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Marching The War On Terrorism Towards Injustice:
Military Tribunals And Constitutional Tunnels

Peter A. Schey

The Nov. 13 Military Order

On November 13 President Bush signed a Military Order which, for the first time in the nation's history, permits trial and conviction by military tribunals in the cases of suspected terrorists whose acts cause injury to or have an "adverse effect" on the United States' national security, foreign policy, or economy. The executive order, which excludes only U.S. citizens, allows suspected terrorists to be arrested within the United States or anywhere else in the world, and then tried for "violations of the laws" by "military tribunals" established by the Secretary of Defense. These tribunals may be held in the United States or abroad.

The Military Order says nothing about a presumption of innocence. All evidence having "probative value to a reasonable person" may used in such tribunals to arrive at a conviction, seemingly including confessions obtained by torture or threats of torture or death. There is no right to a trial by jury. The judges will be U.S. military officers, and a conviction may be secured by a vote of two-thirds of the officers presiding over the trial. There is no requirement that the judges be lawyers, or have any legal training. There is no right to appeal. Sentences may include "life imprisonment or death." Under such circumstances there is a significant possibility innocent people will be convicted and executed, perhaps even for military or foreign policy reasons, and an equally significant possibility such wrongful convictions and executions will never be made public.

The federal courts have shown they are capable of holding fair trials in cases involving terrorism against the United States. Following full trials which by all appearances conformed to constitutional norms, convictions were recently secured in the federal courts against several defendants charged in the 1998 bombings of the two American embassies in Africa and in the first attempt to attack the World Trade Center. Despite the ability of the federal courts to handle terrorist cases, a person convicted in a tribunal under President Bush's Military Order "shall not be privileged to seek any remedy ... directly or indirectly ... in any court of the United States, any court of any foreign nation, or any international tribunal." Convictions and sentences may be reviewed only by the President, or if he so designates, the Secretary of Defense. In short, the President or his military designees will serve as investigator, prosecutor, judge, jury, reviewing court, and executioner. Robert Jackson, the lead American prosecutor at the Nuremberg trials, noted the importance of fair trials regardless of the seriousness of the crimes charged: "To pass those defendants a poisoned chalice is to put it to our lips as well." President Bush's military tribunals may quickly poison accused terrorists, but they will as quickly poison this nation's commitment to due process of law.

We Know Terrorism When We See It

The military tribunals will hold trials for persons suspected of "terrorism" or aiding and abetting terrorism. However, President Bush's Military Order nowhere defines what it means by terrorism. Historically, the U.S. Government has been unwilling to adhere to anything close to an objective and defensible definition of terrorism. It has instead defined terrorism on the basis of geo-political and foreign policy considerations, rather than the seriousness of crimes against humanity actually committed.

When it was in the U.S. Government's geo-political interest to support bin Laden's fight against the Soviet armed forces in Afghanistan, the U.S. Government did so without regard to how many innocent people his organization killed. Before 1999, the U.S. Government designated the Kosovo Liberation Army a terrorist organization. Once NATO's war against Yugoslav President Slobodan Milosevic got started, the U.S. and NATO quickly aligned themselves with the KLA. Nelson Mandela and his African National Congress were treated as terrorists until about 1990, when the apartheid regime in South Africa and the U.S. Government finally decided it was time to release him from prison and begin treating him as the future President of South Africa. Any serious fight against terrorism must begin with a principled definition of terrorism, one based upon crimes committed against humanity, not geo-political expediency.

U.S. law offers as little guidance to a principled definition of terrorism. Under the Anti-Terrorism and Effective Death Penalty Act of 1996, terrorism is essentially defined as the use of any force or violence to achieve a political aim. A defensible definition of terrorism must not only define the conduct and motives which make up the act, but also take into account that under well-established international law people have rights of self-determination and independence. These rights may legitimately be defended by engaging in armed struggles, including struggles of national liberation. Currently, U.S. law entirely ignores the international right to engage in armed struggle against dictatorial regimes or those which engage in gross violations of human rights. Thus, for example, under the Military Order a long-time U.S. lawful permanent resident alien who raised funds for ("aided or abetted") the Kosovo Liberation Army, which fought the security forces of former Yugoslav President Slobodan Milosevic, could be ucted by a handful of soldiers. Conviction could rely on a finding that the accused's acts had an "adverse effect" on U.S. "foreign policy." Since the Northern Alliance has clearly used violence to overthrow the Taliban, these acts are defined as terrorism under U.S. law, and an Afghani lawful resident who aided the NA with funds could be tried in a secret military court if his support for the group was viewed as having an "adverse effect" on foreign policy--perhaps by encouraging the Northern Alliance to capture Kabul too quickly.

