Military Tribunals for Suspected Terrorists Raise Question of Justice Versus Rights by Anna Gawel President George W. Bush recently signed an executive order that calls for suspected terrorists or people associated with terrorists to be tried in U.S. military tribunals instead of the civil court systemóa decision that has set off a constitutional firestorm that may linger for years to come. The order is drawing sharp criticism from legal scholars, civil liberties groups and some lawmakers who say the executive branch may be violating the rights of U.S. non-citizens and overstepping its bounds. But advocates of tribunals argue that they are critical to preserving national security and are the only realistic way to achieve justice under the complexities of todayís war on terrorism. Specifically, the Nov. 13 order states that any individual ìwho is not a United States citizenî and who has been deemed by the president to have been or have harbored a member of the al Qaeda organization, or anyone who has engaged in, aided, abetted, or conspired to commit acts of international terrorism, or acts that ìthreaten to cause, or have as their aim to cause injury to or adverse effects on the United State s,î is subject to trial in a military tribunal in accordance with rules and procedures to be established by the secretary of defense. Most critics of the order do not oppose the use of tribunals for enemies captured abroad with no legal ties to the United States. The dilemma centers on the broad wording of the order, which technically covers more than 18 million permanent residents, refugees and other non-citizens living in the United States, the majority of whom are here legally. The fact that millions of U.S. immigrants fall under this blanket has prompted some organizations, such as the Center for Constitutional Rights (CCR) in New York, to consider taking legal action if the tribunals are actually used. ìUnder this executive order, any person who is not a citizen can be tried under these tribunals, and the president has the sole discretion of whether people are tried.Ö Thatís frightening,î said Bill Goodman, legal director of the CCR. More troubling for some are the vaguely defined criteria for trying individuals. ìThe instructions are very darn broad. It covers anyone who has engaged in or aided a person or organization suspected of having terrorist ties, even someone who could have contributed $100 to a charity that has links to terrorist groups Ö even if they didnít know it,î said Bob Levy, a senior fellow in constitutional studies at the CATO Institute. ìNothing says you have to even know youíre aiding or abetting.î Military tribunals are rarely invoked except in times of war primarily because of the conflict with due process. While the issue becomes murkier with illegal immigrants, legal immigrants enjoy the same rights guaranteed under the Bill of Rights that citizens do, according to Thomas Sargentich, a law professor at American University. With military-appointed juries and little opportunity to question witnesses beforehand, experts say tribunals run the risk of trampling certain due process rights, including the right to a fair trial, to confront witnesses, and to examine a witness or juror to determine competency jury. The apparent lack of appeal power is another aspect of Bushís order that has many groups possibly gearing up for a legal battle. The order states that people tried under tribunals ìshall not be privileged to seek any remedyî in any other court here or abroad. Therefore, the only recourse for those convicted in a tribunal would be to turn either to the president or to the secretary of defense for an appeal or pardon. Moreover, a conviction in a tribunal only requires a two-thirds vote by a majority of the members present at the time of the vote, as opposed to a unanimous verdict by a 12-member jury. Certain problems could potentially arise with this system. For example, Robert F. Turner, associate director for the Center for National Security Law, described a situation whereby only two votes would be necessary to reach a guilty verdict if the jury consisted of five members and ìtwo of the military officers wanted to vote not guilty but knew the president wanted a vote of guilty, so they decided to be no-shows.