The Military Tribunals on Trial

Among the many defects of President Bush’s order for military commissions to try suspected al-Qaeda members or supporters is that it lumps together at least four categories of persons who have distinct sets of rights under either domestic or international law. The four categories of persons subject to trial by military commissions under the President’s order are: (1) prisoners of war captured in Afghanistan; (2) unlawful combatants arrested in Afghanistan or elsewhere in the world outside the United States; (3) illegal aliens in the United States or aliens who came to the United States legally—as with student or visitor visas—but with the alleged purpose of engaging in terrorism; and (4) legal aliens with permanent resident status who are accused of engaging in terrorist acts.

As written, the order violates, in different ways, the rights of all four categories; it recalls Clemenceau’s famous comment about the Dreyfus case that “military justice is to justice as military music is to music.” Fortunately, public debate over the order has been far more extensive than it has been over the many other violations of rights by the Bush administration since September 11.¹ In consequence, the President’s order is being modified by Defense Department regulations and Jus-tice Department practice. These developments demonstrate that even at a time when a commencement speaker at a university is booed off the stage for giving a talk about constitutional rights,² and when only one member of the US Senate voted against sweeping federal legislation abridging civil liberties,³ it is possible for rights advocates—along with some of the officials within the federal bureaucracy itself—to take on an overwhelmingly popular president and force him and his administration to back away from draconian measures.

The first two categories of people subject to trial—prisoners of war and unlawful combatants arrested outside the United States—derive their rights from international law. The essential difference between the two is that prisoners of war engage in open, announced combat in accordance with the customs of war. Unlawful combatants, on the other hand, attempt to conceal their activities. They include those who disguise themselves as civilians as well as spies, saboteurs, and terrorists. Under international law, in particular the Geneva Conventions, both categories may be tried before military tribunals. It is true that there is no mechanism for international enforcement of the Geneva Conventions other than public pressure. But the conventions set forth clear legal standards that the US has agreed to observe, and failure to do so will be seen as a violation of fundamental international law.

The Third Geneva Convention of August 12, 1949, ratified by the United States Senate on July 6, 1955, defines prisoners of war as:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) that of being commanded a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(Article 4)

In Afghanistan, neither Taliban fighters nor members of the Northern Alliance have worn uniforms. Therefore the requirement of a “fixed distinctive sign” can’t be met literally; but since most of these combatants were not attempting to disguise themselves as civilians pretending to be other than what they were, the lack of uniforms should not prevent those captured in combat from being recognized as prisoners of war. Whether they are Afghans, Pakistanis, Arabs, or of some other nationality is immaterial. It is the kind of combat in which they were engaged that determines their rights.

As written, President Bush’s order does not allow a defendant to be represented by counsel of his own choice, only to have an attorney provided to him. Article 105 of the Third Geneva Convention, on the other hand, states that “the prisoner of war shall be entitled…to defense by a qualified advocate or counsel of his own choice.” Apparently, this conflict with the laws of war is being rectified by regulations drafted by the Defense Department. The New York Times has reported that “under the draft regulations, defendants would have military defense lawyers appointed for them but would also be able to hire civilian lawyers.”⁴

President Bush’s order explicitly prohibits the right of appeal, providing only for “submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the secretary of defense if so designated by me for that purpose.” By contrast, Article 106 of the Third Geneva Convention requires that

Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Here too, the draft regulations are reported to modify the President’s order. As the Times reported,

One administration official said that after the verdict and sentencing by the tribunal, which is to be composed of at least five uniformed officers, a separate three-member panel would review the decisions. The appeal panel would accept arguments and pleas from the defense lawyers and would then make a recommendation to the secretary of defense.⁵

This is a step in the right direction, but it does not meet the standard of Article 106, which would give prisoners of war the same right as American soldiers to take their appeals to US civilian courts after they exhaust their remedies within the military justice system.

It remains to be seen, moreover, whether the regulations will also address such issues as the rights of a prisoner of war under the Geneva Convention to be tried by a tribunal which provides “essential guarantees of independence and impartiality” (Article 84); the right to call witnesses (Article 105); the right to confer with his attorney in private (Article 105); and the right not to be coerced into admitting guilt (Article 99). There is also, according to Article 87, the right not to be “sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.” This last right, of course, sets an important limit on the use of the death penalty.

