U.S. Marines may have to burrow down an Afghan cave to smoke out the leadership of al Qaeda. It would be ludicrous to ask that they pause in the dark to pull an Afghan-language Miranda card from their kit bag. This is war, not a criminal case.
The president's executive order, providing for the detention and possible trial of terrorists in military courts, recognizes this. But some critics continue to argue that trials are better held in a federal district court, or in an ad hoc international criminal tribunal. Others have worried that the initial jurisdictional order does not fully specify the rules of trial procedure and evidence that would await prisoners. Yet others are concerned that Congress was not asked for authorizing legislation. These criticisms, though made in good faith, reflect a misunderstanding of how the law of war is enforced, as well as a dangerous naiveté about the threat we face.
The detention of combatants is a traditional prerogative of war. We have all seen movies about captured soldiers in World War II. After surrender or capture, a soldier can be parked for the rest of the war, in humane conditions, to prevent him from returning to the fight. His detention does not depend on being charged with a crime. Though most al Qaeda members do not rise even to the level of POWs -- they have trampled on the qualifying rules of wearing distinctive insignia and observing the laws of war -- they can be detained by the same authority for the duration of the conflict.
Military courts are the traditional venue for enforcing violations of the law of war. The Sept. 11 murder of 4,000 civilians was an act of war, as recognized by the U.N. Security Council in two resolutions endorsing America's right to use force in self-defense. Osama bin Laden and his airborne henchmen disregarded two fundamental principles of morality and law in war -- never deliberately attack civilians, and never seek disproportionate damage to civilians in pursuit of another objective. The choice to carry out the attacks during the morning rush hour reveals this to be a war crime of historic magnitude.
Why not try al Qaeda members in Article III federal courts, with a civilian judge and a jury? Federal judges have never been involved in the detention of POWs or unprivileged combatants. Only in 1996 did federal courts gain limited statutory jurisdiction to hear war crimes matters, and no federal court has ever heard such a case. Moreover, just consider the logistics. It is hard to imagine assigning three carloads of federal marshals, rotated every two weeks, to protect each juror for the rest of his life. An al Qaeda member trained in surveillance can easily follow jurors home, even when their names are kept anonymous. Perhaps it is only coincidence that the World Trade Center towers toppled the day before al Qaeda defendants were due to be sentenced for the earlier bombings of East Africa embassies -- in a federal courthouse in lower Manhattan six blocks away. But certainly before Sept. 11 no one imagined the gargantuan appetite for violence and revenge that bin Laden has since exhibited. Endangering America's cities with a repeat performance is a foolish act.
If there are a sizeable number of al Qaeda captures, the sheer volume will also be disabling. At a rate of (at most) 12 defendants per trial, trying 700 al Qaeda members would take upwards of 50 judges, sequestered in numerous courthouses around the country.
In federal court, as well, there are severe limitations on what evidence can be heard by a jury. Hearsay statements of probative value, admissible in military commissions, European criminal courts and international courts, cannot be considered in a trial by jury. Historically, Anglo-American juries were thought incapable of weighing out-of-court statements, and the Supreme Court attached many of these jury rules to the Constitution. So bin Laden's telephone call to his mother, telling her that "something big" was imminent, could not be entered into evidence if the source of information was his mother's best friend. In a terrorist trial, there are few eyewitnesses willing to testify, because conspiracy cells are compartmentalized, and witnesses fear revenge.
There is also the problem of publishing information to the world, and to al Qaeda, through an open trial record. As Churchill said, your enemy shouldn't know how you have penetrated his operations. The 1980 Classified Information Procedures Act helped to handle classified secrets at trial, but doesn't permit closing the trial or the protection of equally sensitive unclassified operational information.
An international tribunal is even less practical. The ad hoc criminal tribunals created for Yugoslavia and Rwanda by the U.N. Security Council have not enjoyed the confidence of Western powers in obtaining intelligence intercepts for use at trial. Americans could not expect to fill the majority of slots in an ad hoc tribunal, and a trial chamber of three to five judges might have no Americans at all. Moreover, the tribunal for Yugoslavia has operated at a snail's pace, trying only 31 defendants in eight years, at a cost of $400 million.
It is even more fanciful to propose that a largely Muslim court should be delegated to try bin Laden and company. Arab and Muslim states will fear the reaction of their own local militants. And Israel might properly wonder why it could not also serve on such an international court, since bin Laden's fatwa called for the murder of Jews and Americans. No Arab state would participate, of course, if an Israeli judge served. This does not preclude offering into evidence, at a military tribunal, the works of international law by Muslim jurists that show that the standards of protecting innocents are universal.
Procedure and Evidence
Congress will want to consult on the nature of the military tribunals established by President Bush. Congress's input will be useful to the administration in crafting rules of procedure and evidence, as well as in thinking about added safeguards for alleged terrorists discovered within the U.S. Civilian judges can serve on military tribunals (civilians served at Nuremberg), and few hearings may be closed, except for sensitive portions. Habeas corpus review remains available for aliens arrested in the U.S.
But it is also plain that Congress long ago agreed to the president's power to convene military commissions (under U.S. Code, Title 10, Section 821). In addition, the president has inherent constitutional power as commander-in-chief to convene such tribunals, an argument acknowledged by Chief Justice Harlan Fiske Stone in a 1942 opinion. (Stone, writing for a unanimous Supreme Court, declined to set aside the military trial and execution of German saboteurs who had entered the U.S. to destroy war plants.) The president is also authorized by statute to write rules of procedure and proof for military commissions, and to decide whether or not it is "practicable" to adopt the ordinary rules of common law and evidence.
The thought of printing stationery for the "United States district court for the district of Afghanistan" sounds rather absurd. And for good reason. This danger is too serious to be left to the civilian courts.
Ruth Wedgwood, a former federal prosecutor, is a professor of international law at Yale and Johns Hopkins University.