Let me begin by saying that a military commission is a time-honored legal recourse for times of war and, make no mistake, we are at war with Al Qaeda. Osama bin Laden declared war against the United States in 1998, issuing a fatwah in May of that year stipulating that all U.S. citizens were targets. Since September 11, he has reiterated, indeed strengthened and expanded his fatwahs. He masterminded the U.S. embassy bombings in Kenya and Tanzania in August 1998, was behind the attack on the U.S.S. Cole, and is responsible for the attacks of September 11. He is a supremely dangerous man who heads a supremely dangerous network. Does he have nuclear weapons? We don’t know. But we do know that he has been shopping for them.

The military commission is the traditional way of prosecuting war crimes. The ethical precepts of proportionality and discrimination—now referred to as IHL (International Humanitarian Law)—were originally part of the law of armed conflict and were developed in military courts. The Geneva Conventions require the commander to search the battlefield at the end of the war for both his own violators and the enemy’s violators, and to ensure that they be prosecuted. These offenses have always been tried in military courts. The notion that military commissions will "usurp" or "hijack" jurisdiction from civilian courts is erroneous. At issue here is military law.

The military commission takes us into a legal paradigm where important operational information can be protected while a conflict is ongoing. As opposed to a criminal prosecution in a federal district court, for example, there is a greater possibility of safeguarding not just intelligence and technically classified information, but other documents made highly sensitive by the nature of the circumstances. The courtroom can be closed for the limited occasions when sensitive operational information is discussed and the rules of evidence can give somewhat greater latitude in considering probative evidence. When you are facing a threat as extreme and imminent as that of Al Qaeda, you cannot afford to give up intelligence that is important for your own protection. In the trial of the East African embassy bombings in U.S. district court, the Al Qaeda operating manual was entered into evidence; they knew what we knew about their standard procedures, so of course they could change them. In a normal civilian trial, you can almost never close the courtroom. Judges read the 6th Amendment guarantee of public trials in a prophylactic way, so normally a criminal trial is wide open, both in the actual hearing and in the disclosure of evidence to the defendant. (Virtually the only exception to this pattern is the civil trial that may be closed to protect trade secrets. In my experience, some judges have even refused to close the courtroom during juvenile cases.)

It has been argued by those who oppose military commissions that CIPA—the Classified Information Procedures Act, which I worked on when I was first out of law school—provides adequate protections for the evidence used in civilian criminal prosecutions. CIPA was designed to meet the trial tactic of "greymail"—the intimation by a defendant formerly connected to the intelligence community that at trial he may need to disclose classified information. CIPA requires the defense attorneys to give notice of the classified information they want to use, and it requires the judge to rule on materiality. Sometimes a judge will issue a general protective order, allowing a generic description of the evidence rather than disclosure of the specifics. For example, if a person is accused of passing a classified satellite operating system manual to a foreign nation, you would not want to disclose the serial numbers of the various components and instructions on how they work, and might substitute a more general description. However, there are occasions when you can’t really bring the case forward without compromising sensitive information. CIPA doesn’t solve all the problems because, once again, a civilian courtroom is open. Whatever the press and public know, Al Qaeda knows.

There is a misperception that in the closed portions of a military commission, the defendants are kept from knowing the evidence against them. This need not be the case. One could reveal classified information or electronic interceptions to the defendant and his lawyer and forbid them from broadcasting the evidence generally. If the defendant is already in custody, the judge can issue a protective order limiting his contacts with outsiders, i.e., with members of the criminal organization to which he is known or alleged to belong. This is also done in civilian courts with members of the Mafia, gangs, or other criminal organizations. My point is that in a military commission setting, you can assure complete fairness in the sense of being able to meet the proof, examine and counter the proof by revealing it to the defendant, yet not reveal it to the outside world.

The military commission affords the advantage of entering types of evidence that would be inadmissible in a civilian trial. In this way, it resembles European and international courts. For instance, you can admit hearsay evidence where it appears to be reliable and relevant. Let’s say, you know that Osama bin Laden phoned his mother and spoke of the imminent attacks and that the mother reported this to her best friend. Now if the mother’s best friend is not vengeful, has no motive to distort or otherwise misrepresent the conversation, you could call her to testify. Her testimony, one degree of hearsay, would have probative value. Such testimony was allowed at Nuremberg and is admissible at the war crimes tribunals in The Hague. It is really only American jury trials that have this unique restrictiveness on the admissibility of out-of-court pronouncements. Ironically, the Anglo-American jury system has seen a pronounced historical distrust of juries as fact-finders, including their ability to appropriately weight varied kinds of evidence.

