Tuesday, November 20, 2001

Measured and compelling. That description befits President George W. Bush’s order last week as commander in chief authorizing trial by military commission of alien enemies suspected of complicity in war crimes, including international terrorism, directed against the United States or its citizens.

Trials might be held either here or abroad, although most likely in foreign lands. Specific procedures for commission trials will be decided case-by-case by the defense secretary.

But substantial departures from the constitutional requirements in criminal cases against United States citizens in civilian courts during peacetime are anticipated:

• Conviction and sentencing by two-thirds majorities.

• Use of secret military intelligence against the accused.

• Closure of part or all of the proceedings from public view.

• Admission of hearsay and sister evidence not subject to cross-examination by the enemy alien.

• And restrictions on the right of the accused to summon allegedly exculpatory witnesses.

The order, however, does not purport to suspend the writ of habeas corpus under Article 1, section 9, clause 2 of the Constitution. Thus, an alien enemy could seek United States Supreme Court review of the constitutionality of his detention under the Ex Parte Quirin (1942) “Nazi saboteur” precedent.

President Bush’s order bespeaks stern but composed resolution, not impetuosity. It came in the aftermath of years of Osama bin Laden’s al Qaeda-sponsored terrorist incidents targeting the United States, that culminated in the September 11 war crimes. The grim prelude included the 1992 killings of United States soldiers in Somalia; the 1993 World Trade Center bombing; the Saudi Arabian Khobar Towers bombing in 1996; the 1998 bombings of embassies in Kenya and Tanzania; the thwarted millennium bombing conspiracy aimed at Los Angeles in 1999; and, the USS Cole attack in 2000 off the waters of Yemen.

Moreover, arch-enemy bin Laden has openly declared war on the United States, and his subordinates and servants in Taliban and al Qaeda have been sleeplessly pursuing biological, chemical, and nuclear weapons, as corroborated by recent evidence gathered from their lairs in Afghanistan.

The maniacal mentality of our al Qaeda and sister enemies like Japan’s Kamikaze pilots in World War II is shown by their lunatic preaching that September 11 was contrived by Jews and the Central Intelligence Agency to cast aspersion on Islam, and that 4,000 of the former stayed away from the World Trade north and south towers on the day of infamy because they were alerted to the impending Jewish-CIA terrorism.

In sum, President Bush resorted to military commissions only after conclusive evidence emerged proving that al Qaeda and its cousin terrorists are fanatically devoted to killing every American, whether civilian or in the armed services, and to destroying our country and its sacred constitutional order. No crime is too squalid for their reptilian ambitions to destroy civilization in all its moods and tenses.

Military commission detractors deserve a careful hearing; but their arguments seem either unpersuasive or premature. It is said that discrepancies from the civilian model for criminal trials threaten conviction of innocent aliens. That model, however, favors the defendant, even when truth favors guilt. That largely explains the not guilty verdicts returned in the murder trial of O.J. Simpson, followed by civil findings of culpability in sequel wrongful death damages litigation.

Thus, proof of guilt is required beyond a reasonable doubt; no adverse inferences may be drawn from a defendant’s silence; no secret evidence may be entertained by the fact-finder, no matter how reliable; and, incontestable incriminating evidence seized in violation of attorney-client, doctor-patient, or priest-penitent privileges or the Fourth Amendment must be suppressed.

In other words, a military commission may be more reliable on the question of guilt or innocence than its civilian counterpart. The Constitution, however, indulges that discrepancy for citizens because of the moral conviction that it is better that some criminals in peacetime escape justice than that an innocent man be punished.

With enemy aliens like al Qaeda fanatics and sympathizers warring against the United States, however, morality and civil liberties alike prefer the possibility that an innocent be unjustly punished than that guilty war criminals be released to attempt multiple new editions of September 11, with the lives of thousands of innocent U.S. civilians in the balance.

No Hobson’s Choice between civil liberties and public safety is implicated. The former includes safeguards against both government action and private predations. And the civil liberties of citizens are every bit as imperiled by government inaction or laxness when villainy is afoot as by overreaching. Think about the blacks lynched with impunity by the Ku Klux Klan during Jim Crow.

Contrary to vocal critics, President Bush’s military commission order is no gratuitous offense to a civilian model. Closed proceedings are authorized to deny public platforms to al Qaeda defendants to celebrate their “martyrdoms” on behalf of Allah and to bolster enemy morale.

Publicity of the defendant’s identity might also alert co-enemy aliens to impending attempts at their capture or killing. That same alert would be risked the defendant enjoyed a plenary right to call allegedly exculpatory witnesses.

Secret evidence is permitted to avoid disclosure of intelligence sources and methods. And nonunanimous verdicts do not besmirch due process. Even in civilian courts, the United States Supreme Court declared in Johnson vs. Louisiana (1972), 9-3 verdicts are constitutionally irreproachable.

War is ugly. But losing a war to Taliban-al Qaeda would be uglier still. And winning entails inevitable targeting errors or imprecision that kill innocent men, women and children who might have equally abominated the enemy. On a moral scale, how are those deaths more dubious than the risk that a suspected alien may be erroneously punished by a military commission authorized by Mr. Bush?

Bruce Fein is a visiting fellow and Yonah Alexander is co-director of the Inter-University Center for Legal Studies at the International Law Institute.

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