December 1, 2001

No Military Tribunals: Let UN Try Terrorists


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George W. Bush’s order grant-ing the secretary of defense authority to establish a military commission to try suspected terrorists is a deliberate attempt to circumvent due process protections for criminal defendants, which are widely recognized in the United States and in international criminal tribunals.

Ostensibly aimed at members of al-Qaeda, the commission would have jurisdiction as well over any non-U.S. citizen who causes, threatens or aims to cause, any injury to a U.S. citizen or U.S. national security, foreign policy or the economy, provided Bush “determines” the person has committed or aided the commission of “acts of international terrorism.” Thus, foreign nationals who steal or destroy property owned by a U.S. corporation could be hauled before a military tribunal where universally accepted standards of due process do not apply, if Bush decides “it is in the interest of the United States.”

One of the most basic internationally recognized tenets of justice requires that criminal proceedings be open to the public and that evidence against the accused be revealed to him. The International Military Tribunal at Nuremberg tried and convicted Nazi leaders in public proceedings in which the defendants were able to hear the evidence against them in a language they could understand. They were entitled to the assistance of counsel and had the right to cross-examine witnesses called by the prosecution.

Bush’s military commission could be closed on order of the secretary of defense, defendants could be convicted based on secret evidence and there is no provision for assistance of counsel or the right of cross-examination.

In the past, military combatants have been tried in U.S. military courts, while spies and foreign agents have been tried in our criminal courts. Although the Supreme Court in 1942 upheld the president’s authority to establish a military tribunal to try German soldiers who came onto U.S. soil, the United States was at war with Germany at the time.

No nations at war

No nation executed an armed attack against the United States on Sept. 11. Although Congress authorized Bush to use armed force under the War Powers Resolution, it stopped short of declaring war. Yet Bush’s commission would have the authority to try those suspected of violating the laws of war.

The U.N. Security Council established a criminal tribunal with jurisdiction over crimes committed in Yugoslavia. Many have already been tried and sentenced by the International Criminal Tribunal for the Former Yugoslavia, for war crimes and crimes against humanity, and several more prosecutions are pending. The statute that established the tribunal provides the accused with the presumption of innocence and the rights to a public hearing, counsel of his own choosing, cross-examination of witnesses and to appeal any conviction to a judicial body. Bush’s commission denies all of these rights to the accused.
This commission is structured to enable military prosecutors to convict defendants more easily, without having to provide them with due process. It authorizes a secret proceeding where the accused isn’t entitled to see the evidence against him. The rules of evidence do not apply. And any noncitizen identified by Bush would be subject to the jurisdiction of the commission.

The Security Council should establish a special criminal tribunal for the Sept. 11 attacks, modeled after the Yugoslavia statute. Suspected terrorists should be tried as well in U.S. federal courts, for crimes against humanity, where they would be entitled to due process protections afforded any U.S. citizen suspected of committing a heinous crime. We should not retreat from our constitutional system of justice, which has served us well for more than 200 years. The Constitution guarantees all “persons,” not just citizens, basic fairness before depriving them of their liberty or their life.

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