Yes, Military Commissions Are Appropriate

By Abraham D. Sofaer and Paul R. Williams, Knight Ridder, 4/23/2003

Secretary of State Donald Rumsfeld’s announcement of guidelines for military trials in our war against terrorism took many observers by surprise. “Watered down” is how one television network labeled its segment on military commissions (known by some as tribunals). Apparently, critics had been successful in establishing the idea that the commissions were intended to railroad anyone caught up in the terror campaign against the United States. In fact, the guidelines establish a fair process that properly protects defendants' rights and U.S. security interests.

Nonetheless, critics continue to insist that prisoners be tried in U.S. domestic courts.

It is our belief, however, that debate should re-focus on the bedrock question of whether there currently exists any adequate mechanism for prosecuting prisoners who end up in U.S. custody during this terror war. From our perspective, no such mechanism exists. Military commissions can and must fill this role.

It is necessary, first off, to recognize that Al Qaeda terrorists are not ordinary criminals. President Bush has rightly called the September 11 attacks “acts of war,” and in that context prosecution is properly regarded as part of a national security effort, not an aspect of ordinary criminal law enforcement. We must also take account of the size of this challenge. The Al Qaeda and Taliban forces number up to 50,000 men, which could potentially mean hundreds of prisoners ultimately being brought to justice. The president has made it clear that he has no intention of trying every prisoner. But it seems likely that this conflict will be of long duration, and there could be a need for many trials before it ends.

The domestic judicial system was never intended nor designed to perform judicial roles related to a terror war. Instead, it was designed primarily to protect civil liberties of citizens while prosecuting those responsible for crimes. It is altogether incapable of serving the role of capturing, deterring, and punishing what amounts to a terrorist army, as history has made painfully clear.

The domestic judicial system proved itself completely incapable of punishing or deterring those responsible for terror crimes including the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the 2000 attack on the U.S.S. Cole. At best, that system is able to prosecute only a handful of low-level culprits or ideological supporters. The system is otherwise impotent and added to our vulnerability in the September attacks.

Deterrence is not the only security issue. Insisting on the application of American constitutional due process standards to terror perpetrators would inappropriately limit the U.S. in the exercise of its national security powers. In some cases, valuable evidence might have to be excluded for various reasons, including the protection of highly sensitive sources. That would sometimes make convictions impossible in a domestic court, although warranted by the facts.

We have already seen the horrifying result of insisting on those traditional standards. In 1996, Sudan offered to detain and transfer Osama bin Laden to the United States. Yet, according to The Washington Post, then-National Security Advisor Sandy Berger declined the offer on grounds that it would not be possible to try and convict him in an American criminal court. Indeed, when Berger turned down Sudan’s offer to turn over bin Laden, he tried to persuade Saudi Arabia to take him and, after a streamlined trial, have him hanged. His strategy failed, and bin Laden went to Afghanistan and built his terrorist empire.

Critics of military commissions complain that defendants' rights will be reduced, yet that is patently untrue. As Secretary Rumsfeld and the Pentagon have now made clear, commission standards are fully consistent with international standards. They will provide for appellate review, the presumption of innocence, the requirement of proof beyond a reasonable doubt to establish guilt, the admission of some hearsay evidence, the limited use of cameras in the courtroom, the requirement of a two-thirds majority for convictions – and a unanimous decision for a sentence of death. Defendants will be supplied with counsel, and may indeed hire outside counsel.

Some critics suggest we turn over suspects to an international criminal court. No such court is yet in existence, but preliminary signs of how such a court might operate are not promising. The Spanish prosecutor Baltasar Garzon, for instance, is rumored as a potential prosecutor for this court. Garzon can hardly be called an impartial jurist: He responded to the U.S. announcement that it would militarily pursue Al-Qaeda in Afghanistan by condemning the action as illegal and unjust, adding that “it should not be forgotten that there will come a time when justice is demanded of those responsible for these mistakes and the loss of a historic opportunity to make the world more just.”

The call for military commissions must be considered against this backdrop. From our perspective, the U.S. government is entirely correct in deciding not to continue the criminal-law response to terror, which contributed to our vulnerability on September 11. It is also well advised not to submit to bodies such as the ICC, which would further limit the U.S., and our allies, from effectively defending the U.S. against its enemies and protecting freedom and civil order from terrorist onslaught.

Abraham D. Sofaer is a senior fellow at the Hoover Institution and professor of law at Stanford University. Paul R. Williams is assistant professor of law and international relations at American University. This essay is adopted from the current issue of Policy Review.