In any event, under the terms of the Military Order, how the President and to the extent he is permitted to do so the Secretary of State, define terrorism will certainly not be reviewable by any court of law. In this constitutionally undeclared war, the executive has unilaterally excised out the judiciary on its journey of frontier justice.

The 1866 Milligan case

It has been over 100 years since a U.S. President sought to establish Military Tribunals for crimes not committed during a declared state of war. In Ex parte Milligan, 71 U.S. 2 (1866), the Supreme Court addressed the habeas corpus petition of Lambdin Milligan, an Indiana lawyer who allegedly joined a secret group planning to free Confederate prisoners. Milligan and others were arrested, tried, convicted and sentenced to death by military officers. The Supreme Court agreed with Milligan's appeal, unanimously concluding that "the power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety."

The Court observed that "[b]y the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people." The decision reviewed the drafting and adoption of the Constitution, and the authors' expressed concern that in troublous times when people took extreme measures to accomplish political ends, "the principles of constitutional liberty would be in peril unless established by irrepealable law." The Constitution is a law for rulers and people, "equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances." The Court warned that permitting departure from the Constitution during times of national crisis leads directly to "despotism," and hopefully soundly understood that "the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence." As long as the federal courts were "open and their process unobstructed," the president possessed no right to eliminate their role in government by authorizing the use of military tribunals under the president's command. While Milligan was a citizen, and President Bush's Military Order targets only non-citizens, no federal court has ever held that non-citizens charged with crimes are entitled to less constitutional protections than citizens. The point of criminal justice is to do justice on the basis of a person's crimes, not their immigration status. Bin Laden's immigration status in Afghanistan will be completely irrelevant to any charges of global terrorism he may ever face.

The 1942 German saboteurs case

Administration officials defend President Bush's Military Order on the basis of a more recent Supreme Court decision refusing to block the execution of six German nationals who entered the U.S. in 1942 to commit acts of sabotage. On June 13, 1942, four saboteurs were dropped off by a German submarine on a beach near Amagansett, Long Island, New York, carrying false identity papers, explosives, and a large amount of money. On June 17, 1942, a similar group landed on Ponte Vedra Beach, near Jacksonville, Florida. Within days, two of the saboteurs called the FBI from the Mayflower Hotel in Washington, DC and said they wanted to turn themselves in. Within two weeks all the saboteurs were arrested, and within a month tried before a Military Commission, found guilty, and the six non-cooperating defendants sentenced to death. Meeting in a special session, the Supreme Court rejected an appeal that the Germans were entitled to be tried in a civil court. The Court decided that "lawful combatants" during a declared war were entitled to be detained as prisoners of war. However, "unlawful combatants"--those who enter the territory of a state at war to engage in acts of sabotage--are subject to trial in military courts.

The Bush Administration argues that "terrorists" are the functional equivalent of "unlawful combatants." This position ignores the fact that the 1942 German saboteurs worked for an "enemy" state against which, under Article 1, section 8 of the Constitution, the United States Congress had declared a constitutional war. President Bush has the moral authority to declare a "war" on drugs, pornography, poverty, or terrorism, but this is obviously not the same thing the founding fathers had in mind when they adopted a constitution which leaves the power to declare war solely to the Congress. Based on the domestic and international laws on which it relied, the Supreme Court would not have permitted military trials of the eight German saboteurs were it not for the fact the country was at war with Germany, the saboteurs were soldiers who entered the country for sabotage, and they could be defined under law as "unlawful combatants."

The federal courts clearly possess and have exercised the power to restrict public disclosure of sensitive evidence that would, for example, harm a confidential source. The courts also possess and have exercised the power to detain defendants without bond pending trial if their release would cause harm to the national security or endanger the community. The Supreme Court has also limited the scope of the Fourth Amendment in searches or arrests conducted abroad. A terrorist apprehended abroad is unlikely to ever win acquittal in a U.S. court because he was searched or arrested without a proper warrant, or was not read his Miranda rights before making a statement.

