THE CRITICS ARE WRONG:
Why President Bush's Decision To Bring Foreign Terrorists To Justice Before Military Tribunals Should Not Offend Civil Libertarians

By JOHN DEAN
Friday, Nov. 23, 2001

I have been surprised at the vehemence of critics' reactions to President Bush's proposed use of military tribunals to bring accused al-Qaeda terrorists to justice. It is not only that I support the use of tribunals – which I suggested in an earlier column might be the right solution. It is also that I believe the adamant critics of the tribunals are working under the wrong framework. While their concern for civil liberties is admirable (and I share it), it is also misplaced.

The critics suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals – but that makes little sense. Many of these critics earlier called for a military response to terrorism. Now they want to demilitarize it.

In effect, what the critics of military tribunals would have the President do is turn enemy belligerents over to civilian law enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.

Wars, including this war, are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.

To take a clear example, Secretary of Defense Rumsfeld's current "take no prisoners" policy for the war in Afghanistan could get him a jail sentence if he were a police chief. But most people see it as an inevitable byproduct of our having limited numbers of Special Forces troops in Afghanistan, who are not equipped to handle POWs, and of the fact that we are dealing with Taliban and al-Qaeda members who have a suicide ethic and will take others with them if they can.

Congress has formally declared war only four times: in 1812 against Britain, in 1898 against Spain, and for both the First and Second World Wars. Nonetheless, the United States is engaged in the legal equivalent of a formally declared war, as it did in Korea, Vietnam and Kuwait.

Indeed, a war declaration would certainly have been made, in the days after September 11, had the enemy been known. As Senator John Breaux, a Democrat from Louisiana, noted, "you can't just go off and [formally] declare war when you don't know who you are declaring war against."

And while no declaration of war issued, Congress did authorize President Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." By doing so, Congress provided the legal and practical equivalent of a formal declaration of war.

House Judiciary Committee member and former U.S. Attorney Bob Barr, a Republican Representative from Georgia, appreciates the legal difference between a military action and a law enforcement activity. When Congress authorized the use of military force, he stated appropriately: "We are not interested in reading them [the terrorists and those harboring them] their rights. We are interested in taking them out, lock, stock, barrel, root, limb."

We have deployed soldiers, not peace officers. And although we are fighting terrorism with both a military and law enforcement response, these activities should not be confused or conflated. In all past American wars, our law enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different -- or the reverse -- this time.

In committing the country to fight terrorism with armed forces, we have not created a new national police force. Yet opponents of military tribunals simply ignore the conspicuous differences between the traditional methods employed by law enforcement to resolve problems, and military solutions. For that reason, I find most of the condemnation baseless or fallacious. A few examples make the point.

These Are Not Kangaroo Courts

Since Safire is a stickler for word usage, I checked Sylvia Cole's and Abraham H. Lass's Cultural and Historical Allusions: From the Middle Ages Through the 20th Century. They report that "a kangaroo court is a hastily convened tribunal that metes out arbitrary and summary justice, or rather injustice." Dictionaries (I checked three) have similar definitions.

However defined, Safire's charge is unjustified because the president is not setting up courts, nor did he act hastily. As the Supreme Court stated in Ex Parte Quirin, "military tribunals … are not courts in the sense of the Judiciary Article [of the Constitution]." Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.

There is nothing hasty about this military order, which has been in the works for two months. Clearly, it has been reviewed by attorneys in the Department of Justice, the Department of Defense, and the White House.

But more importantly, it is merely the first step, for the order directs the Secretary of Defense to promulgate the rules and procedures for the military tribunals. Setting rules and procedures is antithetical to offering the "arbitrary and summary justice" that is the hallmark of a true kangaroo court.

My reading of the order is narrower than Safire's, who concluded that "non-citizens who the president need only claim 'reason to believe' are members of terrorist organizations." But another Writ columnist, Trevor Morrison, whose judgment I respect, reads it as Safire does.

What is not clear to me is whether the President intends to focus only on non-citizens who are or were members of "al Qaeda" and who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism" against the United States. Or whether he would bring al Qaeda members and all other terrorists before tribunals.

It is clear, however that the order would include non-citizens who "knowingly harbor" such persons that can be tried by a military tribunal. Those who knowingly harbor -- that is shelter, protect, hide, or conceal these war criminals from being caught -- in effect become accessories after the fact.