î The remaining three jury members would still constitute a majority present at the time of the vote. ìFirst of all it may never happen, but it could happen,î Turner said. Overall though, Turner sees tribunals as the only viable option in these ìextraordinaryî times for several reasons. First, he cites the inherent inability of the civil courts to deal with the exigent circumstances of a war, mainly because of their narrow evidentiary rules, which are some of the strictest in the world. For instance, if during a legal search, a gun is found directly linking the suspect to the crime, but during that same search, the suspectís rights were infringed upon in some way, the gun could not be admitted into evidence. However, during raids of al Qaeda headquarters or caves in Afghanistan, soldiers do not exactly have the luxury of reading the enemy their rights or issuing a proper search warrant beforehand. Similarly, hearsay testimony (testimony removed from the first person) is not allowed in criminal court. But often times with highly covert terrorist organizations, the government only has tips and leads from people far removed from the actual terrorist to rely upon. Most important, an open court may threaten national security and endanger American lives. It has recently been argued that vital information about the construction of the World Trade Center was revealed during the trials of the first WTC bombing in 1993óinformation that bin Laden may have later used to plan the second attack. ìIn order to get a conviction of a terrorist under our system of justice, youíre going to have to compromise your whole counter-intelligence infrastructure Ö expose secret agents Ö and risk tens of thousands of lives in the future,î Turner said. ìThe due process of the terrorists has to be waived against the rights of potential victims.î Turner said that only parts of the trial may have to be kept under wraps for security purposes and that closed tribunals can be fair, especially because the U.S. government would not risk putting on a kangaroo court for fear of losing credibility with its allies. But the secrecy issue, along with Americaís acceptance of the death penalty, has some European alliesómost notably Spainónervous about extraditing possible suspects to the United States. But on the home front, public outcry has been minimal. A recent poll by The Washington Post and ABC News found that Americans overwhelmingly support military tribunals, with 59 percent favoring them and only 37 percent endorsing criminal courts. Although the public may be firmly behind the president, legally speaking, Bush may be on shakier ground. In the past, military tribunals in the United States have been few and far between, and each side has taken this lack of precedence to bolster their argument. But the Supreme Court has only touched on the issue twice before, leaving the door open to different interpretations of its rulings. In the Civil War case ex parte Milligan, a military court sentenced a civilian to death for ìdisloyal activities.î The Supreme Court overturned the verdict, ruling that martial law can never exist when the normal courts are open and operating. However, the Supreme Court muddled the issue in a 1942 case, ex parte Quirin, involving eight Nazi saboteurs, when it ruled that the Germans could indeed stand trial in a military tribunal. Although Sargentich and Goodman both caution that at the time of this ruling, Congress had passed an official declaration of war, and under international law, the Nazi saboteurs were considered to be enemy belligerents, or soldiers of war. In spite of the constant referrals to the ìwarî on terrorism, no formal declaration of war has yet been passed, and members of bin Ladenís al Qaeda network do not neatly fit under the international definition of soldiers. Thus, it is not exactly clear if Bush needs Congressís approval to pursue military tribunals, although his order has already stirred some heated exchanges on the Hill, particularly with Attorney General John Ashcroft, who, testifying before the Senate Judiciary Committee, accused critics of pandering to ìfear mongeringî and giving ìammunition to Americaís enemies and pause to Americaís friends.î For now, Congress, weary of the presidentís strong public backing, seems content to keep the issue in the media spotlight with committee hearings and public debates. Legal scholars are nonetheless concerned that too much power has been amassed in the executive branch and believe a Supreme Court challenge is likely in the years to come if tribunals are in fact enforced. Of course the entire issue could be a moot point: A feder al grand juryónot a military tribunalóin Alexandria, Va., recently indicted a French citizen on charges of conspiracy relating to the Sept. 11 attacks. However, Levy pointed out that even if tribunals are not used, there is still the potential for abuse because the order is ìon the books,î and down the line a future president may enact the order to try immigrants for reasons that have nothing to do with terrorism. In the meantime, Levy dubbed the recent policy changes as ìlaw that is being made up as we go along.î Indeed, Secretary of Defense Donald Rumsfeld is now in the process of ironing out the details of how such a tribunal would work. It remains to be seen if this order will ultimately pit the legislative branch against the executive branch or result in future legal wrangling with the Supreme Court, but with new developments unfolding every day both here and abroad, the uproar will not be dieing down any time soon. Anna Gawel is the assistant editor for The Washington Diplomat.