Aligning the U.S. with the world's secular and religious dictatorships

If the Military Order signed by President Bush is implemented, the United States will hardly be in a position to complain about similar treatment afforded U.S. citizens or foreign nationals accused of "terrorism" by dictatorships or military governments abroad. This year the U.S. State Department complained that defendants in Iran "continued to be tried and sentenced to death in the absence of sufficient procedural safeguards" for crimes such as "attempts against the security of the State." The Department's annual human rights report complained because trials were held in secret before "Revolutionary Courts," and "the court system is not independent and is subject to government .... influence." How would President Bush distinguish Iran's Revolutionary Courts from the secret military tribunals his Military Order establishes? Iran recently charged 13 Jews with espionage on behalf of Israel, an offense punishable by death. This year, after a secret trial criticized by governments around the world, 10 of the 13 were convicted and received prison sentences ranging from 4 to 13 years. How can the U.S. Government continue to object to these trials and sentences if it seeks to follow the Iranian model of justice in national security cases?

Use of secret military tribunals to try and sentence suspected terrorists will encourage speculation that the U.S. Government "fixed" or prejudged the outcome of such cases, and had little confidence in the reliability of its evidence from the beginning. Failure to refer defendants arrested in the U.S. to the courts can only be seen as a complete lack of faith in the judicial branch of government. Similarly, failure to refer defendants apprehended abroad to an international tribunal will call into question the U.S. Government's selective commitment to such institutions, depending on who the defendant is and who he committed crimes against. Under President Bush's approach, Slobodan Milosevic should have been tried and sentenced to death in a secret court in Yugoslavia, rather than being sent to an international court for adjudication of his guilt and appropriate sentencing. There is clear precedent for the United Nations Security Council to establish an international tribunal to address terrorism and crimes against humanity as was done to deal with war crimes in the Balkans.

Abandoning the rule of law

The attacks of September 11 were major crimes against humanity. Shortly after the attacks took place, President Bush and other top U.S. officials called for "justice," and repeatedly stated the perpetrators and those who aided them should be "brought to justice." But over the following weeks the calls for justice turned to calls for revenge and war. The rules of justice were tossed out as the President called for Bin Laden's capture, "dead or alive," just like those old "Wild West posters." The rules of justice were tossed out as hundreds of innocent people were jailed without charges, access to legal counsel, or access to the courts. The rules of justice were abandoned when likely hundreds of innocent Afghanis were killed in the war to topple those who oppressed them, and, of course, to find Bin Laden. The rules of justice have been suspended as the U.S. Government uses the United Nations in an effort to patch together a post-Taliban government, but makes clear it will act unilaterally when it arrests, tries and sentences suspected terrorists in its new secret Military Tribunals.

The issue is not so much whether Osama bin Laden or terrorists deserve constitutional protections if and when they are ever brought to justice. The issue is whether this nation should adhere to basic constitutional principles when it is most difficult to do so. For over two hundred years the United States has sought to balance the executive, legislative and judicial powers the framers devised in the Constitution. By affixing his signature to the Military Order of November 13, President Bush has jettisoned this long history of constitutional law, and in its place introduced secret tribunals many dictators would warmly embrace.

Now the U.S. can have secret military tribunals for alleged terrorist offenses against the security of the country, or even its foreign policy, or its economy, just as General Augusto Pinochet did in Chile, the fundamentalist-driven Revolutionary Courts do in Iran, Slobodan Milosevic did until recently in Yugoslavia, and the Taliban did until about a week ago in Afghanistan. The final success or failure of the new war on terrorism may in the long run stand or fall on the extent to which the Constitution is embraced or over-ridden. And even if a constitutional judicial process is permitted to function, it will do so in frustration as long as the political branches of Government refuse to adopt a principled definition of terrorism and instead base their decisions more on geo-political considerations than measures of crimes against humanity. There can be no principled war against terrorism as long as the U.S. Government assumes that violence against innocent people may be justified in some circumstances when such acts benefit the national security, the foreign policy, or the economy of the United States.

Peter Schey is President of the Center for Human Rights and Constitutional Law. He has been involved in cases involving military courts, the use of secret evidence, the War Powers Act, and the victims of political violence.

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