It is not clear whether the newly proposed Department of Homeland Security will have jurisdiction over terrorists who have been captured. But somewhere those in high authority need to confront the great dangers inherent in trying members of international terrorist organizations in our courts of law.
Those dangers were apparent years ago, when terrorists who committed the first World Trade Center bombing in 1993 were put on trial. Even aside from the extraordinary security that had to be provided for the protection of the judge and jury, the methods by which the terrorists were caught had to be revealed in court, thus enabling terrorist organizations to change their modes of operation, in order to escape detection by such methods.
Neither the criminal law nor the rules of the Geneva Convention are suited to terrorism. International terrorism is an act of war without a formal declaration of war by the sovereign nation that is sponsoring the terrorists. Terrorism is not simply a domestic crime, even when it occurs within our borders. Nor are the terrorists soldiers, as defined in the Geneva Convention.
Those who are wringing their hands over whether the cutthroats imprisoned in Guantanamo are being treated as well as prisoners of war are missing the point that they are not prisoners of war. Terrorists are much more like spies or military infiltrators out of uniform, whom nations have summarily executed for centuries.
During the Battle of the Bulge, near the end of World War II, some specially trained German soldiers who spoke English put on American uniforms and infiltrated the American lines to disrupt and confuse U.S. military operations. When caught, they were lined up in front of a firing squad and shot. The protections of the Geneva Convention's rules of war are for those who play by those rules.
Terrorists who infiltrate the American homeland are combatants, not criminals, and they are combatants out of uniform who disregard the rules of war, forfeiting the protection of those rules. "Rights" are not things plucked out of thin air. They are products of particular arrangements -- and apply only to those who are subject to those arrangements and who respect those arrangements.
Our criminal law is not merely inappropriate for dealing with terrorists. It is a crippling handicap that can trade thousands of American lives for meaningless shibboleths. The "discovery" process in our legal proceedings can expose not only anti-terrorist operations but also the people in various parts of the world who have aided and abetted our efforts.
Those people's lives are on the line after such discovery -- and other people who might help us are put on notice that their lives can be jeopardized if they do. Even foreign governments have to worry about what the repercussions can be if their cooperation with American anti-terrorist operations becomes public.
Given the need for unanimous jury verdicts, it takes only one frightened juror to let a mass-murdering terrorist go free. Even if jurors' names are kept secret -- no easy task -- the judge's name cannot be kept secret, and he and his family are subject to threats from ruthless international terrorist organizations.
Suppose that, in spite of all this, a terrorist is convicted of first-degree murder and sentenced to execution. It will probably be at least a decade before our cumbersome criminal justice system will allow him to be executed. And, during all that time, the terrorist organization that he belongs to can plot to capture numerous hostages and threaten to kill them all unless he is released.
What Congress might better be spending its time on, instead of raking over the past, is preparing for the future by creating a body of law and a set of institutions designed specifically for dealing with captured terrorists. A military tribunal could provide a model, if so many politicians and professional hand-wringers had not already demonized these tribunals.
Maybe this tough issue will not be faced until we are confronted with another terrorist attack of the magnitude of that last September 11th -- or worse. There are too many people with a vested interest in finger-pointing or moral preening.