Though the terms of President Bush’s order could apply to prisoners of war, it appears that its main purpose is to provide a means of bringing to justice unlawful combatants such as those who conspired to blow up the US embassies in East Africa and to hijack planes and use them as weapons on September 11, 2001. The order gives the President exclusive authority to determine that a person “is or was a member” of al-Qaeda; has “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor”; or has “knowingly harbored” such persons. This order is dangerously sweeping. For example, an Irish-American immigrant who participates in a fund-raising event for widows and orphans of those killed in the struggle in Northern Ireland could be hauled before a military tribunal for aiding or abetting international terrorism.

No standards for making such determinations are provided in the order, which explicitly prohibits recourse to any court in order to question the President’s unilateral decisions. Here again, the order runs afoul of the Third Geneva Convention. Though the convention’s purpose is only to protect prisoners of war, it makes the question of whether someone in a doubtful case is entitled to such status subject to determination “by a competent tribunal.” Until that has happened, “such persons shall enjoy the protection of the present Convention” (Article 5). That is, a suspected al-Qaeda terrorist captured in combat in Afghanistan must be treated as a prisoner of war until a court says he is not entitled to such status.

Once a court decides that a prisoner is an unlawful combatant, his rights under international law diminish substantially but they do not entirely disappear. The question of those rights is addressed in the 1977 First Additional Protocol to the Geneva Conventions. Though not ratified by the United States, some provisions of the First Additional Protocol are so widely accepted that they are recognized as expressing norms of customary international law which, for the past century, the United States has accepted as binding.⁶ Among the provisions with the apparent degree of support that qualifies them as customary international law is Article 75, which deals with the due process rights of “persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions.”⁷ The protocol says that, at a minimum, the rights of such persons include trial “by an impartial and regularly constituted court”; “all necessary rights and means of defense”; the right to be “presumed innocent until proved guilty according to law”; the right not to “be compelled to testify against himself”; “the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf”; and the right to “be advised on conviction of his judicial and other remedies.”⁸

In any case, whether people arrested qualify as prisoners of war or not, according to Amnesty International, the housing at Guantánamo Bay of detainees in six-by-eight-foot chain-link “cages” that are “at least partially open to the elements” falls “below minimum standards for humane treatment.”

Neither the Third Geneva Convention nor Article 75 of Protocol I addresses the quality of the evidence that may be used against a defendant. Under the Uniform Code of Military Justice (UCMJ), American soldiers benefit from much the same rules about admissibility of evidence as defendants in our federal civilian courts—except to the limited extent that they and their quarters are subject to search without judicial approval. The UCMJ also explicitly applies to trials of those captured by the United States who are entitled to prisoner of war status. But it appears that the Department of Defense regulations for the new military tribunals will be far more permissive, for example, allowing the use of hearsay testimony. Here the Geneva Conventions and the First Additional Protocol provide no protection for defendants. Both treaties reflect an international consensus on the principles of due process that are universally required; and since the civil law inquisitorial systems of continental Europe and much of the rest of the world are far more tolerant with respect to the admissibility of evidence than the common law–based adversarial system of justice of the United States, no such consensus has emerged. This leaves the authors of the Defense Department regulations unconstrained by international law when it comes to hearsay evidence.

2.

A main source of the controversy over President Bush’s order is its application to aliens in the United States. Hostility to aliens during tense periods has a long history in the US. Attorney General A. Mitchell Palmer rounded up thousands in response to terrorist attacks after World War I (including the bombing of Palmer’s house), and hundreds of radicals were deported—among them, the anarchist leader Emma Goldman—to Soviet Russia.⁹ By drawing a line between citizens and noncitizens in establishing the jurisdiction of the military tribunals, President Bush associates himself with this tradition.