Hopefully, Secretary Rumsfeld's implementing rules and regulations will clear up any and all potential confusion in the order. Indeed, if it covers all terrorists, why single out al Qaeda, and what is the penalty for being a member, since there is no law on point. But if the order, in fact, covers all terrorists I understand why civil libertarians are distressed.

Criticizing Procedures That Have Not Even Yet Been Set

To the contrary, I'm a proponent and I've never said any of those things. Nor do I know any supporter who has adopted such a devil-may-care approach. Actually, it remains unclear what these inchoate panels can and cannot do. Not only are they still being formed, but also the law is unclear.

Because these military tribunals are not courts, and because they have been used since before the Constitution was adopted, there are unresolved issues relating to the application of the Constitution. In Quirin the Court noted, "We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission," even for infractions "punishable by death."

The Fifth Amendment guarantees the right to indictment by a grand jury, prohibits double jeopardy, protects against compulsory self-incrimination, and guarantees due process of law. The Sixth Amendment provides for the defendant to be afforded a speedy and public trial, to have the benefit of an impartial jury venued where the crime was committed, to be informed of the accusations against him, to be confronted by witnesses against him, to be able to use compulsory process to obtain favorable witnesses, and to have the assistance of counsel.

Whether or not the Constitution forces the President to allow defendants brought before the military tribunal these rights, it is likely the Defense Secretary will choose to set up procedures that respect all, or virtually all of these rights (the public trial right may be an exception). Indeed, President Bush's order makes clear that he wants due process and the right to counsel for terrorists. Until Secretary Rumsfeld issues his rules and procedures, it will not be clear which other provisions of the Constitution may be made part of the proceedings.

So far, Ex Parte Quirin suggests only one question regarding the constitutionality of the President Bush's order: Did the President need Congressional approval before issuing it?

Congressional Criticism

Certainly some members of Congress have criticized the order – and might have withheld their approval had it been put before them. For example, Senator Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, said the order "sends a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Leahy also complained that the administration did not consult with Congress before acting. He plans to hold hearings soon, which will certainly address whether the President needed Congressional approval.

The fact is, though, that wartime Presidents often act, in their capacity as Commander-in-Chief, without Congressional approval. The military authority of the Congress vis-à-vis the President is not clearly defined, and the Supreme Court generally seeks to stay out of these political disputes. According to the Bush Administration, the President acted promptly – without going through Congress – in order to make sure they had military tribunals in place should Osama bin Laden or his compatriots be captured.

The Supreme Court stated in Application of Yamashita that "[t]he trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice …." The Court also added that "[t]he war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced." The act of Congress underlying Yamashita, the Articles of War, is now the UCMJ.

There can be little doubt that President Bush has acted just as his predecessors did, namely Abraham Lincoln and Franklin D. Roosevelt. Congress had already given its approval for his actions, through these prior statutes; if it seeks to retain the power to approve each military tribunal order of each President, it must first repeal the applicable provisions of the UCMJ.

Secret Proceedings For Terrorists?

Until Rumsfeld implements the President's order, it is not possible to know whether the proceedings will all be secret. No doubt many will be closed, while others may be open. A powerful argument can be made that the Nuremberg military trials following WW II, which were public, truly showed the world the evils of the Third Reich.

These proceedings established the despicable offenses of the Nazis, showed their warped mentality, and left no doubt in anyone's mind that those who were executed were treated far more justly than their innocent holocaust victims.

Much could be learned about terrorism from open proceedings. Secret proceedings are always fraught with problems. They have a way of coming back to haunt history.

For example, the secret trials of the eight Nazi saboteurs who arrived on the Atlantic shores of New York and Florida during World War II were used to mislead Americans. The arrest of these Nazis was given much publicity by the FBI. Director J. Edgar Hoover had the world believing that his intrepid and invincible G-men had caught the Nazi spies as they had arrived – law enforcement at its best. Today we know this was not true.

In fact, Hoover, along with Attorney General Francis Biddle, had made a deal with one of the eight men, George Dasch – who had turned everyone in within days of their arrival in the United States. Dasch, who had lived in the United States and was married to an American, had joined the Nazis as a means of escaping Nazi Germany. He had planned from the outset to foil their sabotage, and turn everyone in to the authorities. Thus, the story of the spies did not reflect the efficacy of law enforcement; rather, it reflected a single individual's actions and decisions.

