Wednesday, November 28, 2001

With the Taliban and al Qaeda militias facing defeat in Afghanistan, there is a good chance that some of those who helped plot the September 11 attacks on the World Trade Center and the Pentagon, which killed some 4,000 people, will fall into U.S. hands. As foreigners who have engaged in acts of unspeakable violence against the United States, it would be inappropriate to accord them all the constitutional rights of U.S. citizens in a court of law. They do not fit any of the criteria for such gentle and “equal” treatment.

The business community has suffered the most from the terrorist attacks, in terms both of those killed and of the impact on the economy since. Osama bin Laden’s claim that “the twin towers were legitimate targets, they were supporting U.S. economic power” implies that other commercial targets may be attacked. Business leaders should rally behind the president in his efforts to deal resolutely with those responsible through the use of military commissions.

The commissions are intended for use against the most notorious terrorists, not the hundreds or thousands of enemy fighters who may be captured in Afghanistan. Secretary of Defense Donald Rumsfeld said Nov. 19 that because there are so few U.S. troops in Afghanistan, “We are not in a position to have people surrender to us. If they try to, we are declining.” Though Marines have now reinforced the U.S. presence near Kandahar, the preference still will be to let the Northern Alliance handle prisoners of war American operatives are focusing on a handful of enemy leaders who are well known in intelligence circles.

The purpose will be less the prosecution for individual acts of terror, than the identification of those who have played a major role in the al Qaeda network. Fiascos like last year’s trial of two Libyans charged in the 1988 bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland, must be avoided. The two suspects were employed by Libya’s intelligence service. Yet, they were tried as individuals in The Netherlands, after lengthy and complex negotiations over arcane legal procedures that left the United States looking weak and indecisive. Only one terrorist was convicted, the death penalty was ruled out and Libya was let off the hook for any responsibility as a state sponsor of terrorism.

Though they have committed acts of war, members of al Qaeda are not properly in the category accorded status as prisoners of war. They are not regular combat troops who have fought openly under the rules of war. We could not risk turning them loose again, as such leniency would only encourage them to plot new attacks. They are not even entitled to consideration as guerrillas, who have some status as combatants if their actions have been directed at military targets and not innocent civilians. The essential legal distinction between a guerrilla and a terrorist is that by targeting civilians the terrorist places himself outside the rules of war and cannot claim their protection. The terrorist is a war criminal, in a class by himself.

Location does not change their status as terrorists. Indeed, by operating in civilian guise against civilian targets, those who have operated inside the United States have made themselves true “outlaws.”

Mr. Bush has not gone as far in creating military commissions as did President Franklin Roosevelt during World War II. In the often cited case of the German saboteurs who were tried by a 1942 military tribunal in Washington, only one was a U.S. citizen. Mr. Bush’s order applies only to noncitizens. It does not reduce or change in any way the rights of U.S. citizens. The alarmist views expressed by some self-styled civil libertarians are thus misdirected.

The military order is meant primarily for use overseas. A 1952 Supreme Court case (Madsen vs. Kinsella) held “In the absence of attempts by Congress to limit his power, [the president] may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.” In the global war against terror, U.S. troops may well occupy foreign territory in which there will be a need for the kind of swift and certain justice than can be meted out by military commissions.

It should also be noted that the 1952 court decision was rendered during the “undeclared” Korean War. The United States has been engaged in military operations and “hostilities” almost continuously since World War II without formal declarations of war by either Washington or by adversaries. Those libertarians who hang their arguments on the need for formal declarations are grasping at straws. The world doesn’t work that way.

The president’s order provides for a “free and fair trial” with “conduct of the defense by attorneys for the individual subject to this order.” Commission verdicts can be appealed to the secretary of defense and are subject to review by the president, who may grant reprieves or pardons. This gives accused terrorists far more consideration than they have ever given their victims.

But military commissions also allow the president to take into account a variety of factors diplomatic, military and intelligence when deciding who to send to the tribunals. The trials will permit the use of secret intelligence, hearsay and other evidence obtained by methods common in war, but not usually permitted in domestic courts.

Is this “victor’s justice?” Of course it is. And those who would attack the United States should take note of it.

William R. Hawkins is senior fellow at the U.S. Business and Industry Council Educational Foundation.

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