Whenever you start up a new court system, there is justifiable concern about its constituent parts and the ramifications of those elements. The Executive Order of November 13 is under-determinative. The rules of evidence and procedure have yet to be written. I hope that public concern will indeed affect how those rules are drafted. As to why this Order was released so quickly and with so few details, I think there are essentially two reasons. One is to let Al Qaeda know that its captured members will face stern justice; and second, U.S. forces may take surrenders on the battlefield, as the fight in Afghanistan comes to a close. Would it not be anomalous to airlift hundreds, if not thousands, of Al Qaeda fighters from Afghanistan to stand trial in federal district court, four by four, for the next 150 years? Most people I’ve spoken with—whatever their persuasion—seem to think so. For battlefield captures, we need military commissions, which can be held anyplace that is deemed sufficiently secure.

Let me say that it is not good for anyone to hold trials in hurried circumstances. The first principle of armed conflict is that you can detain captured adversaries for the duration of the conflict. Section 1(e) of President Bush’s Order authorizes the detention of unprivileged belligerents belonging to Al Qaeda while the conflict continues. The immediate problem is to incapacitate the Al Qaeda network until the threat is passed, and detention under the laws of war accomplishes this equally as well as trials. What does it mean to try 1500 people? Since World War II, we think about proof in a highly particularized way. Most judges don’t like to try more than 8, 10, 12 defendants at a time, for fear that the proof will get conflated, mixed-up. This is going to be a great challenge for everyone, and we want to be careful with procedures and logistics.

After all, battlefield captures will not be like a typical criminal case where you know everybody’s name and a great deal about them based on extensive surveillance. Defendants might be designated as John Doe. Knowing membership in Al Qaeda is one possible criminal offense here. If you have captured someone who is fighting on the battlefield or hiding in a cave with other Al Qaeda members, you may reasonably infer that this person is part of the organization. Under conspiracy theory, membership in a criminal enterprise can make you guilty of all the acts of the organization. (The RICO law, developed to deal with organized racketeering, operates on this same principle.)

In ordinary criminal trials during peacetime you are only seeking adequate levels of deterrence. In prosecuting a mugging, you don’t try to rid the world of all threats of mugging. We accept a great deal of personal and property risk in order to allow ordinary liberties, and that is a very precious thing. But Al Qaeda needs to be totally dismantled. Bin Laden has said he wants to acquire a tactical nuclear device to "commit a Hiroshima." He did not expect the World Trade Towers to implode; he wanted them to topple and destroy all the buildings nearby in lower Manhattan.

Returning to the Order, important distinctions need to be worked out.
One area that needs to be clarified concerns those who "aided and abetted" international terrorism (Sec. 2, ii). Does contributing to charities and other social organizations that have been shown to have connections to Al Qaeda constitute a war crime in this context? If we consult the language of the UN Convention on Terrorism, a determination of aiding or abetting must rest on the person’s "intention that [the funds] should be used or in the knowledge that they are to be used in whole or in part" for acts of terrorism.

The Order says that conviction will be made with the concurrence of two-thirds of the judges, provided that a majority of the commission is present (Sec. 4, 7) Given that the Order specifically allows for the death penalty, sentencing procedures will certainly be debated. With respect to European skepticism on the death penalty, we must note that Protocol 6 of the European Convention specifically allows execution in conditions of war.

Good colleagues of mine strongly favor international tribunals, a recourse I oppose for several reasons. The ICTY has processed 31 defendants in eight years. If you capture 700 people on the battlefield, at that rate the Al Qaeda prosecutions would take 200 years! Extraordinary security needs preclude holding these trials in Europe. You may even need to fly air cover over the tribunals so that planes will not enter the area without specific clearance. How can one even consider holding these prosecutions in The Hague, five minutes from the Amsterdam International Airport? We will need remote locations, with unbreachable security.

There is no jurisdictional reason to have an international tribunal. This is an instance where classical theory applies: the attack took place on U.S. territory; the majority of the victims were U.S. nationals. This does not require long-arm jurisdiction. This is not, dare I say, a case for universal jurisdiction. It was an attack on territory, an attack on nationals. The United States is certainly capable and trustworthy of holding these trials.

I sometimes worry that our sense of normalcy is so deeply ingrained that while we know bad things happen, we don’t think they’ll happen soon. September 11 demonstrated otherwise. If we are going to take this seriously, take seriously the idea of IHL and see this attack as Srebrenica writ large, then the law of war must not be used as a timidly reactive enterprise, but rather as one that seeks to prevent future atrocities. The Al Qaeda manual introduced into evidence in the East African embassies bombing trial says that the killing of innocents was approved by clerics in the Al Qaeda movement. If you have an adversary who says, "Nothing will stop me," then I don’t think the old polarities of right and left, liberal and conservative, apply. In terms of the law, for the sake of safety and justice, military commissions are a necessary option.

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