To prevent this truth from coming out, Hoover and Biddle promised Dasch that if he pled guilty, he would be pardoned by the President within six months. He agreed. Thus, when the seven others appealed to the Supreme Court, in the landmark case Ex Parte Quirin that I have discussed above, Dasch did not join them.

Dasch served six years before President Truman released him in 1948, on the condition that he would go back to Germany. But Hoover, outraged that Truman had let Dasch (and potentially his secret) out of prison, snatched Dasch at the prison gate and whisked him out of the country before he could tell his story. It took decades for the true facts to come to light.

There is a small plaque on the wall of the Fifth Floor at the Department of Justice, not far from the Attorney General's office, commemorating those secret proceedings. Francis Biddle himself prosecuted the case. It is that plaque that gave former Attorney General William P. Barr the idea of using military tribunals to bring terrorists to justice following the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

While it did not work out in 1988, William Barr did not forget. I understand that following the September 11th attacks, this former Attorney General suggested to the Bush Administration that they consider using military tribunals. This is the genesis of these tribunals.

That plaque in the Justice Department should also be a reminder that secret proceedings can result in misusing, if not abusing, enemies as well. George Dasch's case is a cautionary tale. Had the press been able to tell Dasch's story at the time, Hoover might have been forced to keep his promise, not to mention shown as the deceitful blow-hard he proved to be.

Not All Secrecy Is Bad

A close reading of President Bush's order suggests that the principal reason for secrecy is concern about compromising classified intelligence sources.

Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source – be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source that might provoke an international incident. But with suspected terrorists, the prosecutions are simply too important to be dropped due to fears of disclosing intelligence sources.

The President's order would protect such sources. At a military trial, such information could be provided the officers hearing the case; it could not, however, be given to a lay jury in a civil trial, due to the security risks. (As I discussed in my prior column on tribunals, jury service on a terrorist trial involving al Qaeda would also be a nightmare for jurors – with some potentially having to go into the Witness Protection Program).

Such sources might help with convictions – and they might also exonerate suspects. Either way, we need factfinders who can hear about these intelligence sources, and keep them secret, and that means we need a military proceeding.

Both Bill Safire and Senator Leahy have been critical of the provision in Bush's order providing for convicting and imposition of even a death sentence upon a less than unanimous vote of the tribunal. The President wants conviction and the death penalty with a two-thirds vote. I agree with this complaint – though it should not necessarily be a wedge to broader-based criticism of the tribunals. Rather, specific lobbying for amendment of the order to require unanimity is what is called for.

Normal rules of evidence will not apply to these proceedings, and the panels will surely call on highly experience military officers with a background in the law to sit in judgment of the terrorists. In this context, it would seem only appropriate that the judgments of the panel should be unanimous, particularly before imposing a death sentence.

If an experienced military officer (or several), having heard all possible evidence, dissents, that should be enough. To execute bin Laden, or any terrorists, on less than unanimous verdicts, is going to create serious credibility problems for these tribunals.

Amazingly, Bill Safire's "solution" to the unanimity issue is simply to dispense with military tribunals, and go directly to summary executions, without any due process at all. Safire writes:

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

Safire's bottom line, of course, makes short-shrift of his purported concern for civil liberties. Apparently, he'll give due process, but only if we are unlucky enough not to kill our foe first.

Such thinking only makes clear why we need to carefully work out processes that allow us to give suspected terrorists justice, but to protect ourselves, too. If we do not, we may be tempted to cover up our failures by declining to bring suspects to justice at all. Civilian juries will not work in this context, but that does not mean that we cannot create fair processes. And any process is fairer than dropping bombs simply to eliminate these problems.

The lack of a requirement for unanimity in death penalty cases is the only serious flaw I find (so far) in the President's plan. But stay tuned. Secretary Rumsfeld must fill in the blanks of the President's order, and the Senate Judiciary Committee is going to have a lot of questions. We should all want these questions answered before any of the hundreds of suspects being held around the world, and awaiting trial, go before any military tribunal.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States. Note: When first writing about this subject on September 28, Mr. Dean mentioned a law journal article which he had found most informative on this topic. The Oklahoma City Law School has now thoughtfully made it available for Writ readers.

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