|
December 8, 2001
John Chuckman
High-Tech
Puritans
Patrick
Cockburn
The
End of a Strange War
December 7, 2001
John Troyer
Blacklist Me!
Sen. Edwards
v. Ashcroft
Military
Tribunals
George Naggiar
Occupation
as Terrorism
Hugo von
Sponek
and Denis Halliday
Iraq
the Hostage Nation
David Vest
The Coen
Brothers'
Minstrel Show
Alexander
Cockburn
Sharon
or Arafat:
Who's the Terrorist?
December 6, 2001
CounterPunch Wire
Hampshire
College the First
to Condemn the War
Robert
Jensen
University
Teaching After
September 11
Jack McCarthy
Does
Tom Friedman Read
the New York Times?
Sam and
Leila Bahour
The
Psychology of a Suicide Attacker
December 5, 2001
Edward Hammond
The Only
Real Way to
Prevent Biowarfare
Harvey
Wasserman
Atomic
Treason in the House
Carl Estabrook
America's
Israel
Don Williams
Questions
Barbara Walters Didn't Ask George Bush
Cockburn/St. Clair
Liberals
Hail War as
Return of Big Government
Robert
Fisk
The
Last Colonial War?
Bahour/Dahan
It's About
the Occupation
December 4, 2001
Dave Marsh
A
Plea for Byron Parker
Rep. Ron Paul
Keep Your
Eye on the Target
Susan
Herman
Ashcroft
and the Patriot Act
Tariq Ali
The Afghan
King and the Nazis
November 30, 2001
Jordan
Green
Disappeared
in the Southland
Willliam Blum
Rebuilding
Afghanistan?
November 29, 2001
Phillip
Cryan
Defining
Terrorism
Robert Fisk
We Are the
War Criminals Now
November 28, 2001
Tom Turnipseed
A
Continuum of Terror
Patrick Cockburn
Tribal
Council:
Don't Blame It All on Taliban
Robert
Fisk
At
Last, The Truth about the Sabra and Chatila Massacres
Harry Browne
The Bill of
Rights:
They Threw It All Away
Sunil
Sharma
Suffer
Palestine's Children
November 27, 2001
Paul Coggins
Kafka and
the Patriot Act
Tariq
Ali
Tigris
and Euprhates
November 26, 2001
Robert Fisk
Blood and
Tears in Kandahar
Jeffrey
St. Clair
Boeing's
Sweet Deal
CounterPunch Wire
Human
Rights Abuses and
Nuke Waste Shipments
Alexander
Cockburn
Harry
Potter and Terrorism
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
100s of Links
About 9/11
CounterPunch:
Complete
Coverage of 9/11 and Its Aftermath
Five
Days That
Shook The World:
Seattle and Beyond
By Alexander
Cockburn
and Jeffrey St. Clair
Photos by Allan Sekula
(Click Here to Order from CounterPunch
Online at 20% Off Amazon.com's price!)
INSIDE
EXCLUSIVE
TO
COUNTERPUNCH
SUBSCRIBERS
Published Oct. 15, 2001
8-Page Special Issue
War Diary
CIA's Assassination Plan a History of
Torture in US Prisons
bin Laden and Bush
Business Connections
Aisha Ikramuddin on the Hidden Hype
of US Food Bombs
Peter Linebaugh on
Pakistan
Christopher Hitchens' Love for Mrs. Thatcher
Jiang Zemin Tells Bush:
Nuke 'Em
Search
CounterPunch
Read Whiteout and Find Out
How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
and Jeffrey St. Clair
The
Phoenix Program
by Douglas Valentine
Al Gore:
A User's Manual
by Cockburn
and St. Clair
Buy
This Explosive
New Book at an
Amazing Discount!
Reviews of Gore:
a User's Manual
|
December
8, 2001
Military Tribunals Undermine
the Constitution
By Laurence Tribe
[The following is a transcript of professor
Tribe's testimony before the Senate Judiciary Committee on December
6, 2001.]
I am honored by the Committee's request that I
testify at this very important hearing on the role Congress can
and should play in our shared national effort to defeat global
terrorism without inadvertently succumbing to our own reign of
terror.
Although many of our constitutional freedoms
would be rendered meaningless without freedom from terrorist
attack, they may be equally threatened by undue governmental
limitations and intrusions imposed in the elusive pursuit of
national security. The choice we face is not that of liberty
versus security. Our challenge is to secure the liberties of
all against the threats emanating from all sources--the tyranny
and terror of oppressive government no less than the tyranny
of terrorism.
