August 2003
Prosecuting Terrorists
In waging war against al Qaeda, the United States has been confronted with an enemy the likes of which it has never faced before. Efforts to defeat this terrorist network include the use of law enforcement resources and the justice system to capture, detain, and ultimately convict terrorists in the United States and abroad. Can U.S. courts handle the demands of prosecuting terrorists while preserving basic civil liberties? Is it preferable to pursue justice through the use of military courts that can better balance security with liberty? On August 8, 2003, a panel of journalists, legal scholars, and government officials gathered at AE to discuss these and other issues arising from the war on terror.
Melanie Kirkpatrick
Wall Street Journal
The president has issued an executive order establishing military commissions, which applies only to non-citizens, and he recently designated the first six people eligible for such a trial.
A second group of terrorist suspects are being prosecuted in the regular criminal justice system. Among them, John Walker Lindh, the California Talib, plea bargained last year. The Lackawanna six-Yemeni Americans from the Buffalo area-pleaded guilty to terror charges, and Mike Hawash, a member of the terror cell known as the Portland Seven, also pleaded guilty to helping the Taliban. The most famous defendant in this category is Zacarias Moussaoui, the so-called twentieth hijacker. His case is now proceeding through the courts. A federal judge has ruled that he should be permitted to question a high-level al-Qaeda official in U.S. custody, but the government has refused this and additional requests for similar interviews.
The third category of accused terrorists consists of those who have been designated unlawful enemy combatants and are being held without charges in the navy brig in South Carolina. Those include a man from Qatar who originally had been charged in federal court in Illinois and whose trial was supposed to start this summer, but the prosecution was stopped. Instead, he was deemed an enemy combatant and sent to South Carolina.
Two Americans who fall into this category-Yaser Esam Hamdi, who was born in Louisiana but captured on a battlefield in Afghanistan; and Jose Padilla, who was accused of plotting to set off a dirty bomb in the United States. Hamdi's case is working its way through the Fourth Circuit Court of Appeals, which ruled that the president has the authority to detain Hamdi indefinitely as an enemy combatant. Padilla's case is in the Second Circuit, which ruled that the administration has the right to designate and detail enemy combatants, including American citizens, and is scheduled to consider this case in the fall.
This isn't the first time that our country has had this important debate on the proper balance between national security and civil liberties. George Washington, Abraham Lincoln, Franklin D. Roosevelt, and other presidents have also had to grapple with these issues.
Michael Chertoff
U.S. Court of Appeals for the Third Circuit
There are three types of features at work. The first of these is the traditional Article III court used to prosecute criminal offenses. The second are the military tribunals, which have a long national and international history. The third concept is the status of the enemy combatant, which is just an outgrowth of the customary ability of any government or country at war to apprehend enemy soldiers and incapacitate them.
The question has been whether there ought to be a preference for trying terrorism cases in Article III civil courts or in military tribunals. By looking at this as a policy matter, it seems that there is a false choice when you say "civil or military courts." You need both, because the president needs to have the power, based on the facts and circumstances of individual cases, to determine what makes most sense. Traditionally, when people in law enforcement have cases that straddle federal and state law, there is a choice to be made whether the case is prosecuted federally or in the state, and that choice is usually made based upon a variety of discretionary circumstances.
It is also a mistake to look at one system as fundamentally different in terms of fairness. Some people look at the military tribunal option as a cheap way to convict people, but they are making a fundamental error. The protocols that were drafted and promulgated by the Defense Department create a system for fair trials that is very similar to what most people would view as fundamental due process. There are some differences, most notably the absence of a jury, but the basic principles of confrontation still apply as well as the ability to get fairness or the likelihood of conviction.
There are some advantages to each system, depending on the facts and circumstances. For example, will someone be eligible for both? Some people prosecuted in federal criminal court for material support probably would not qualify as war criminals under a military tribunal. Likewise, there are things one could do to violate the laws of war that would not necessarily be federal criminal offenses. The military tribunal form has the advantage of necessarily not being in the United States; there may be security and convenience reasons that make it preferable to have a case prosecuted outside the continental United States.
