December
26, 2001
Introduction
Interviews
and Introduction by Marguerite Feitlowitz
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 orders 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. Its 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 thereand especially
in the more remote tribunals of lesser war criminalswould
not comport with todays 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 persons detention be explicitly justified. Just being designated
for trial becomes a terrible uphill battle where a defendants
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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