In the days following September 11, our
journalists, academics, and citizens wondered whether our government
and our courts would have the wisdom and courage to avoid the
terrible mistake they made in ordering and ratifying the detention
of over 70,000 Japanese Americans in internment camps during
the Second World War. Liberty from overreaching governmental
power was central to the freedoms identified by President Bush
in his address to Congress on September 20 as the very target
of the terrorist attack.
I share with the President the belief
that civil liberty includes liberty from terrorism. I hope we
share the belief that the war against terrorism does not require
us to sacrifice constitutional principles on the altar of public
safety, We know what is the result of that sacrifice--in Korematsu
v. United States, 323 U.S. 214 (1944), the Supreme Court permitted
the government to intern American citizens purely on the basis
of their ancestry in the name of national security. But liberty,
properly understood, requires both protection from government
and protection by government.
We must not permit ourselves to repeat
the same mistake and, by pitting liberty against security, erase
our freedom and equality in security's name. We are at the "Korematsu"
crossroads. Congress can determine which path we take. And Congress
has a special responsibility to act. No other branch of government
can be relied on to perform that task as well. Congress alone
can see the problem whole; courts necessarily see but one case
at a time and in wartime tend to defer to the executive's greater
knowledge and expertise, and the executive tends to be blinded
by the single-minded requirements of the military mission.
The real problem is not how much liberty
to sacrifice to buy security; it is how properly to achieve freedom
from the terrorism of all fanatics, foreign or domestic, who
would challenge the living fabric of our society, including the
constitutional compact that unites and gives it purpose. Fanatics
have attacked the Pentagon and the Federal Building in Oklahoma
and have toppled the towers of the World Trade Center, massacring
thousands of innocent people. We must not allow them to tear
down as well the structure of government, constituted by the
separation of powers, that makes our legal and political system--and
the liberties it embodies and protects--altogether unique. Our
response to each threat must remain the same: a steadfast refusal
to succumb to any attempt to force upon us a will, and a way
of life, that offend the freedoms at our country's core. These
freedoms, embodied in our Constitution, are our security against
the fanatics' new tyranny of terror. To assert them here is to
win at home the war we are waging so effectively abroad.
In the wake of the terrorist attack on
the United States, the President has acted to ensure that the
perpetrators of this crime against humanity are brought to justice--or,
as he promised in his address to Congress, to bring justice to
the terrorists. The terms of the November 13 Military Order represent
the most dramatic Presidential step thus far in our effort to
elaborate just what the content of this American justice is to
be. The ostensible goal of the military tribunals to be instituted
pursuant to that Order is to permit a "full and fair trial,"
sec4(c)(2), while at the same time ensuring that the process
is as expeditious and secure as possible. The need to provide
sooner rather than later for the detention and trial of those
responsible for the terrorist attacks of September 11 is apparent
from the rapid pace of our, and our allies', military victories
in Afghanistan. To Congress falls the task of charting our next
steps by giving content to a vision of justice that responds
fairly yet firmly to the fanatics' threat to our nation.
Congress alone can avoid the constitutional
infirmities that plague the Military Tribunal Order of November
13 and must do so not only to protect the constitutional rights
of those threatened by that Order but also to shield any resulting
convictions from judicial reversal on appeal --convictions which
could properly be obtained by military tribunals constituted
under a more narrowly drawn congressional statute.
As of two days ago, Secretary of Defense
Rumsfeld had wisely sought to describe the Military Order issued
by President Bush on November 13 as a blueprint made public,
"so that... work could begin" designing the military
tribunals and settling their jurisdiction and procedures. He
insisted that the Order was announced simply because, in his
words, "It may be that we will need that option" (NBC,"Meet
the Press," Dec.2, 2001). This is not, however, a blueprint
that the United States Government is free to follow. The structure
of executive power instituted by the November 13 Order is so
constitutionally flawed at its base that it cannot be saved by
nimble TV spin or by altering a detail here and a detail there.
