him...
...The Washington Times reported last week of a "private consensus in the administration that capturing bin Laden alive would present the government with major problems...
...Defendants who Jerome M. Marcus, a lawyer in Philadelphia, has worked in the legal adviser's office of the State Department...
...Such tribunals, created by the president and presided over by an officer of the U.S...
...citizens acting as fifth-columnists...
...Some congressional staffers worry about the political impact of a judicial function being carried out by uniformed soldiers rather than robed judges...
...Terrorists would be tried in federal court, where criminal trials are public spectacles...
...Code of Military Justice but also the laws of war themselves—under which a collaborator in the September 11 attack would be considered an unlawful belligerent subject to execution...
...Intelligence sources and methods will be endangered by publication of prosecutors' evidence...
...There is a precedent for military commissions...
...With the blessing of the Supreme Court, one was set up in 1942 to try German saboteurs...
...Once it does, defendants are entitled to see all the government's evidence against them...
...That's a bad thing...
...A jury of American soldiers hears the evidence...
...It's also beginning to warp America's military plans...
...Congressional researchers are now looking into whether commissions can adjudicate the guilt of U.S...
...With that move, the Bush administration has telegraphed its approach to the terrorists it takes into custody...
...Otherwise, the 33-year-old Moussaoui would likely have been a "fifth hijacker" on board United Flight 93, which crashed into the Pennsylvania countryside on September 11...
...But there is a political benefit as well: Prosecuting terrorists, and those who actively help them, for murdering noncombatants—rather than for money laundering, or overstaying a visa—will put at center stage, the way no criminal trial can, the ultimate vileness of their deeds...
...No formal declaration of war would be necessary to establish such tribunals, since they can be empaneled to apply not only the U.S...
...In other words, a criminal-trial strategy will force us to choose between punishing those who have committed mass murder in the past and monitoring those who will do so in the future...
...Such a system is inappropriate for bringing terrorists to justice...
...Whether the president's inherent constitutional authority as commander in chief permits him to call military trials without congressional approval is a question worthy of litigation...
...The Justice Department hinted last week that it would indict him...
...Beyond that, it is not crystal clear how military commissions would work in a terrorist context...
...Armed Forces, sit to determine whether a defendant has violated the laws of war...
...They include having to divulge intelligence sources and methods at a trial...
...BY JEROME M. MARCUS THE FRENCH-MOROCCAN terrorist Zacarias Moussaoui made a series of suspicion-provoking blunders that landed him in a Minnesota jail in mid August...
...Until we come up with a better way of doing things, we risk watching known terrorist accomplices stonewall prosecutors and get away with a slap on the wrist for visa infractions...
...A small measure of protection against intelligence leaks is offered by the Classified Information Procedure Act—but only before a case goes to trial...
...The Justice Department's Office of Legal Counsel has tapped one of its lawyers to research the pros and cons of military commissions...
...They can thereby get their stories straight and share intelligence that will keep accomplices from getting arrested in the first place...
...But there is a way out: military commissions...
...But if, as seems likely, Congress would bless such commissions, this nice constitutional question needn't arise...
...So the government will have to choose between (a) going to trial without its best evidence, (b) charging only those lesser offenses for which such evidence is unnecessary, and (c) dropping a case altogether...
...Military officers represent both the prosecution and the defense...
...Political obstacles to such commissions are likely to be more theoretical than real...
...they are also wondering whether such tribunals can sit outside the United States, to try terrorist leaders caught in Afghanistan or elsewhere...
...claim a "shared interest" can communicate secretly with one another through their lawyers...
...It will treat them not as a military threat but as a criminal ring to be dealt with in normal criminal trials...
Vol. 7 • November 2001 • No. 10
