Secret Military Tribunals
On Tuesday, November 13th, 2001, President Bush signed an executive order which allows the U.S. government to try non-U.S. citizens suspected of terrorism before a special military commission as opposed to trying them in civilian courts. Unfortunately, there is ample precedent for the use of secret and autonomous courts when claims of "national security" are made.
Latest Articles4 Abortion & Sexuality4 Charity vs. Government 4 Gay Courage? 4 Questioning Patriotism 4 Secret Papers 4 Veiled Courage Related Resources4 Church & State4 Supreme Court 4 Religious Freedom 4 Religious Right 4 Flag Desecration 4 Abortion |
In 1978, the government established the Foreign Intelligence Surveillance Court, which can authorize surveillance and searches of American citizens based on secret, unchallenged evidence. The anti-terrorism bill of 1996 established the Alien Terrorist Removal Court, which can deport non-citizens based on secret evidence of things they have said and the people they associate with.
Who will be subject to these tribunals? All foreigners, including permanent, noncitizen residents who may have lived in the United States for decades, can be tried in this way. The President will have final authority to decide who exactly will fall under the jurisdiction of this order, without independent oversight from anyone else. Thus, this Executive Order is not simply limited to the people we are fighting against - it isn't even limited to members of Al Qaeda.
Instead, it is broadly worded and can apply to absolutely any noncitizen, regardless of who they are, where they live, and what they have actually done. Attorney General John Ashcroft has even raised the possibility that such tribunals may be used against some of the many noncitizens currently being held in federal custody - not one of which has actually been linked to the September 11th attacks. If any of those people are tried and executed, would we even be told about it?
What sorts of evidence will be allowed? The evidence used against the accused can be secret, which prohibits them from ever seeing or challenging it. Such evidence can come from hearsay, coerced confessions, and illegal searches. Not even their lawyer will be able to challenge the evidence or cross-examine accusers, although the lawyer will be appointed by the court, without input from the accused.
What procedures will be followed? Although the tribunals could take place anywhere (in the United States, abroad, or even on military ships), U.S. federal laws and punishments will apply, including the death penalty. Decisions will be made based on a two-thirds majority of judges, not a unanimous vote or a jury, even if the sentence of life in prison or death is possible. Even regular courts-martial require a unanimous panel of judges in order to impose a death sentence. Decisions cannot be appealed to a civilian court - only to the president himself.
Unfortunately, we really don't know much more about them - and we may never know, because most of their rules and procedures haven't even been laid out yet. When defending Bush's decision to implement such military trials, Vice President Dick Cheney said that they "will be under the procedures of a military tribunal, under rules and regulations to be established in connection with that."
How can the government guarantee that they will be fair if they don't even know themselves how they will be conducted and don't plan on allowing for independent observation?
So, not only will such tribunals escape Constitutional scrutiny, but they will apparently escape any scrutiny, both because they will be held in secret (even the Freedom of Information Act would probably not apply to transcripts of the proceedings) and because no one knows the rules under which they will be conducted. How can the government guarantee that they will be fair if they don't even know themselves how they will be conducted and don't plan on allowing for independent observation?
This essentially means that they first decide you are guilty, then decide upon the procedures under which you will be tried, then pick the people who will affirm that you are guilty.
If that sounds a bit over-the-top, it isn't. One Justice Department official defended the implementation of these tribunals by referring to the outcome of the trial earlier this year of two Libyans charged with the bombing of Pan American Flight 103 over Lockerbie, Scotland. One was convicted, but the other was not, and the official in question said: "This was not an outcome we would want here."
Well, what if the acquitted suspect was actually innocent of the charges? Apparently, that isn't a relevant consideration - they don't want acquittals for those charged with terrorism and will use military tribunals to ensure that that doesn't happen. It is almost as if these tribunals were created in an attempt to reach a pre-determined goal. Are government officials afraid that a real court where they would have to follow real rules might not result in a conviction?
Military vs. Civilian Courts
Even the reasons why this order was issued are unclear. In part, it states that "it is not practicable to apply...the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." But at no point has anyone explained just why our justice system would not allow for the timely prosecution of terrorists or would otherwise create further dangers for the public.
The administration's argument here is that it cannot conduct open trials because the standard rules of evidence would lead to the exposure of intelligence gathering methods and agents, thus threatening national security. But what is different between what we face now and the trials which convicted terrorists in the 1993 World Trade Center bombing and the 1998 bombings of U.S. embassies in Africa? If the U.S. has successfully tried terrorists from these same groups before, why can't it be done again?
It is curious that the American government has loudly trumpeted the argument that we are at "war" with terrorism and that we are engaged in a "war" against those who have attacked us. Vice President Dick Cheney told a cheering audience of conservative lawyers that "This is a war against terrorism. Where military justice is called for, military justice will be dispensed."
Why is this curious? Because Cheney has specifically denied that the terrorists being targeted "deserve to be treated as a prisoner of war." So are we at war with them, or not? If the situation calls for "military justice," then why doesn't it also call for basic military rules of conduct?