As promulgated, the Military Order, by
its express terms, is a direct threat to some 20 million lawful
resident aliens in the United States. Almost any act by a resident
alien, anywhere, could in some circumstances lead the President
to believe the alien has or had some form of involvement with
a terrorist organization. The resident alien need not even know
that he was involved with terrorists. All that is required is
"aid[ing] or abet[ing]" terrorists "or acts in
preparation [ ]for" terrorism. Hiring a car for a friend
could be a terrorist act subject to trial by military tribunal,
if it turned out that your friend is--or was--a terrorist. How
many contributors to the African National Congress who supported
sanctions against South Africa under apartheid in the face of
government opposition "ha[d] as their aim to cause[ ] injury
or adverse effects on . . . United States . .. foreign policy...
" sec2(a)(1)(ii).
How many supporters of Irish nationalism
contributed, for reasons of political conscience, funds that
"aided or abetted" the Irish Republican Army before
it began disarming on September 11? The Military Order decrees
that any such supporter might at any moment be turned over to
the Defense Department for trial by a military tribunal on the
mere stroke of the President's pen certifying that the President
had "reason to believe" that the named individual was,
or at one time had been, helping or harboring some organization
that the President saw fit to regard as an example of "international
terrorism."
Of course, as Secretary Rumsfeld must
have recognized, any such threat, made in a manner that necessarily
hangs like a Sword of Damocles over millions of lawful residents
of this nation, cannot possibly be defended under our Constitution.
As Justice Marshall once wisely observed, such a sword does its
work by the mere fact that it "hangs--not that it drops."
Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).
The Secretary's attempt to wish the sword away--to persuade us
all that, until we feel the edge of its blade upon our necks,
we need not worry--is no substitute for replacing that sword
with a solid framework for the judicious use of executive force
in bringing justice to the terrorists.
The next steps are for Congress to take--not
in the direction of so flawed a blueprint, but towards a constitutionally
sound regime that will withstand judicial review--if it hopes
to obtain swiftly and to defend from embarrassing judicial invalidation,
convictions by military tribunal of the leaders of Al Qaeda,
or indeed of anyone else. For it is not within our government's
power simply to threaten to detain and commit to a military tribunal
or commission anyone who associates with agents of terror. After
all, even today's hardly "liberal" Supreme Court not
long ago held that the City of Chicago's response to terror gangs--enacting
legislation that threatened to arrest and prosecute anyone who,
loitering near a known gang member, did not disperse upon police
command--was flatly unconstitutional in essentially delegating
to those who enforce the law the vaguely bounded power to make
it on the spot. City of Chicago v. Morales, 527 U.S. 41, 62-63
(1999).
The November 13 Military Tribunal Order
is the same sort of response and has the same kind of infirmity.
Like terrorism itself even though far less violently, a threat
of arrest and possible conviction, even in our fully protective
civil courts, for offenses not clearly defined in advance but
to be defined by the executive as events unfold, instills fear
far beyond the ground zero of its actual implementation. The
Supreme Court in Morales recognized as much by striking down
on its face the ordinance that announced that threat and refusing
to wait until particular individuals were convicted or even charged.
Id. at 55.
The judicial response to the November
13 Order, despite Bush administration efforts to describe it
as more like a mere press release, than a real order, could be
even harsher. For at least the Chicago threat carried with it
the assurance that nobody would be arrested pursuant to its terms
without first receiving a clear and individualized warning--and
that anyone could assuredly avoid arrest and prosecution simply
by heeding that warning and dispersing when ordered to do so.
The November 13 Order is a threat that
carries no such corresponding assurance: all those subject to
it are exposed to prosecution, conviction, and possible execution
for conduct they may have engaged in years ago--and the Order
suffers from the compounding vice that it violates the separation
of powers required by our Constitution of the federal government
(although not of states and municipalities) by proceeding without
the congressional authorization clearly required for any creation
of a system of trials, military or otherwise. It installs the
executive branch as lawgiver as well as law enforcer and law
interpreter and applier, leaving to the executive branch the
specification, by rules promulgated as it goes along, of what
might constitute "terrorism" or a "terrorist"
group, what would amount to "aiding and abetting" or
"harboring" such terrorism or such a group, and a host
of other specifics left to the imagination of the fearful observer.
This "blending of executive, legislative, and judicial powers
in one person or even in one branch of the Government is ordinarily
regarded as the very acme of absolutism." Reid v. Covert,
354 U.S. 2, 11 (1957); Federalist No. 47 (James Madison).
Several days before Secretary Rumsfeld's
attempted recasting of the November 13 Order, White House Counsel
Alberto Gonzales opined in the pages of The New York Times that
the order would not reach any but "foreign enemy war criminals,"
Alberto R. Gonzales, "Martial Justice, Full and Fair,"
The New York Times, Nov. 30, 2001, sec A at 27, and that each
military tribunal's proceedings, which the Order had said could
be conducted in secret at the President's option, sec4(c)(4),
would of course be conducted in the open with exceptions only
for "the urgent needs of national security."
