APPROPRIATE JUSTICE FOR TERRORISTS:
Using Military Tribunals Rather Than Criminal Courts

By JOHN DEAN
Friday, Sep. 28, 2001

President Bush and senior administration officials have repeatedly stated that combating terrorism will call for new thinking. We are in a non-traditional war against an unconventional enemy — an enemy who takes abusive advantage of our Constitutional freedoms, including our criminal justice system.

On September 24, Newsweek reported that, to bring terrorists to justice, Department of Justice lawyers are rethinking traditional methods. "Perhaps the most startling idea under examination would be a new presidential order authorizing secret military tribunals to try accused terrorists," the magazine reports.

This may be the time for military tribunals.

Crona and Richardson's Work on Tribunals

Military tribunals were also recommended following the earlier terrorists attacks on the World Trade Center, by Spencer J. Crona and Neal A. Richardson, writing in the 1996 Oklahoma City University Law Review. Crona, a former newspaper editor and attorney in Denver, Colorado, and Richardson, a Deputy District Attorney in the same city, collaborated in presenting a case for such proceedings, which I have highlighted below.

While I have drawn on Crona's and Richardson's scholarly analysis, and considered arguments in this column, I have not been able in this space to do it justice, and it is very much worth reading in its entirety. Indeed, I found the article so helpful that I also passed it on to friend at the Department of Justice, requesting that he pass it on to those currently examining the potential of military tribunals.

A World War II Decision Approving the Use of Military Tribunals

President Lincoln made extensive use of military tribunals during the Civil War, and President Roosevelt used them during World War II.

For example, during the Civil War, Confederate army captain Robert C. Kennedy was captured, tried, and convicted by a military commission. Wearing a civilian disguise, he had sought to disrupt the Union war effort by setting fire to New York City.

Kennedy's case was one of several cited by the U.S. Supreme Court when it addressed this issue in Ex Parte Quirin, which was decided in 1942 in the midst of World War II. In Quirin, the Court confirmed the authority of Congress and the President to try Nazi terrorists operating in the United States by military commissions.

Quirin was one of eight Nazi saboteurs who had crossed the Atlantic in a German submarine: four Nazi operatives landed on Long Island, New York and another four at Ponte Vedra Beach, Florida. The FBI arrested both groups, and turned them over to the military, which promptly tried them.

The Nazis sought to halt the proceedings with habeas corpus petitions, claiming that since the state and federal criminal courts were available, the military tribunal had no jurisdiction. The Supreme Court rejected the claims, and let the military tribunal's convictions of the men for violating the laws of war, spying and conspiracy stand. The Supreme Court noted:

The … enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed … to be offenders against the law of war subject to trial and punishment by military tribunals.

A Post-Civil War Decision Against Military Tribunals

In the course of deciding Quirin, the Supreme Court rejected the precedent of Ex Parte Milligan, on which the Nazi saboteurs had relied.

The high Court's landmark ruling in Ex Parte Milligan was issue in 1866, following the Civil War. Milligan had been convicted by a military commission of violating the laws of war by planning to form a secret military organization to seize an arsenal, release Confederate prisoners, arm them, and then join with others to invade, on behalf of the Confederacy, Indiana, Kentucky, and Illinois.

Sentenced to be hanged for his crimes, Milligan appealed. Five justices held that Congress did not have authority to create military commissions when state courts were open and available. They also found that Milligan had been denied his Sixth Amendment right to a jury trial when he was tried before the commission.

Four justices concurred with the majority ruling, but on different grounds. They rejected the majority's contentions that Congress did not have the power to create such military tribunals, and that such tribunals were bound to follow the Bill of Rights.

Chief Justice Rehnquist's Views

No less an authority than Chief Justice William Rehnquist has addressed the cases of Ex Parte Quirin and Ex Parte Milligan, and the question of military tribunals. The Chief Justice has been prescient before (He wrote a book about impeachment long before he found himself presiding at President Clinton's Senate trial). Now he has turned out to be prescient again: In 1998, he wrote and published All The Laws But One: Civil Liberties in Wartime.

In the book, Rehnquist examines Milligan at some length. Rehnquist notes that the government, which at the time — 1866 — had yet to create the office of Solicitor General, had little experience presenting cases to the Supreme Court. Mr. Milligan, on the other hand, was extremely well represented. In making this contrast, Rehnquist implies that had the government done a better job, it would not have lost the case.

The Chief Justice also reads the ruling in Milligan as limited. He notes that some 75 years later in Quirin "the Court concluded that Milligan … was a non-belligerent, not subject to the law of war."

Finally, if these comments left any doubt about Rehnquist's skepticism about Milligan, Rehnquist resolves it. He writes: "One may fully agree with the rather disparaging but nonetheless insightful argument of Jeremiah Black [attorney for Milligan] in the Milligan case — soldiers are no more occupationally trained to conduct trials than are sailors or sheep drovers — and yet believe that Congress should be able to provide for trial of defendants by a judge without a jury in a carefully limited class of cases dealing with national security in wartime."

Congressional Action Is Necessary

In short, if the most recent decision (Quirin) and the views of the Court's Chief Justice are to be our guide, there appears to be no Constitutional prohibition on the use of military tribunals to address terrorism — especially terrorism of the scope of the September 11 attacks, and terrorism described by the President as an act of war. However, creation of such tribunals would require an act of Congress — as Crona and Richardson recognize.

