Military, not federal, trials for terrorists
By Doug W. Kmiec
Douglas W. Kmiec, Dean & St. Thomas More Professor
But here is question: do we really intend to bring bin Laden and his confederates to trial as if he were a common thief or murderer - times, of course, several thousand?
As sensible as it may be to expand warrant authority in the context of terrorist emergency to include wireless and Internet communication and to raise the penalties for the knowing possession of biological toxins not reasonably necessary for peaceful purposes, it should not be assumed that the terrorist organizations responsible for September 11 should be tried in federal court. This is to confuse war and the crimes of war. Terrorists are neither soldiers (justifying widespread military action against a given nation state) nor garden-variety criminals, meriting federal indictment, they are war criminals.
As the Afghan bombing has proceeded, the nature of the military operations needed to root out these architects of war crime is expensive and prolonged. Of course, it is also open to doubt whether any of the malefactors will be taken alive. But assuming some will, it is far healthier for the rule of law if their ultimate destination and method of punishment is fully understood now, in advance. My former Justice Department colleague and U.S. Attorney General, William Barr, has been quoted as saying "[t]here's a basic tension as to whether to treat this as a law enforcement issue or a national security/military issue."
Barr suggests that we "[f]ind these people and demolish them." That may happen on the field of battle, but if it does not and we apprehend them instead, my suggested destination would be a military tribunal, not the U.S. District Court. By definition, terrorism is aimed at indiscriminately killing civilian innocents and destroying civilian property. Such actions are not crimes against a single state, but humanity. Terrorism is not some social or cultural dysfunction capable of rehabilitation or rectification by ordinary law enforcement. If terrorism is a military threat, and it is, then the terrorists are more appropriately punished by the system of military tribunals that has a long history in our nation.
By joint resolution, Congress has given President Bush immense authority not only to respond to the events of September 11, but all cooperators in those cowardly actions or "any future act" of international terrorism. The President has not been rash in employing this vast delegation. Given the elusive, shadowy nature of the terrorist face, this is both wise and strategic. Our objective is to punish those who took our brothers and sisters - or in CUA's case a faculty colleague killed in the Pentagon plane - and to root out and deter the instigators of further harm. Initially, this is best accomplished by a partial or targeted declaration of war, not against Afghanistan, itself, but the terrorists resident there, or anywhere. As long ago as 1801 in Talbot v. Seeman, Chief Justice Marshall held that: "Congress may authorize general hostilities . . . or partial [war], in which case the laws of war, so far as they actually apply to our situation, must be noticed."
What would noticing the laws of war mean in this instance? First and foremost, that when our special commando forces or international allies seize Mr. Bin Laden and company, these marauders would not be afforded the same extensive constitutional due process protections as prevail in federal court. Instead, he and his accessories would be brought before military tribunals governed by the straightforward standard of admitting all probative and relevant evidence. Thus, neither the hearsay rule (which has bedeviled prior terrorist trials in federal court because of the
disappearance or unreachablility of direct witnesses) nor other ill-fitting exclusionary rules that have no deterrence-based relevance to this setting would trip up the admission of evidence obtained under the noncoercive, humane interrogation permitted under military regulation. Importantly, these more realistic standards of proof and evidentiary rules will not necessitate disclosing in detail matters - like the identities of informants and the structural nuances of buildings - that may only serve to facilitate subsequent terrorist attack.
A violation of civil liberties? No, simply a recognition of well established precedent. Military belligerents violating the international laws of war are tried before a panel of military officers, not juries of their peers - no matter what the Taliban may seek as a condition. Such military commissions received extensive use in the Civil War, and were affirmed by the Supreme Court in the famous World War II decision sentencing General Tomoyuki Yamashita to hang for the brutal atrocities he ordered against civilians in the Philippines. When Yamishita petitioned the court for habeas corpus, the court rebuffed him stating that the war power delegated by Congress includes administering a system of military justice for the trial and punishment of those combatants who have committed war crimes. No case contradicts this. The Civil War precedent, Ex parte Milligan that nominally questions the availability of military tribunals where civilian courts remain open, was later confined to its unique domestic insurgency facts, and specifically the fact that Milligan was not - in international parlance - an "unlawful belligerent." Terrorists clearly are.
Beyond these precedents, Congress has textual authority under the Constitution, not just to declare war, but "to punish Offenses against the Law of Nations." The punishment of war crimes is thus the responsibility of Congress, not the federal judiciary. Arguably, Congress' joint resolution is ample delegation to the Commander in chief to set up a tribunal for the accusation, trial and punishment of the terrorists involved in the destruction of the World Trade Center and the Pentagon as well as the related killings in Pennsylvania.
Since the procedures in these tribunals need not be either those of the federal rules nor the Uniform Code of Military Justice, which is applicable to regular soldiers, and by international law, comparable enemy combatants in uniform, would a military commission just be a sham or stacked deck against the terrorists? History suggests otherwise. Commissioned officers in the Nuremberg trials successfully differentiated between those who were the architects of the Holocaust and those of lesser complicity. So too, exclusively U.S. military tribunals trying Nazi war criminals and saboteurs acted similarly restrained after World War II.
And insofar as swift and deliberate justice is a consideration, a military commission, reviewed by commanding officer and via the writ of habeas corpus a likely - but single - stop at the Supreme Court, is certainly far more expeditious than anything comparable in the regular judicial practice.
Of course, can the fugitive terrorists realistically be brought before these tribunals? President Bush says the terrorists can run, but not hide. I believe him. And here is a further thought based upon the little studied constitutional provision allowing "Letters of Marque and Reprisal." Simply put: Congress has the power to grant money prizes for securing the seizure of these at-large terrorists.
The Attorney General has asked Congress for augmented authority to offer rewards for those who may assist in bringing the guilty to justice. It is entirely fitting for the spirit of free market capitalism to result in the capture and punishment of what Sir Edward Coke centuries ago termed "hostis humani generis" - the enemies of all mankind? Caveat hostis humani generis - let the enemies of mankind beware.
An earlier version of this article appeared in National Review on line on October 11, 2001. It is reprinted here with permission.
President Bush seems to concur. He pursued the military tribunal option in late November 2001.