It is, to be sure, nice to have White
House Counsel's promise that this is so, but "trust me"
has never been enough for the American people. Our whole constitutional
tradition is predicated on the proposition that not even the
best intentions of the most benevolent leaders can substitute
for the positive legal protection and preservation of freedom.
Ours is "a government of laws, not men." It is offensive
to our founding values to have the powers of drafting the laws,
and then prosecuting and adjudicating violations of those laws,
embodied in one agency--here, one man. "Such blending of
functions in one branch of the Government is the objectionable
thing which the draftsmen of the Constitution endeavored to prevent
by providing for the separation of governmental powers."
Reid v. Covert, 354 U.S. 2, 38-39 (1957).
It is just not good enough for the executive
branch to put a benign spin on this Order and to assure the nation
that it will not mean in practice what it says on its face. Yet
this is precisely what Mr. Gonzales sought to do when he "explained"
in The New York Times that the Military Order's explicit bar
of any judicial relief whatsoever for any person detained and
tried pursuant to it would, of course, not mean what it said,
inasmuch as the Supreme Court half a century ago had refused
to take identical language at face value in its Ex parte Quirin
decision condemning the Nazi submarine saboteurs to death--but
only after according them a judicial hearing of sorts.
What seems essential is less spin and
more action--here, concrete legislative action to build a sound
but narrow legal platform on which to construct the military
tribunals and conduct the military trials that the President
believes may prove essential in extraordinary cases where our
civil justice system may be insufficient to the task of coping
with the terrorist threat that became manifest with the monstrous
events of September 11. That legal platform must make clear that
its scope cannot be extended (a) to American citizens; (b) to
individuals linked, however closely, to acts of terror wholly
unrelated to September 11 (unless Congress affirmatively and
expressly chooses to add such acts, or the specific organizations
responsible for them, to the list of targets it empowers the
President to pursue and try militarily); to individuals not closely
linked to a specific terrorist event whose responsible agents
Congress has authorized the President to pursue by force and
try by military tribunal; or to mere foot soldiers captured on
the field of battle and entitled, under the Geneva Convention,
to treatment as prisoners of war rather than as war criminals.
Substantive limits must be established
by law to constrain on the President's power to determine which
aliens are to be subjected to the jurisdiction of a military
tribunal or commission, and procedural guidelines must be established
to ensure that defendants' due process rights are protected by
such commissions. Congress must set those limits and draft those
guidelines, presumably in consultation with the President.
At the forefront of our new agenda abroad,
at least so far, has been an effort to help establish transparent,
accountable, and hopefully democratic institutions with which
to govern Afghanistan. The policy appears to rest upon the belief
that democracy is the best check on terrorist activity, which
requires a culture of respressive intolerance in order to thrive.
Yet that same accountability must prevail at home as well. We
are in the end more, not less, secure when we practice the democracy
at home that we preach abroad.
The Military Order confronts Congress
with two distinct problems to resolve. The first is the set of
substantive limitations to be placed on the jurisdiction afforded
military tribunals: who is to be subject to the tribunals, and
for what wrongs? The second is the set of procedures that is
to govern these tribunals. We must ensure the open and fair hearings
witnessed in "A Few Good Men," not the kangaroo court
seen in "Paths of Glory." It is especially troubling
that even our extant system of courts martial has been besmirched
by careless comparison with the far less protective military
tribunals that the order plainly contemplated. See William Glaberson,
"A Nation Challenged: the Law; Tribunal v. Court-Martial:
Matter of Perception," The New York Times, Dec. 2, 2001,
sec1B at 6 ("the proposed tribunals are significantly different
from courts-martial, [military] lawyers say, adding that confusion
between the two has distorted the debate over the tribunals and
unfairly denigrated military justice").
