As hundreds of people were being detained in American jails on unspecified charges and American forces were strenuously bombing Afghanistan in search of the enemy, President Bush issued a military order establishing that "individuals acting alone and in concert involved in international terrorism" would be subject to trial by military commissions. The November 13 order’s scope, its sweeping language, and its declaration that “it is not practicable to apply… the principles of law and the rules of evidence generally recognized in the trial of criminal cases" has caused an international uproar.

As Afghani and U.S. forces intensified their search for Osama bin Laden and his colleagues, we asked five legal experts to analyze the questions raised by the Order itself, the potential of military commissions as a deterrent against terrorism, and the ramifications of such trials for international justice.

Justice Richard Goldstone, William Bourdon, and Michael Ratner all define the September 11 attack on the World Trade Center as a crime against humanity, which automatically triggers universal jurisdiction. They strongly favor Ad Hoc international tribunals under the sponsorship of the United Nations. “An international tribunal would better serve the interests of the victims,” argues Goldstone, “because it would further the coalition… It would convince the whole international community, particularly the Islamic community, that the United States has a strong case. Many people out there doubt it… because nobody has seen the evidence. Until the evidence is disclosed and established on a fair basis, people are not going to accept it. It’s absolutely crucial in the fight against terrorism that that be done.”

From his vantage point in Paris, William Bourdon sees the Order as “demonstrating the absolute incoherence of U.S. foreign policy. On the one hand, it sought UN authorization for a military response in legitimate self-defense; it then went to NATO …and then, even as it runs a military/intelligence coalition to combat the international crime, it refuses an international tribunal.”

Ruth Wedgwood, a strong supporter of military commissions for the prosecution of Al Qaeda, hopes that the public concern aroused by the Order will influence the final drafting of the rules and procedures. She believes that a balance can be struck between the imperatives to protect sensitive evidence, the guarantees of due process, and the safety of the commission participants. Because the attack took place on U.S. territory and the majority of victims were U.S. nationals, she insists that the United States hold these trials. “This is not, dare I say, “a case for universal jurisdiction.”

Our U.S. experts called attention to the long history of military commissions, which were used by Presidents Washington, Jackson, Lincoln, and Roosevelt, in times of war. Unlike other prosecutions, military commissions are commander-driven, and the rules are written on a case-by-case basis. The key precedent for military commissions in the modern age is Ex parte Quirin (1942), in which a group of German saboteurs who landed on U.S. shores were tried amid great secrecy during wartime. As Judge Evan Wallach states, “The hallmark of Quirin is extremely wide latitude in the admissibility of evidence.” An expert on the post-World War II war crimes trials, Wallach explains, “Quirin rules were folded into the Nuremberg trials of ex-Nazis, and the Nuremberg rules were incorporated into the Tokyo trials.” Scholars agree that while the main trial at Nuremberg was admirably fair under the circumstances, the rules of evidence and procedure used there–and especially in the more remote tribunals of lesser war criminals–would not comport with today‘s international standards of due process. Lieutenant Colonel Jeffrey Walker observes that the European Court of Human Rights has recently ruled against commander-driven trials, and ordered such a system to be dismantled in the UK.

Our experts seemed to feel that the language of the Order is both “too broad” and “overly determinative.” According to Michael Ratner, “as outlined in the extremely broad language …the procedures do not comport with the Fourth, Fifth, and Sixth Amendments, and with what international law requires generally….There is also ambiguity on the issue of Habeas Corpus, which requires that a person’s detention be explicitly justified. Just being designated for trial becomes a terrible uphill battle where a defendant’s innocence, rather than his guilt, has to proved.” Lt. Col. Walker pointed to the “overly determinative” Section 7 (2), which deprives the defendant of any remedy …in any court of the United States, or any State thereof, any court of any foreign nation, or any international tribunal. The right to appeal is basic, insists Walker, especially in a court specifically devised to deliver the death penalty.

The way in which the prosecutions are handled will profoundly influence the aftermath of September 11 around the world. The Crimes of War Project will continue to monitor developments and provide a forum for legal experts to debate the breaking issues.

“The Military Tribunals on Trial”
By Aryeh Neier
The New York Review of Books, February 14, 2002

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