On November 13, 2001 — two months after 9/11 — George W. Bush signed an executive order authorizing the U.S. government to try terror suspects in military tribunals, where military officers serve as the judges and jurors, rather than in civilian courts. The President’s decision was swiftly and widely condemned by the political left, which accused him of trampling on the civil rights and liberties of defendants who, the critics said, should be entitled to all the rights and protections afforded by the American criminal-court system — where the standards that govern the admissibility of evidence are considerably stricter than the counterpart standards in military tribunals.
The Defense Department explained that military tribunals were designed to deal with offenses committed in the context of warfare — transgressions such as pillaging; terrorism; killing or attacking civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.
In June 2006, the Supreme Court determined that military tribunals were not authorized by federal law. This did not mean that the rules governing such tribunals were necessarily flawed or unconstitutional, but only that those rules needed to be formally voted into law — or formally rejected — by Congress. In response to this decision, five months later Congress passed the Military Commissions Act of 2006, formally authorizing the adjudication of war crimes and terrorism cases in military courts.
But the left argued that military tribunals were inappropriate venues in which to try defendants captured during the Iraq War because Congress, which has the sole authority to make formal declarations of war, had not done so in the case of Iraq. There was considerable precedent, however, for trying accused war criminals in military courts even in the absence of a Congressional declaration of war. President Abraham Lincoln, for example, used military commissions extensively to sentence Confederate terrorists for such crimes as seizure, arson, and the destruction of transportation, communication or other systems of infrastructure during the American Civil War.
In all of U.S. history, Congress has made formal declarations of war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But as law professor Henry Mark Holzer points out, presidents acting in their capacity as commanders-in-chief have sent troops into battle at least 130 times in the absence of such declarations. Sometimes those military conflicts, while not formally declared wars, were explicitly authorized by Congress. Among these were the Vietnam War, the 1991 Persian Gulf War, the 2001 invasion of Afghanistan, and the 2003 invasion of Iraq.
In some other cases, the U.S. has engaged in combat against a particular form of enemy aggression, even though America was not officially at war with the nation from which the aggressors hailed. For example, the 1801 Talbot v. Seeman Supreme Court case involved French privateers who were preying on American commercial ships. In its decision, the Court affirmed Congress’s right to declare a “partial war” against the transgressors. The parallel with the current war on terror, where intelligence and military forces seek to combat saboteurs and killers from a number of nations that are not formally at war with America, is clear.
A secondary consideration in determining if military tribunals are the proper venue for the adjudication of a given case involves the question of whether the defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al Qaeda fails even to come close to satisfying these conditions.
Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.” Attorneys Spencer J. Crona and Neal A. Richardson explain the profound significance of this:
"A relaxation of the hearsay rule might become critical in a prosecution for terrorism where it may be impossible to produce live witnesses to an event which occurred years earlier in a foreign country."
Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop:
“Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject-matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.”
Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them. This requirement (which does not exist in military tribunals) obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who would undoubtedly choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised.
Finally, those who serve as jurors in the civilian trials of accused terrorists may, if they render “guilty” verdicts, be extremely vulnerable to violent retribution from affiliated terrorist and militia groups — another argument against civilian trials for terrorists.
With regard to legal precedent, the use of military tribunals for the adjudication of war crimes is in no way a departure from past practices. Military commissions were used during the American Revolution, the Mexican-American War of 1846-48, the Civil War, and World War II. The most famous WWII-era case involved eight marines of the Third Reich (one of whom was an American citizen named Herbert Haupt) who rode a Nazi U-boat to the east coast of the United States, where, laden with explosives, they disembarked and set off toward various locations with the intent of bombing railroads, hydroelectric plants, factories, department stores, and defense facilities across the country. The saboteurs were wearing no military uniforms or identifying emblems when they were captured, meaning that technically they were “unlawful combatants.” Refusing to grant the perpetrators civilian jury trials, President Franklin D. Roosevelt quickly created a secret military commission to hear their cases. All eight were convicted and sentenced to death, though two later had their sentences commuted to life in prison.