Jurisdiction
1. As a preliminary matter, Congress
should note that we already have a system of justice under which
to try terrorists: we successfully tried in criminal court the
last members of Al Qaeda who attempted to bomb the World Trade
Center. In the rush to convict and punish the perpetrators of
the attacks on the World Trade Center and the Pentagon, it would
be a mistake, although not necessarily a violation of the Constitution,
to rely on military courts as a substitute for the intelligence
agencies' ability to track terrorists and accumulate convincing
evidence of their activities. Using a court designed to convict
even when a weak case has been presented by the government--using
it, in fact, to cover the failures of the executive--is hardly
the way to fight terrorism in the long run.
Indeed, the entire plea for secrecy and
anonymity--from concealing from the accused and/or the public
the identity and nature of the witnesses and other sources behind
the government's case, to keeping confidential the methods of
investigation employed by the government to track down and identify
the accused, to hiding the identity of jurors and judges who
might reasonably fear reprisal from an accused terrorist's associates
in terror who are still at large--can so easily become a cover,
whether deliberate or not, for ineptly unreliable or otherwise
unconscionable behavior by the executive, that it would seem
wise for Congress to institute some sort of independent check
on the President's assertion that the presumptively open and
public civil trial system, which has had to cope often with needs
for witness protection and informer anonymity and the like, is
intrinsically ill-adapted to the task at hand.
Congress's goal should therefore be to
channel as many suspected terrorists as feasible away from, rather
than towards, military tribunals. Among the reasons justifying
a military tribunal will of course be considerations of national
security that may require closed proceedings to protect classified
information from dissemination; concerns of overwhelming danger
to the court, to jurors, or to witnesses that might require secure
proceedings of a sort precluded even by the usual methods of
witness or court protection; or circumstances surrounding the
accused's capture while prosecuting a military action on behalf
of an enemy nation or group in a manner that allegedly violates
the laws of war.
2. Although much of the current debate
proceeds on the premise that these two should be treated differently,
where these reasons are present there seems little principled
basis to distinguish between an unlawful belligerent who is a
resident alien, blending in with and hiding among the United
States population, and one who is a non-resident alien, openly
engaging in warfare on United States civilians from beyond our
borders. Indeed, the reasons for favoring military tribunals
do not appear to distinguish between citizens and non-citizens.
As the Court held in Ex parte Quirin, 317 U.S. 1 (1942), when
a citizen disavows his homeland and sides with the enemy, he
may become an enemy belligerent. See id., 317 U.S. at 16 ("Citizenship
in the United States of an enemy belligerent does not relieve
him from the consequences of a belligerency which is unlawful
because in violation of the law of war"). Indeed, being
a traitor as well as an unlawful belligerent, the citizen who
wages such warfare on his homeland may well be regarded as more
culpable than the alien, not less.
In sum, it seems wisest in practice to
limit military tribunals--as the Bush Administration has all
but promised it would likely do in practice--to a relatively
small group of enemy alien leaders, captured abroad, of terrorist
groups clearly identified by Congress, and an even smaller group
of their colleagues who are reasonably believed to have played
similar roles while concealed among our people. In theory, however,
the two criteria essential to establishing military, as opposed
to civilian, jurisdiction should not rest upon any such difference
in status.
The first is that the person to be tried
by a military tribunal or commission must be an enemy, see Johnson
v. Eisentrager, 339 U.S. 763, 776 (1950)--that is, someone acting
at the behest of a nation or other entity warring against the
United States; the second is that the enemy must be charged with
unlawful belligerency, or any other established offense against
the laws of war, sufficiently serious to warrant such disfavored
treatment. See Ex parte Quirin, 317 U.S. at 11.
Strikingly, the November 13 Military
Tribunal Order extends the range of offenses that it subjects
to military tribunals so as to include "any and all offenses
triable by military commission," sec4(a), not just those
that offend the laws of war, based, evidently, upon an unexplained
finding that "prevention of terrorists attacks" requires
the detention for, and trial by, military commissions not only
"for violations of the laws of war" but also for "violations
of . . . other applicable laws," of all "individuals
subject to this order," sec1(e) (emphasis added). The law
is settled, however, that an alien may be subjected to trial
by a military tribunal only if he meets both of the criteria
set forth above. See Yamashita, 327 U.S. at 26. Even though military
rule is "properly applied . . . on the theatre of active
military operations, where war really prevails," Milligan,
71 U.S. at 127, trying a captured soldier as a criminal for merely
fighting in accord with the laws of war on behalf of the nation
or other entity he represents appears to be universally condemned.
