This war is full of surprises. And among the strangest so far has been the reaction to President Bush’s decision to establish military tribunals to try certain terrorist suspects. To our knowledge, none have so far been held. Procedures are still being worked out by a Defense Department that regards the assignment with considerably less than total enthusiasm. Only suspects designated by the president would be so tried. Only non-citizens would be subject to the tribunals’ jurisdiction. Trials might be secret, but not necessarily. And yet, critics left and right have already dismissed the tribunals as disasters waiting to happen, and worse.
One objection is that non-citizens suspected of terrorism are constitutionally entitled to the full protection of the civilian legal system no matter where they are. Another is that military tribunals will cause us to lose respect in the eyes of the world community. A third is that the military justice system is composed of incompetents, or bloodthirsty executioners, or both. A fourth is the “slippery slope” canard accept military tribunals for non-citizens today and it’s Big Brother for us all tomorrow.
Of greater interest here is why so many Americans, including conservatives, presume that because the trials will be military they must also be, as William Safire sneers, “kangaroo courts,” or that the tribunals are (as Nat Hentoff suggests) somehow “un-American.”
In fact, the military may be better suited than the civilian system to evolve into a system that will render justice in a prolonged war for which the laws have yet to be written. Such an evolution would be more than desirable. It would also be a very American way of doing things.
Courts come in two varieties: courts of general jurisdiction and specialty courts. The former handle whatever comes their way. These were the courts that tried Ahmed Ressam, the African embassy bombers and the crew responsible for the 1993 World Trade Center attack. No other courts were available and no existing civilian criminal law could be stretched to cover their acts of war. But when the matters to be adjudicated become highly complex and perhaps unique, and the caseload increases, specialty courts are sometimes established family courts, bankruptcy courts, tax courts and administrative courts of many kinds, to cite a few. These develop their own procedures and standards. What’s fair and effective in one may not work in another.
The United States must develop a system of specialized courts to handle the judicial aspects of the international terrorist threat. The question is, should these new courts evolve out of the military or the civilian systems? Both logic and common sense indicate that they should evolve out of the military system, but should not remain there.
The military justice system is a structure of specialty courts, designed for the unique needs of those whose business is war. It is intended primarily to discipline and judge its own, not the enemy. But its structure lends itself to dealing with enemies far more efficiently, and in some ways more fairly than does the civilian system. A few examples.
Unlike the Nuremberg or Hague tribunals, we’re dealing with a still very dangerous set of enemies. These trials may go on for decades and affect the war itself. Protection of sensitive information, intelligence sources and procedures entails more than secret proceedings. It also requires court members and counsel with adequate security clearances. These can take years to generate, and many civilian lawyers and judges might not even qualify. Only the military can provide the requisite numbers, short-term. The best civilian lawyer is useless if he or she can’t access the data. (It happened last year in a case involving some Iraqis whom the Immigration and Naturalization Service wanted to deport, but who claimed they’d been CIA operatives.)
Also, procedures work both ways. Less rigid standards concerning the admissibility of evidence can benefit defendants. The ability to convict by a two-thirds vote might seem draconian, but civilian jury unanimity can also work against justice by letting the guilty walk. Military courts may exhibit less tolerance for the kinds of histrionics and manipulation that have less to do with justice than with sharp practice. The strategy of endless appeals, ditto. In fact, numerous legal scholars, civilian attorneys and judges (sickened by spectacles such as the O.J. carnival) have recommended reforms that would move civilian procedures closer to their military counterparts.
Still, the key word here is “evolve.” In time, Congress should evaluate the performance of the military tribunals and use the lessons learned to charter a unique court system. These courts will deal with acts that constitute neither war nor criminality, as the law traditionally defines them. It should be a civilian court system with military participation when and as required, and with serious oversight provided by a board of jurists, military and intelligence officers, and possibly representatives from allied nations whose regular cooperation we need and who should be encouraged to set up special tribunals of their own.
As for those who oppose the present arrangements, they might consider easing up on the alarmism and invective and helping this necessary evolution to come about.
Philip Gold is a senior fellow in national security affairs at the Seattle-based Discovery Institute.