He also pays lip service to the decision by the Supreme Court in the landmark case of Ex parte Milligan, which challenged President Abraham Lincoln’s suspension of habeas corpus during a Civil War trial of a civilian before a military commission. The court ruled that trials before military commissions “can never be applied to citizens…where the courts are open and their process unobstructed”¹⁰ (emphasis added). In making such an argument in order to limit the rights of noncitizens, President Bush reverts to the nativist politics that were in vogue in Congress during the period of Newt Gingrich’s “Contract with America.” He rejects the traditions of American jurisprudence and practice that treat citizens and legal permanent residents of the United States alike except in matters that directly relate to citizenship such as the rights to vote and to run for office. As Justice Harry Blackmun wrote for the Supreme Court in a case involving the denial of welfare benefits to noncitizens, “classifications based on alienage, like those based on nationality or race, are inherently suspect.”¹¹

That does not mean such classifications are never permissible. It does mean they must be justified by a compelling state interest. A case might be made that such an interest justifies treating differently those who can be shown, through fair procedures, to have come to the United States for the express purpose of engaging in terrorism and who cross our borders illegally, or fraudulently obtain a visa, in order to carry out terrorist acts. But to deny 9.3 million permanent residents the right to trial in civilian courts is surely excessive. Such persons might engage in terrorism, but—as with Timothy McVeigh and Terry Nichols—the same is true of American citizens. What compelling state interest justifies treating them differently?

The World War II case in which German aliens came to the United States just to engage in unlawful combat prompted President Franklin D. Roosevelt to establish a military commission. It is widely believed that this was the direct inspiration for President Bush’s order to create such commissions. President Roosevelt’s military commission tried four German saboteurs who came ashore from a U-boat at Amagansett, Long Island, on June 13, 1942, and four more who landed four days later at Ponte Vedra Beach, Florida. Their mission was to blow up rail centers, bridges, locks on the Ohio River, the New York water supply system, and a number of industrial plants. They were quickly arrested and found guilty. The case went to the US Supreme Court, which upheld their convictions.¹² Six of the eight were executed a few days later. The other two were spared electrocution because they had informed on their associates, and were eventually released from prison a few years after the end of the war and repatriated to Germany.

If a similar case arose today, and it was shown through proper procedures that the persons arrested were in fact would-be saboteurs or terrorists, it would be difficult to argue that just because they set foot in the United States they are entitled to all the protections available under the United States Constitution.¹³ Yet President Bush’s order goes too far in the case of such persons, since the order appears to abolish their remedy of habeas corpus, in which they could question a military commission’s jurisdiction. The President’s order states:

With respect to any individual subject to this order—

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in

(i) any court of the United States, or any State thereof,

(ii) any court of any foreign nation, or

(iii) any international tribunal.

Despite this plain language, the President’s counsel, Alberto R. Gonzalez, has contradicted it, writing:

The order preserves judicial review in civilian courts. Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court.¹⁴

Hence, it must be assumed either that the Defense Department regulations will specify that habeas corpus is available to those detained in the US or that Mr. Gonzalez recognizes that, whatever the order says, such a remedy cannot be constitutionally denied by the President. Under the Constitution, habeas corpus may only be suspended “in Cases of Rebellion or Invasion.” Moreover, the passage refer-ring to the suspension of habeas corpus appears in Article I setting forth the powers of Congress rather than in Article II dealing with the authority of the President.

In practice, the Justice Department’s decision to try in a federal court Zacarias Moussaoui, the alleged twentieth hijacker, who was in the United States with only a temporary visa, sets a precedent that makes it seem highly unlikely that efforts will be made to bring any permanent resident before a military commission. To do so would implicitly acknowledge that the case against such a person is too weak to stand up under the scrutiny that the charges against Mr. Moussaoui will receive when he comes to trial. It seems apparent that career prosecutors, who have an excellent record in securing convictions of accused terrorists, insisted on a federal court trial in Moussaoui’s case.

Their victory in this matter is reminiscent of an episode two decades ago when President Reagan took office. His administration came to Washington in 1981 intent on reversing the refusal by the Carter administration to allow the sale of American military equipment to President Augusto Pinochet’s Chile. Among the emissaries dispatched to Santiago to inform Pinochet of the new policy were General Vernon Walters, former deputy director of the CIA, and Jeane Kirkpatrick, the administration’s ambassador to the United Nations. But the sales were blocked by Justice Department prosecutors who relied on a provision of US law barring such sales in the absence of a report certifying

that the Government of Chile is not aiding or abetting international terrorism and has taken appropriate steps to bring to justice by all legal means available in the United States or Chile those indicted by a United States grand jury in connection with the murders of Orlando Letelier and Ronni Moffitt.