Under the Geneva Convention and other
international instruments, such soldiers must be held as prisoners
of war, to be repatriated at the war's conclusion. This could
pose a problem in a case such as that of Taliban foot-soldiers,
captured while engaged in combat against the Northern Alliance,
whom our military leaders suspect of harboring, or working in
close concert with, Al Qaeda. Unless such combatants happen to
be among Al Qaeda's leadership, they are most unlikely to have
been sufficiently responsible for that group's terrorist acts
to count as war criminals, but viewing them as entitled to treatment
as prisoners of war would seem to require their repatriation
in the eventually reconstituted Afghanistan, to Saudi Arabia,
to Pakistan, or to their mother country whatever it might be--none
of which nations might be willing to welcome them.
Even though the indefinite and potentially
permanent detention of deportable aliens residing in the United
States may well be unconstitutional even if no other nation will
accept them, see Zadvydas v. Davis, 121 S. Ct. 2491, 2500-02
(2001), that protection does not seem to extend to "aliens
outside our geographic borders," id. at 2500 (and cases
cited therein), much less to enemy aliens outside those borders,
so it may well be that, since international law could hardly
require the admission of such captured enemies into the United
States, there is no alternative to their indefinite detention
by the United States, at a suitable place outside our borders,
unless and until their repatriation becomes possible.
3. To enforce this basic jurisdictional
boundary, Congress should provide for some form of tribunal--it
need not be an Article III court in the first instance--to review
the President's threshold assertion of military jurisdiction,
and should provide as well for some suitably expedited form of
habeas corpus review in an Article III court if the initial review
was by some lesser power. See, e.g., H.R.3162 (Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001) (signed
into law October 26, 2001) sec412(b) (providing expedited habeas
corpus review).
4. In addition, of course, Congress would
do well, acting under its Article I, sec8, ch. 10 power to "define
and punish... offences against the law of nations," to define
more precisely those violations of the laws or customs of war
which the military tribunals may hear, and to specify or otherwise
monitor the penalties to be imposed. Punishments could perhaps
be made proportionate to those meted out under the Federal Sentencing
Guidelines.
Procedure
5. Domestic law of course imposes due
process safeguards on military tribunals of every possible form.
Thus, in Middendorf v. Henry, 425 U.S. 25 (1976), the Court took
note of the traditional categorization of courts martial (general,
special, and summary--i.e., non-adversarial.), and required Fifth
Amendment due process protections to be extended to a defendant
even at the lowest (summary) of the three levels of court martial.
Id. at 43 ("plaintiffs, who have either been convicted or
are due to appear before a summary court-martial, may be subjected
to loss of liberty or property, and consequently are entitled
to the due process of law guaranteed by the Fifth Amendment").
The two higher levels (general and special) are adversarial,
and accordingly require heightened due process safeguards.
6. The court martial provisions of the
Uniform Code of Military Justice (UCMJ) provide the minimum procedural
safeguards required by military law, and may usefully be considered
by Congress as setting a template against which to measure possible
legislative proposals for creating new types of military tribunal.
"General courts-martial . . . have jurisdiction to try any
person who by the law of war is subject to trial by a military
tribunal and may adjudge any punishment permitted by the law
of war." 10 U.S.C. sec818. General courts-martial are, as
noted, comprised of five judges. One of these must be a military
judge--unless the defendant waives this requirement. 10 U.S.C.
sec816. At least one trained lawyer sits on the court, 10 U.S.C.
sec826, and, absent exigencies of war, the accused is entitled
to counsel to defend him, sec827; to know the charges proffered
against him, sec830; to be free from compulsory self-incrimination,
sec831; and to conduct a limited investigation of the facts surrounding
the charge, sec832.
7. A court martial also provides heightened
protection for more serious charges. Section 852 of the UCMJ
ensures that a defendant may be convicted of a crime punishable
by death only where the commission's vote is unanimous. Any death
sentence must be unanimous as well. While this would no doubt
limit the number of death sentences that could be imposed--and
the number of convictions that could be obtained in cases where
that penalty was sought--if the military tribunals now being
established were to follow the court martial model, the prosecution
could keep the overall conviction rate from falling much by seeking
a life sentence, and from falling at all by seeking a term of
years less than life, which requires the same two-thirds vote
that the November 13 Order would require. See sec4(c)(6).