Congress should pass such an act — in part because terrorism is very different from other crime. For one thing, existing international laws prohibit such activities. As Crona and Richardson note, when terrorist acts of aggression target innocent civilians, they are not "legitimate acts of war under international law, but rather must be regarded as war crimes or crimes against humanity." The 1949 Geneva Conventions prohibit attacks on civilians. And the Geneva Protocol II expressly prohibits "acts of terrorism."

Nevertheless, we have so far treated terrorist as ordinary criminals — charging them with common law crimes, and give them all the protections of our criminal justice system. The 1993 World Trade Center attack, for example, led to indictments that were tried before a judge in the Southern District of New York.

Granted, Congress has not declared war in authorizing President Bush "to use all necessary and appropriate force against" those involved with "the terrorist attacks that occurred on September 11, 2001." But it would trivialize what was done to treat it as ordinary crime.

Using military tribunals, rather than the criminal justice system, to bring such terrorists to justice merits serious consideration at both ends of Pennsylvania Avenue.

Our Criminal Justice System Is Not Appropriate For Terrorists

Crona and Richardson point out that for this type of crime, military tribunals, which are composed of a panel of trained military officers who serve as jury and judge, have many practical advantages over our criminal justice system, which was never designed to deal with war crimes or crimes against humanity. Such tribunals are more efficient, less costly, and more likely to provide swift and sure justice.

As examples, they cite the two criminal trials of the terrorists indicted in the 1993 bombing of the World Trade Center. The first trial required five months of testimony, 207 witnesses, and 1,003 exhibits — not to mention many days of legal arguments and four days of jury deliberations. The second trial, involving the remaining defendants, required over eight months, 200 witnesses, and hundreds of exhibits.

Most troublingly, however, such criminal trials placed the lives of the American citizens who serve as jurors, and their families, in jeopardy of harm from other terrorists. While jurors are purportedly anonymous, in fact they could easily end up living in fear, which would not be unfounded. Witnesses in such cases are, if necessary, placed in the federal witness protection program.

None of these problems exist with military tribunals. Trials without juries are always more efficient. And military officers have accepted the risk of personal harm as a concomitant of their work.

Our criminal justice system, which requires a unanimous finding of guilt beyond a reasonable doubt by twelve jurors, Crona and Richardson note, "is designed to err on the side of letting the guilty go free rather than convicting the innocent. However, when this nation is faced with terrorist attacks that inflict mass murder or hundreds of millions of dollars of damage in a single instance, we can no longer afford procedures that err so heavily on the side of freeing the guilty. Protection of society and the lives of thousands of potential victims becomes paramount."

Military Tribunals Are Not Biased Or Unfair Proceedings

Based on historical evidence, Crona and Richardson argue that using such a military proceeding does not mean stacking the deck against terrorists. To the contrary, they note that the WW II war crimes trials with military tribunals resulted in many acquittals, and point out that for the 177 Nazi officials tried by American military judges, the tribunals issued only 12 death sentences.

In a military tribunal, rules of evidence are not applicable, nor necessary, because trained military jurists can, like other judges, weigh all the evidence. Exclusionary rules, which preclude using evidence improperly obtained (a means for our courts to police the police), have no place in a military proceeding. Thus, before a military tribunal, a known terrorist could not walk because of a legal technicality, such as the arresting officer's failure to give him a Miranda warning.

"The primary purpose of any adjudicative proceeding where a person is accused of a crime," Crona and Richardson write, "is to find the truth as to that person's factual guilt or innocence. The search for the truth in the terrorism arena will be enhanced by the military commission framework." But these authors, and other proponents of military tribunals, are not suggesting that the accused terrorists be denied due process. To the contrary.

Crona and Richardson write: "The pre-eminent question with due process always is, given the circumstances, what is due process?" They believe that military tribunals "provide the process due to those accused of committing terrorist war crimes." They would have the right to counsel, to confront witnesses, dispute evidence, and present evidence in their defense. These authors are merely saying that in times of war, such military proceedings are fair and just.

Those accused of terrorist activities are due no more. If it is necessary to draw a bright line to protect American citizens, the authors suggest (but do not recommend) limiting the jurisdiction of military tribunals to alien terrorists.

Would Terrorists Be Denied Civil Liberties?

The last chapter of Chief Justice Rehnquist's book on civil liberties in wartime is entitled "Inter Arma Silent Leges." According to Black's Law Dictionary, this means, "in times of war the laws are silent." Rehnquist observes that "there remains a sense that there is some truth to [this] maxim." He explains why.

Rehnquist says it is a simple "truism: in time of war the government's authority to restrict civil liberty is greater than in peacetime. … Quite apart from the added authority that the law itself may give the President in time of war, Presidents may act in ways that push their legal authority to its outer limits, if not beyond."

He adds that because judges are often loath to interfere with wartime activities, they often defer decisions until hostilities end. "If the decision is made after hostilities have ceased, it is more likely to favor civil liberty than if made while hostilities continue." To illustrate his point, he contrasts the pro-tribunal Quirin ruling, which was decided at the height of WW II, and the anti-tribunal Milligan holding, which was made after the Civil War had ended.

In short, the Chief Justice tells us that terrorists — like others — will not enjoy the same civil liberties during a war as in peace. Rehnquist concludes that while the laws are not silent in time of war, "they will speak with a somewhat different voice."

In this war, a new law should be passed — a law authorizing the use of military tribunals for suspected terrorists. If many terrorists are involved — as now appears the case — it is difficult to conceive of a more appropriate procedure to bring them to justice.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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