- The Washington Times - Friday, February 8, 2002

If you ask this old Marine, the Bush administration's plan to have military tribunals judge some of the terrorist thugs flushed from their Afghan caves is far too good for them. If it was up to me, I'd hang 'em from the yardarm, as sea captains used to do to mutineers.
These are, after all, not legitimate soldiers who have dutifully observed the rules of war and deserve to be treated according to the Geneva Convention. These are mass murderers who skulk about the globe's underbelly and wage war on civilians. Let's not forget the distinction.
So how should we proceed without undermining our values as a civilized society? We obviously can't use the same methods used to induce accused witches to "come clean" during the infamous Salem, Mass., witch trials. And the code of frontier justice used in the Old West probably won't do, either: Hang 'em first, try 'em later.
So that leaves two choices the U.S. criminal justice system, or military courts.
For better or worse, the criminal justice system is so backlogged in some jurisdictions it would be years before the families of the September 11 victims would see justice served. Besides, in order to keep up with the crushing case load, many prosecutors now barter pleas as readily as we traded baseball cards when we were young. Do we really want to see an al Qaeda conspirator get "seven to 10" because the prosecutor's office is swamped with cases?
Better yet, do we want to see an al Qaeda conspirator take a walk because the people who arrested him in Kandahar, Afghanistan, for example failed to read him his Miranda rights? Or, perhaps, roughed him up a bit in the course of putting the shackles on? Or didn't have a proper search warrant when they went through his back pack? Unless we're willing to suspend current law, these and other considerations would all be fair game in a U.S. criminal court.
That brings us back to the military tribunals, which are not encumbered by the same rules, regulations, rulings and precedents that hamstring most U.S. courts, and have helped turn serious legal proceedings into Court TV docudramas. If you think the O.J. Simpson trial was a mockery, just imagine what we'll get when Allah's personal representatives are on the docket.
These are not the only considerations. There is also the matter of public disclosure. As former Deputy Assistant Attorney General Victoria Toensing wrote recently, "September 11, 2001, was not a bank robbery in Sheboygan. Few, if any, U.S. located witnesses or documents will be relevant. It was an international plot by foreigners mostly outside our borders. Evidence of guilt will be gathered by foreign governments, either by their intelligence agencies or police forces."
Obtaining evidence that would be considered admissible in a U.S. criminal court is frequently impossible. The task is made even more difficult because the sources of such information frequently must remain anonymous, because public disclosure would jeopardize their snitches, undermine other investigations, or cause political problems a major concern in the world of radical Islam.
In the past, Mrs. Toensing said, the United States has even had to forgo terrorist prosecutions for lack of such admissible evidence.
While military tribunals also have rules, they are not the same rules as the civilian courts. So a military court could consider such information without revealing, and jeopardizing, its source.
The U.S. Supreme Court already has ruled on the constitutionality of military tribunals. The issue here isn't whether they are lawful, but whether they should be used to prosecute the agents of death and destruction who kill people or conspire to kill people for the simple reason that they're Americans.
And by the way, Attorney General John Ashcroft is doing a superb job. To my conservative and liberal friends alike, I say, get off his back. We're in a war. Civil liberties are not the issue. Survival is.

James L. Martin served two years of duty (1953-58) in the U.S. Marine Corps and is now president of the 60 Plus Association.


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