- The Washington Times - Monday, December 10, 2001

If a Japanese pilot had ejected over Hawaii during the attack on Pearl Harbor and then been apprehended, any number of things might have happened to him. Having his Miranda rights read to him is not one of them. Nor would he have been indicted for vandalism of government property. Today, however, as we fight a war against a different sort of enemy, some people have trouble accepting that our criminal justice system is not suited to every task.

You could try enemy soldiers in civilian courts, of course. Everything they do in combat falls into some category of the criminal code homicide, assault, trespassing, and who knows what else. You could regard the Wehrmacht as just an oversized German street gang, to be dealt just as we deal with any other street gang.

President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement.

The Constitution and our legal system go to great lengths to make sure innocent people are not sent to prison even though that inevitably means some of the guilty will also go free. When you are in a mortal struggle with foreign enemies who have killed thousands of Americans and are trying to acquire weapons capable of killing millions, you don't want to err quite so much on the side of protecting innocent suspects. Your main priority has to be killing or capturing all those who pose a threat, even if a few bystanders suffer as a result.

In an ordinary war, captured combatants could expect to be packed off, without the benefit of due process, to a prisoner-of-war camp for the duration of the conflict. That's what happened to German POWs in World War II. By analogy, al Qaeda terrorists caught in Afghanistan, or even on American soil, could rightfully be imprisoned without trial for as long as this war continues, even for decades. We have no obligation to free them so they can go back to trying to kill us, and we don't have to prove their guilt beyond a reasonable doubt before we lock them up.

The impression you might get is that terrorists who are not fighting for a sovereign government are entitled to more generous treatment than POWs. Not true. Soldiers, to be eligible for the protections of international law, have to wear uniforms, carry their arms openly, and observe the established rules of war such as not deliberately targeting innocents. Osama bin Laden's operatives don't abide by these rules. So, nations attacked by them have greater latitude in dealing with them, not less.

It makes sense for these tribunals to do some things differently from civilian courts. Some parts of the proceedings, for example, may need to be kept secret. One reason is that many informants won't testify in open court for fear that terrorist organizations will kill them or their families.

Another is that we don't want to expose intelligence sources. Last week, University of Chicago law professor and liberal heavyweight Cass Sunstein told the Senate Judiciary Committee it would be "a terrible mistake" to force the U.S. government "to choose between (a) letting a terrorist go free and (b) disclosing material that is likely to threaten the safety of the nation's people."

The idea of turning Osama bin Laden and his lieutenants over to military tribunals has gotten qualified endorsements from other legal experts who wouldn't be caught dead at a Republican gathering. Harvard law professor Laurence Tribe, who argued Al Gore's case when last year's election dispute went to the Supreme Court, testified that these tribunals are constitutional and that some of the customary safeguards shouldn't apply. "I think you'd have to be kind of pig-headed not to recognize that insisting on these ordinary rules, doing business as usual, would be too much," said Mr. Tribe.

Mr. Sunstein agrees that "civil libertarians have gotten prematurely worried." He thinks military tribunals are perfectly acceptable, while recommending some basic safeguards such as letting the accused know the charges against him, granting the presumption of innocence, and providing daily transcripts of closed trials, with only genuinely risky information deleted.

The point is not that everything the administration proposes deserves uncritical acceptance. It's that we need to look at this function of our government as an arm of national defense, not as a twin of criminal justice.

Our first goal is helping to win the war and eliminate the threat posed by terrorists. Our second is to dispense justice according to reasonable norms of fairness. Military tribunals, done right, can achieve both.

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