8. Suggestions that military tribunals
must, either as a matter of constitutional necessity or as a
matter of sound international diplomacy, follow evidentiary rules
and burden-of-proof rules fully as onerous to the prosecution,
and protective of the accused, as apply in ordinary criminal
trials and in courts martial, have much to commend them, but
Congress may properly keep in mind that at least some of those
rules are designed mostly to protect lay jurors from being unduly
impressed by categories of evidence whose reliability those inexperienced
in such matters may overestimate, or unduly swayed by emotional
appeals for vengeance, and that the need for such rules may be
correspondingly reduced when trained professionals are the finders
of fact and law.
In addition, the classic requirement
of proof beyond a reasonable doubt is chosen to reflect the old
adage that it is better to free 100 guilty men than to imprison,
much less execute, one innocent--a calculus that neither the
Constitution, nor conventional morality, necessarily imposes
on government when the 100 guilty who are freed belong to terrorist
cells that slaughter innocent civilians, and may well have access
to chemical, biological, or even nuclear weapons. Due process
has been held, for example, to permit incarceration of potentially
indefinite duration of those found, upon proof by less than the
"beyond reasonable doubt" standard, to pose a grave
danger to the safety of others. See Addington v. Texas, 441 U.S.
418, 424-29 (1979) ("clear and convincing" evidence
standard held constitutional).
To be sure, there is a very significant
difference between involuntary civil commitment or quarantine
of someone deemed dangerous to the public for reasons that entail
no moral opprobrium and imprisonment or, most extreme of all,
execution, of someone convicted as a war criminal. But in a legal
universe where the option of permanent incarceration as a "probable
once and future terrorist" is non-existent, to put decisive
weight on the moral valence of the "war criminal" label
may mean violating the maxim that our Constitution is not a suicide
pact. For proof beyond a reasonable doubt--using those words
in their criminal law sense and not with a wink--may be too much
ever to expect in at least some categories of terrorism cases
where intrinsic difficulties of gathering and presenting the
needed evidence, particularly if the hearsay rule and other somewhat
artificial obstacles are interposed, would predictably lead to
the release of individuals likely to cause the avoidable loss
of far more innocent life than would result from a somewhat softer
standard of proof.
9. Congress should also ensure that an
accuser not be given the final word as the court of last resort
in the appeal of a conviction or sentence that the accuser obtained
in his role as prosecutor or as the prosecutor's ultimate superior--a
power currently granted the President by his Military Order.
See sec4(c)(8) (trial record submitted for President's "review
and final decision"). It has been an axiom of Anglo-American
law for nearly four centuries that a "person cannot be judge
in his own cause," Dr. Bonham's Case, 8 Co. 114a, 118a (1610),
a principle applicable to appellate no less than trial judges.
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-25 (1986). The
fact that no appeal at all is constitutionally mandated from
a criminal conviction rendered by a civil court, McKane v. Durston,
153 U.S. 684 (1894), has never been taken to imply that an "appeal"
to the chief prosecutor himself can satisfy due process where
the judgment appealed from was rendered by a body "whose
personnel are in... the executive chain of command," Reid
v. Covert, 354 U.S. 2, 36 (1957), as is true of courts martial,
id., and of any other military tribunal drawn exclusively from
the President's military subordinates.
Unless Congress opts for the novel alternative
of having one or more members of each military tribunal drawn
from the Article III judiciary--as Congress did in setting up
the U.S. Sentencing Commission, see Mistretta v. United Sates,
488 U.S. 361 (1989), and in creating the panel charged with the
task of appointing the independent counsels, see Morrison v.
Olsen, 487 U.S. 654 (1988)--it follows that Congress must probably
guarantee an expedited appeal to some entity independent of the
executive branch, such as the Court of Appeals for the Armed
Forces. Ultimate discretionary review by the Supreme Court on
writ of certiorari would be an optional feature in such an arrangement.
Whatever system of appeals is provided, it seems plain that,
if considerations of national security or witness protection
so require, Congress could provide that any appeal to a body
independent of the President be conducted as a closed proceeding,
with the record of the appeal to be kept confidential.
10. Although the UCMJ provides a useful
model, the power to set out procedures in the first instance
might instead be delegated to the Department of Defense, provided
that, within a specified time before such procedural regulations
go into effect, they are reported to Congress. Such a mandatory
waiting period would give Congress an opportunity to reject or
amend the regulations by joint resolution (not, of course, by
a mere concurrent resolution, or by a one-house resolution, both
prohibited under INS v. Chadha, 462 U.S. 919, 952 (1983)). Indeed,
if military commissions or tribunals outside the UCMJ framework
are to be as rare an occurrence as the administration insists
they are meant to be, Congress might simply decide to require
such tribunals to be individually authorized by the President
after a statutorily mandated consultation with congressional
leadership to explain why existing institutions, including the
Article III courts, are inherently insufficient in the circumstances.