Despite what Bush and his advisors claim, these tribunals really don't have anything to do with "military justice" - they aren't even lawful implementations of the Uniform Code of Military Justice. The U.C.M.J. requires a public trial, proof beyond reasonable doubt, a voice for the accused in the selection of juries and even right to choose counsel. Death sentences require a unanimous vote, not simply a two-thirds majority, and there are even provisions for appellate review by civilians confirmed by the Senate. None of these fundamental rights will exist in Bush's kangaroo courts.
One of the justifications used by the administration for creating such tribunals is the precedent of their being created by Franklin D. Roosevelt during his presidency. But this explanation rings quite hollow, as David Close, a Georgetown University law professor clarified on Nightline:
The only times that military tribunals have been permitted in the past have been in a declared war with respect to enemy aliens - people who are involved in fighting against us in a declared war on behalf of a nation with which we're at war.
Citing the precedent of Roosevelt is a mistake not simply because we are not in a state of war, but also because those trials involved German soldiers who were out of uniform, not foreign civilians. Bush has also cited the precedent of Abraham Lincoln, whose case is better because he did use military tribunals against civilians, namely Confederate sympathizers. But what Bush doesn't seem to want people to know is that the Supreme Court ruled that Lincoln violated the Constitution when he did that:
This nation...has no right to expect that it always will have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right [to suspend portions of the Constitution during emergencies] is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."
The basic finding of the court in this case, Ex Parte Milligan, was simply that military rule could not supersede civil courts in areas where the civil courts and government remained open and operational. Our government is currently open and operational, and our courts are doing business - but apparently, our administration isn't interested in adhering to judicial precedent.
Judicial Standards
Perhaps even more disturbing are the further comments by Cheney when he said that the terrorists who would be tried in this manner "don't deserve the same guarantees and safeguards" of the American judicial system. Granted, the terrorists who committed the attacks of September 11th are really awful people, but Cheney's comment raises some very problematic issues. Why exactly does anyone deserve the guarantees and safeguards of our judicial system?
Are people deserving because they are U.S. citizens? Then any non-citizen accused of anything can be denied basic Constitutional protections, something which the Supreme Court has rejected. Are people deserving because they are innocent? That means that no guilty person deserves any protections, which is surely a nonsensical position.
Shouldn't anyone charged with a crime by America be afforded the basic guarantees and safeguards of our judicial system? Don't those guarantees and safeguards exist to ensure that justice is done, so that the innocent are kept free and the guilty punished accordingly?
Philip Cave of the National Institute of Military Justice in Washington has noted, "As a citizen of the world, one could assume they ought to be entitled to the same human civil rights under various international treaties the United States has co-signed on." But apparently such treaties are only followed when convenient.
...it has always been my impression that the principles of justice and the rule of law were supposed to be fundamental to American values. So why is it that our President is eager to sacrifice those values in his ostensible war to defend them?
The tribunals are not about "military justice" or even, apparently, "justice" at all. If the government wanted to ensure justice, then it would be willing to use the normal courts of law and standards which everyone else has to abide by - unless the government wanted to admit that our system is not really just after all.
The administration has also effectively ignored the Congress, not bothering to consult it in any fashion. Why? One senior Justice Department official gave an honest response when asked why there is such reluctance to expose new policies to Congressional debate: "People here are imbued with the idea that this shouldn't be allowed to happen again, and that has made us impatient."
Government officials may claim that the public is on their side, but it is a sad day when our administration is more concerned with the support of the mob than with the support of the law. Impatience is dangerous, because it allows otherwise good people to run rough-shod over important civil liberties and democratic principles in an effort to appear to be doing something, anything, and also in an effort to disclaim any liability should something go wrong in the future.
What message is being sent to other governments around the world? Simply this: the trial and execution of foreign nationals, without independent judicial oversight but with secret evidence, is an acceptable standard of law. Americans abroad should be very afraid, lest they themselves be held to new standards.
Somewhere, buried in all of the rhetoric of this being a "war" on terrorism, the government has expressed the idea that this "war" is being waged in defense of American values and the American way of life. Perhaps I'm mistaken, but it has always been my impression that the principles of justice and the rule of law were supposed to be fundamental to American values. So why is it that our President is eager to sacrifice those values in his ostensible war to defend them?
Read the text of the Executive Order
Note: as of 12/28/01, military officials have decided upon some of the rules under which tribunals will be conducted. Although a 2/3 majority will still be enough to find someone guilty, a unanimous ruling will be required for the imposition of the death penalty. Hearsay evidence will still be admitted, but the burden of proof must be "beyond a reasonable doubt" - and the accused will have the right to get a civilian lawyer, if they wish. President Bush might not think very much about people's civil liberties, but at least some in the military still do.
Note: In late March 2002, the Pentagon "clarified" the rules in order to state that suspected terrorists would still have the following rights: (1) to the presumption of innocence; (2) to choose counsel and to see the prosecution's evidence; (3) to trial in public Ñ a great human right Ñ though classified information will be kept secret; and (4) to remain silent with no adverse inference to be drawn.
However, still problematic are: the lack of a real jury, the use of hearsay as "acceptable" evidence, no civilian or otherwise truly independent review of the decisions, indefinite detention for prisoners, and no participation of Congress.