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Military Tribunals - The Necessary Option
Nov. 19, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Lately some have been carping about the issue of military tribunals. Questions are being raised as to its rationale.

There is merit in scrutinizing the appropriateness of the exercise of power, even when it comes to defending a nation at war. John Adams' involvement with the Alien and Sedition Acts, Abraham Lincoln's suspension of habeas corpus, and Franklin D. Roosevelt's internment of the Japanese are examples of misuses of war power.

But military tribunals are different. Tribunals are constitutionally, historically and pragmatically sound for the following reasons.

The new military tribunals are established with reliance upon the constitutional grant to the president as the apex of military authority. It is the primary responsibility of the president, as the commander in chief, to fulfill the express dictate of the Preamble of the Constitution ­ to protect and defend the citizens from foreign attack.

It is this same conveyance of power that Washington, Lincoln and Roosevelt relied upon when they engaged in similar wartime actions. The new tribunals are to be conducted pursuant to The Uniform Code of Military Justice, duly passed by Congress.

A parallel example from the past took place in 1942. Eight Nazi saboteurs were tried in FDR-created military tribunals. All were convicted. Six were executed. And the Supreme Court unanimously upheld both the procedure and the convictions.

According to sources within the Justice Department, the Bush executive order establishing the new military tribunals was drafted by lawyers in the Justice Department for the purpose of trying combatants who are captured on the ground on the field of battle.

The order specifically identifies members of Al-Qaeda and those who would aid or harbor them. It is carefully circumscribed to exclude American citizens from its jurisdiction.

Even the tribunal's fiercest critics acknowledge that, when it comes to foreign combatants captured on the field of battle, the president's action is constitutionally legitimate.

But the order does not exclude those foreign belligerents who are captured within the United States. The president reportedly wanted to retain this alternative in case a terrorist enemy is captured domestically.

This is an important option. Our lax immigration policy and the failure to enforce immigration laws have resulted in abuse and exploitation of our system. Certain individuals have used loopholes within immigration laws to come into this country, with a single purpose in mind. They want to kill us.

Those who murdered 5,000 of our brothers and sisters may not yet be done with their evil deeds. They may be planning additional attacks, including the use of weapons of mass destruction against us.

The new military tribunals will help bring about investigation and arrest of terrorist cell members who are in this country. The threat of the use of military courts may further induce cooperation from suspects.

Our criminal justice system was not designed to handle war crimes trials. In fact, when it comes to administrating cases that stem from the war on terror, our conventional criminal system holds potential danger in a number of different ways.

Terrorists could intimidate a jury.

We cannot ask Americans to serve on a jury during a war on terror when members of terrorist organizations have made it clear they will seek revenge on all who are involved in judicial proceedings.

We do not know how many additional cells have already been deployed, but it is safe to assume the number is significant. A suspect in custody is likely to be connected with other members of a cell, still at large and free to engage in further attacks.

Intelligence could be compromised.

Secrecy in the new tribunals provides protection for our methods of acquiring sensitive information and for our sources. The inevitable compromise of information via conventional criminal court proceedings would impede the ability of the government to shut down other terror cells and would place our sources in serious jeopardy.

Proceedings could provide a platform for propaganda.

In a conventional criminal proceeding, bin Laden, or one of his affiliates, would have the opportunity to state his case to the world. Bin Laden is diabolically eloquent and fiendishly persuasive. The opportunity to incite additional terrorist activity would be huge.

Duration of proceedings poses a danger.

Criminal justice in the United States is not known for being particularly swift. When lives are at stake and weapons of mass destruction are potentially present, speed and efficiency become paramount. Military justice has a proven track record in both areas.

The new tribunals have been established to provide an option. This is a multifaceted war we are fighting. The military tribunal represents a tool in our country's arsenal for use in extraordinary and limited circumstances.

We are not talking about car thieves, shoplifters or burglars. A system designed to prosecute crimes such as these cannot handle the disposition of enemy troops who are probably among us and whose goal is nothing short of murder.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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