Such congressional oversight of the President's conduct of this
war would draw in part, of course, on the War Powers Resolution
of 1973, Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C.
secsec1541-1548 (2000)), as precedent--something to which the
Bush administration, which invoked the War Powers Resolution
as part of the foundation for the Use of Force Resolution that
it proposed to, and obtained from, Congress on September 18,
2001, should have no objection. In any event, Congress would
presumably want to require the President or his Secretary of
Defense to submit regular periodical reports concerning the proceedings
of the military tribunal, and the continued need for their existence.
Oversight
11. However, Congress could also ensure
continued oversight of military tribunals in a variety of ways--for
example, by controlling the manner in which the presiding officers
are selected. It may require that presiding officers have certain
minimum qualifications, and may permit civilians to serve. Alternatively,
Congress may require the Secretary of Defense to submit a list
of eligible candidates, from which Congress would select presiding
officers to serve for a term of years. Congress could also establish
procedures for the removal of such officers.
12. In addition, Congress should certainly
provide for the "sunsetting," or automatic expiration
after a relatively few years (three or four would seem prudent),
of whatever authorization it enacts for special military tribunals
to deal with suspected terrorists, just as was done in the USA-PATRIOT
Act, see, sec224, inasmuch as the war being waged against international
terrorism, unlike a declared war against a sovereign nation,
could go on indefinitely, with no plausible way of declaring
it over at any given point.
Conclusion
13. Finally, it is worth noting that
Congress occupies a privileged position not available to any
court that may be asked to decide the constitutional issues arising
from these tribunals. For Congress has before it questions concerning
the prolonged and secret detention of aliens and the use of what
appears to be a form of ethnic, or at least national-origin,
profiling in the interrogation of immigrants; challenges to the
conceded use of United States citizenship as a reward for providing
information that might lead to the breakup of terrorist cells
or the apprehension of terrorists; concerns going to possible
abuses of prosecutorial discretion; issues regarding the alleged
breach of the attorney-client privilege; worries triggered by
Department of Justice indications that the FBI, now in a powerful
new information-sharing arrangement with foreign intelligence
agencies, may be on the verge of resuming practices, happily
abandoned decades ago, involving keeping close tabs on, and even
planting secret government informants in, political, religious,
and civil rights-civil liberties groups; and, of course, all
the fears and criticisms triggered by the November 13 Military
Tribunal Order.
I believe Congress should seize this
historic opportunity to investigate with care but with dispatch,
and then to craft an integrated legislative package that protects
individual freedoms while permitting, if truly necessary, a form
of secure tribunal in which to try suspected war criminals who
pose a particularly virulent threat. While I believe such tribunals
may well be justifiable in extremely limited circumstances in
which, among other things, the laws of war have been violated,
we must be clear that facile distinctions between terrorists
who kill our people with nefarious schemes incubated in caves
located far across the seas, and those who do so by carefully
hatching plots in the comfort of our cities, concealing themselves
as civilians while they plan monstrous acts of mass murder, are
worth very little in the larger scheme of things. Bin Laden,
and the leader of the terrorist cell of aliens living in our
midst after gaining lawful entry to this country who proceeded
to turn our world upside down on September 11, are cut from the
same cloth.
We must keep in mind, too, that the vast
majority of individuals who may be subjected to scrutiny because
of their previous affiliation with or support for terrorist organizations
are guilty of at most run of the mill crimes, crimes properly
punished in civilian court. We must not make martyrs out of petty
criminals. Far better to show our foes that American justice
will survive their assault than to sacrifice our core values
through hasty overreaction.
This, then, is our Korematsu: the choices
we face now--as then--are difficult ones. But I believe that
Congress can rise to the occasion, resist the undue consolidation
of power within the executive branch, and secure our freedom
and our safety alike, requiring no more compromise of our liberty
than is genuinely essential--and then only in ways that respect
equality. These are the better angels of our nature to whom I
bid Congress listen today.
Laurence Tribe
is the Tyler Professor of Constitutional Law at Harvard Law School.
|