Pinochet’s refusal to prosecute or extradite three military officers—including the former commander of his secret police—for those 1976 murders in Washington blocked the Reagan administration from providing the assistance it wished to give him because of the strong stand by Justice Department attorneys who had worked on the Letelier-Moffitt case.

It is possible that the decision to prosecute Moussaoui in federal court has even more sweeping implications. The information that has been made public about him thus far suggests that he may have come to the United States for the express purpose of engaging in terrorism. If that turns out to be the case, one wonders whether any effort will be made to bring any other aliens in the US before a military tribunal, whether in Guantánamo Bay or any other US military bases that have been mentioned as possible sites for trials. At the very least, in view of the decision to prosecute Moussaoui in federal court, the Defense Department regulations should make it clear that permanent residents of the United States are not susceptible to such proceedings.

Though it appears that a number of the issues respecting the lawfulness of President Bush’s order for military commissions are being addressed, there remains the question of whether the commissions are a good idea from the standpoint of international public policy. In at least three respects, plainly they are not. First, there is the question of whether other governments will cooperate with the United States in bringing to trial alleged members of the terrorist network. According to Baltazar Garzon, the Spanish investigative judge who has charged eight men with involvement in the September 11 attacks: “No country in Europe could extradite detainees to the United States if there were any chance they would be put before these military tribunals.” He cited the European Convention on Human Rights, a treaty that is binding on the forty-three member states of the Council of Europe.¹⁵

It is unclear whether the modifications that are being made to President Bush’s order by Defense Department regulations will cause Spain and other foreign governments to allow such extraditions. Probably they will not, since it is the issue of military tribunals per se, as well as their ability to impose the death penalty, that is likely to be objectionable to European countries. If the US cannot secure custody over such persons, the damage to American interests should be clear. Our government will be denied the opportunity to bring criminal proceedings against people who may be part of the conspiracy to commit terrorist attacks. Even if they are guilty, they could go free because prosecutors in Spain, or elsewhere, may not be able to prove their complicity in crimes committed in the United States. In turn, American prosecutors may be deprived of crucial links in a chain of evidence that could implicate others. And the tribunals will further tarnish the reputation of the United States in Europe, where the United States is increasingly regarded as violating human rights because of its use of the death penalty, as well as the shoddy legal representation provided defendants in capital cases in states such as Texas and the high proportion of our population behind bars—approximately seven times as great as in the fifteen countries of the European Union.

Another defect of military tribunals is that their judgments are unlikely to have much legitimacy in the countries that are the probable breeding grounds for international terrorism. We can hardly expect that those who cheered the attacks of September 11 and who lionized Osama bin Laden are going to pay heed to the judgment of any court. But to the extent possible, it is in America’s interest that verdicts against those tried for terrorism should be credible to shopkeepers in Cairo or Jakarta or civil servants in Marrakech, Islamabad, or Dacca. Their opinion should matter to us because Americans are safer in a world in which such people are willing to oppose terrorism. If we want to persuade them that the verdicts are just, military tribunals at Guantánamo are not our best choice.

Military tribunals, moreover, will further erode the effectiveness of the United States as a defender of human rights internationally. Quite aside from the proposed tribunals, the reputation of the US as an advocate of human rights in many parts of the world has in other ways been impaired by some of its post–September 11 policies. Though our intervention in Afghanistan has clearly improved the human rights situation in that country by ending the Taliban’s repressive rule, our current alliances with such regimes as Russia, China, Uzbekistan, and Pakistan have sharply limited our capacity to speak out about their abuses. This is especially true when the victims can be linked, however tenuously, to al-Qaeda, whether the Chechens in Russia, the Uighurs in China, and the thousands of Islamists in President Islam Karimov’s viciously brutal prisons in Uzbekistan.

