The Bush Administration's latest legal move to combat terrorist activity
should be viewed skeptically, for it may sacrifice Constitutional principles
in pursuit of enhanced safety. Citing an "extraordinary emergency,"
President George W. Bush signed an executive order allowing non-U.S.
citizens accused of terrorist activity to be tried by military tribunals.
But because the order contained scant details, the devil will be in the
The executive order was by no means entirely bad, and likely not
unconstitutional. In fact, it was a necessary action to ensure swift
justice for terrorists and their sponsors who are beyond the reach of our
courts. The real problem is that legal residents in America accused of ties
to terrorism can be denied Constitutional and evidentiary protections
afforded even to guilty-as-sin axe murderers.
Some on the left are whining about the use of the tribunals at all.
Depending on which member of the coffee house/Ivory tower crowd you ask,
either standard criminal trials or a UN-led international court should be
the answer. But for suspected terrorists we nab in a foreign land, either
alternative is just silly. U.S. criminal courts are ill-equipped to handle
foreign nationals who committed or masterminded acts of war. And yet
another impotent and glacial-paced international tribunal will be more of an
immovable obstacle than anything else.
There are some tactical advantages to Bush's action. Military-style
justice for those caught in Afghanistan and elsewhere will have the added
benefit of encouraging key defections from the Taliban and Al'Qaeda.
Presenting their members with the stark alternative of no-frills
imprisonment, if they're lucky, versus leniency for defecting could do
wonders for our "recruitment" efforts.
Bush has legal precedent for his move, and it should be able to withstand
constitutional challenges. During World War II, eight German soldiers
landed on the shores of Florida and Long Island and were thwarted before
carrying out planned bombings. President Franklin D. Roosevelt ordered a
military trial for them, and the Supreme Court found the military trials
Because the German soldiers were acting against the laws of war in
attempting to bomb non-military targets, the Court held that they were
"subject to trial and punishment by military tribunals for acts which render
their belligerency unlawful." The Court justified the ruling by noting that
the planned conduct had the intended "purpose of waging war by destruction
of life and property," making the soldiers offenders "against the law of war
subject to trial and punishment by military tribunals."
Although the executive order is grounded in law and common sense, the
question of enforcement could become an area of great concern. As with most
aspects of the Senate's version of the now-enacted anti-terrorism bill, the
order is open-ended and uncomfortably vague. Any non-U.S. citizen
suspected of being a terrorist or helping one comes under the purview of a
The seemingly limitless scope begs serious questions. What about
permanent legal residents who committed illegal actions, but had no
terrorist intentions? What about someone who appears possibly guilty, but
is in fact innocent? And because the order isn't limited in scope to people
connected to the actions of September 11th, what defines an act as terrorist
in nature? These questions, and many others, won't be answered for some
Much more troubling than the lack of Constitutional protections for the
accused is the disposing of evidentiary rules that apply to criminal trials.
Unlike liberty-related safeguards, rules of evidence are in place not to
protect defendants, but to weed out unreliable information, such as hearsay.
How do we benefit if innocent people rot in jail cells because of shaky
So why should American citizens care about some injustice being done to
non-citizens, some of whom may in fact be terrorists? One of the many
amazing qualities of our system is that immigrants are protected by the same
Constitution as the rest of us. If we start destroying the liberties
enjoyed by non-citizens, there's no magical barricade to shield everyone
Using military tribunals to try suspected terrorists could prove to be a necessary move, and one that does no harm to the rights of those accused.
But if abused, it could lead us down a path we should always be loathe to
take, even in times of war. Benjamin Franklin said it best over 200 years
ago: "They that would give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."