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Secret Trial by Military Commission Is Not Justice
19 November 2001
Cambridge, Massachusetts - President George W. Bush has signed an executive order allowing accused terrorists to be tried by military commissions instead of in federal court. Trials by military commission will prove disastrous - to the war against terrorism, to the U.S. Constitution and to the rule of law.
The Bush administration favors such trials because they will allow sensitive evidence to be presented in secret. The rules governing the conduct of military commissions would be drawn up by the Pentagon, without regard to the safeguards and guarantees provided by the constitution.
But if the public relations war is as important as the military war, as allies and the administration insist, such trials would give the enemy a victory of enormous proportions. President Mohammed Khatami of Iran denounced the Sept. 11 attacks but said he needed evidence that Osama bin Laden was responsible. Presenting evidence in secret will convince no one and will only fortify bin Laden's propaganda. And military executions of convicted terrorists after such trials will create a new generation of martyrs.
Imagine how this looks to the rest of the world. Timothy McVeigh killed 168 of his fellow citizens, yet he was entitled to all the constitutional protections and safeguards of a federal criminal trial - held in the United States, in public. Now, when the defendants are foreigners, most likely Muslims, the administration of justice is left to an ad hoc military commission acting in secret.
In a legal sense, too, such trials will hand the terrorists an important symbolic victory. Although the United States will claim that they are "nonprivileged combatants" - that is, soldiers who have violated the laws of war - it must still acknowledge them as combatants rather than common criminals.
The trials will thus dignify terrorists as soldiers in Islam's war against America. This is exactly the wrong message to send. Qaida members are international outlaws, like pirates, slave traders or torturers.
At a deeper level, such trials challenge Americans' identity as a people. Military commissions have been used rarely in the past, principally to try to hang spies caught behind enemy lines. Now such commissions are proposed as a long-term mechanism to achieve a principal war aim - finding and trying terrorists.
But America is also, according to Mr. Bush, fighting for the values embodied in its constitution, against an enemy that would destroy its way of life. How then can it violate those values in the process? If America must depart from constitutional practices, then it should prosecute accused terrorists before an international tribunal. The International Criminal Tribunal for the Former Yugoslavia tries cases with panels of three judges, not a jury. It has numerous procedures for presenting key evidence in secret and protecting the identity of crucial witnesses.
And when Slobodan Milosevic attempted to exploit the process and grandstand for a television audience, the chief judge shut him down.
It would be easier politically for countries like Pakistan, Egypt or Jordan to extradite accused defendants to an international tribunal than to a secret court run by the U.S. military. The difference between military commissions and an international tribunal is the sanction and legitimacy of the global community. An international tribunal would demonstrate the depth of international solidarity against terrorism.
Today brings an opportunity to devise common procedures among nations around the world, far beyond the West. President Bush has said repeatedly that terrorists must be brought to justice. Trial by military commission is not justice - at least not justice as the United States understands it and preaches it to the world.
Anne-Marie Slaughter, Professor of International Law, Harvard Law