By establishing special military tribunals to deal with terrorists, we also undermine our ability to criticize governments such as Peru, Cuba, and Turkey that have made use of such tribunals, bypassing their regular courts in order to deal with alleged threats. On December 25, a Russian military tribunal, meeting behind closed doors, sentenced the Soviet journalist Grigory Pasko to four years in prison for disclosing information on environmental abuses by the Russian Pacific Fleet to Japanese journalists.¹⁶ If the US were to resort to closed military tribunals, any

complaints it makes about such procedures elsewhere would ring hollow.

In effect, parts of the President’s order make the implicit claim that terrorists don’t deserve protections of due process. As President Bush has put it, “We must not let foreign enemies use the forums of liberty to destroy liberty

itself.”¹⁷ But the President ignores the fact that one of the purposes of due process is to ensure that the right persons are convicted. Scores of death sentences are being overturned because DNA evidence has established that convictions were mistaken even after defendants were tried with the protections available in American civilian courts. This should underline the need for protecting constitutional rights. And if due process is systematically denied to accused al-Qaeda members, one likely consequence is that other categories of accused persons—drug dealers, mass murderers, child molesters, etc.—will be labeled as similarly undeserving. Unfortunately, civil liberties particularly need defense in circumstances that involve the most loathsome defendants. The next time, it may be too late.

Proponents of human rights have been divided over the tribunals. Harvard Law School’s Laurence Tribe more or less endorses tribunals—invoking, without attribution, Justice Robert Jackson’s line that the Constitution is not a suicide pact—but he wants the objectionable features of Bush’s order regulated by Congress.¹⁸ Yale Law School’s Harold Koh, who served with distinction as assistant secretary of state for human rights in the Clinton administration, calls for trials in American federal courts of alleged terrorists, wherever they are arrested. “Why not show,” Koh writes, “that American courts can give universal justice?”¹⁹

Unfortunately, no momentum has developed for another solution: trial before a special international court such as those established to deal with former Yugoslavia and Rwanda. Indeed Harold Koh, who labels such a court a “more benign approach than President Bush’s military tribunals,” nevertheless rejects it as “slow and expensive.”

Koh is no doubt right that international trials would be costly and cumbersome; but it is not clear that those disadvantages outweigh the value of proceeding in a manner that has a better chance to gain broad international acceptance than entirely American courts, especially a military court set up in Guantánamo or some other military base. Deferring to such an international court could strongly advance American interests. Despite the slow pace with which they have proceeded, the worldwide credibility achieved by the tribunals for ex-Yugoslavia and Rwanda is very high. For the US, achieving such credibility is second in importance only to convicting the guilty.

Human rights advocates who have supported international tribunals in other circumstances did not press for them after September 11, believing that any such effort was doomed to be rejected by the Bush administration. In the immediate aftermath of the attacks, as the administration courted other governments to build an alliance against terrorism, some commentators suggested that the administration was abandoning its strongly proclaimed unilateralism. In fact, however, the administration’s quick success in Afghanistan has reinforced those in the White House and the Defense Department who believe that America is better off going it

alone. Renunciation of the ABM treaty is an obvious example. With the rapid triumph of the US, any faint prospect evaporated that the administration would accept multilateral participation in trials of alleged al-Qaeda members.

What then is to be done about the military tribunals? A first step is to narrow the range of those who may be tried before them. A judicial process should be available to distinguish prisoners of war from unlawful combatants. The authority of the tribunals to

try permanent residents of the United States should be eliminated. The trials should be required to observe standards of due process that include, at

least, rights to a public trial; to counsel of the defendant’s choice; to call and cross-examine witnesses; to be convicted only upon proof beyond a reasonable doubt; to appeal to an independent and impartial court; and, in the case of aliens arrested in the United States, to have an opportunity to challenge the jurisdiction of such tribunals by habeas corpus.

Finally, human rights groups should be provided the opportunity to establish a presence in Guantánamo or wherever else the trials are held, and to monitor all proceedings and to circulate their findings. Whatever the facilities provided to such groups, they will, of course, study the trials as best they can. Their conclusions about the tribunals are likely to matter to the United States, and to other countries, almost as much as the verdicts of the tribunals about the defendants who appear before them.

—January 16, 2002