There are times that a civil court is more attractive. There can be foreign policy issues that arise when you prosecute people in a military tribunal as opposed to a customary Article III court. When we deal with the issue of extradition, for example, some countries may not extradite terrorists except to have them tried in an Article III court. Sometimes there is a diplomatic reason to try a case in an Article III court rather than in a military court. To constrain the president and force him to do one or the other would deprive him of the flexibility he needs to adjust to the particular circumstances.
William J. Haynes
Department of Defense
We are in a state of armed conflict unlike any this country has ever faced. Our enemies operate through deceit, treachery, and stealth, and they prefer to target civilians and other nonmilitary targets. They train and equip their forces in lawless, ungoverned parts of the world. Some of them have lived in our communities, learned from our universities, even worshipped with us. They have waited to launch their attacks while taking full advantage of the freedoms this country has to offer.
How do we combat this foe? Principally we have to do it through intelligence, and our enemy's method of operation makes the collection and protection of intelligence crucial to winning this war. The disclosure of what our government knows could expose sources and methods of that intelligence, deny us the advantages of this foreknowledge, and even dry up the flow of vital information. Al Qaeda also understands the importance of intelligence and our legal system, which it teaches its members to exploit in a way that forces the disclosure of sensitive intelligence. Al Qaeda may well hope that use of our civil courts might force our government to choose between protecting the nation's security and prosecuting terrorists. Our Article III system is the best in the world, and we cannot let it be abused.
How do we meet these challenges? Because we are in a state of armed conflict, the use of military commissions is an entirely appropriate option for the president to use. Military commissions have long been used to try those who violate the laws and customs of war. Similar commissions were used during and immediately after World War II for trying those alleged to have committed violations of laws of war, and international military tribunals were used to try individuals at Nuremberg and Tokyo.
While the commission procedures protect information, the process must result in a full and fair trial. Individuals who stand accused before the commissions will receive many of the protections in civilian trials. They will be able to contest the evidence presented against them in an adversarial hearing, and they will be apprised of the charges against them. They will be presumed innocent until proven guilty, and they will be provided competent and experienced defense counsel at no expense to themselves. While there may be portions of the hearing that are closed, the defendant will at all times be represented by his counsel. The defense will be provided access to evidence that tends to exculpate the accused and all evidence that the prosecution intends to produce at trial. The defense will also be able to obtain all available documents and witnesses in order to ensure a fair trial.
In addition to being full and fair, the military commissions are transparent. The procedures have been published on the Department of Defense website. The hearings will also be open to the public to the maximum extent practicable.
The commission process is representative of the larger commitment that this administration has to America and its core values, as they are being set up in a deliberate and open process. While these procedures are founded on precedent and tradition, they are by far the most detailed, the most generous, and the most open procedures ever devised for such a commission. The commissions offer the president a good alternative to prosecuting crimes in this war on terror.
Morton Halperin
Open Society Institute
The United States does need to have the option of civilian trials in the criminal courts, or military tribunals, and the ability to hold unlawful or even lawful combatants during the period of the war.
The question is the process by which we determine those rules. This can be done consistent with the Constitution and the procedures that need to be followed under the Constitution and the rule of law. This starts with requiring congressional authorization. The administration should seek congressional authorization both for the military tribunals, which in the past have been authorized by the Congress, and for the procedures to hold enemy combatants, whether lawful or unlawful.
The procedures must provide for judicial review by Article III courts of two critical questions: First, is the procedure constitutional? That is a matter for the courts, and the administration, in a variety of ways, has sought to keep that issue away from the courts both in the case of the military tribunals and in the case of people being held as unlawful combatants. The second question is, does the person being detained fit within the category established either for the military tribunals or for the holding of a person as an unlawful or lawful combatant? The administration has resisted the notion that Article III judges determine if you can hold people in this category.
The Defense Department has done an extraordinary job of providing a due process. There are a number of specific ways in which people think it has failed, but the most important one is what was suggested when we were told that there could be appeal to the appointing authority. That is not the way we conduct trials in the United States. The appeal needs to be to independent, Article III judges.
We should have legislation. The legislation might establish procedures very close to the ones that the Defense Department has now promulgated, with the important exception that any person to be brought before the military tribunal would have a right to go into an Article III court to challenge the statute. The question of whether the trial was fair and whether the person was properly convicted ought to be subject to the right of appeal to an independent judiciary and ultimately to the Supreme Court of the United States.
The same is true of unlawful combatants. We have the right to hold people who are enemy combatants, either as prisoners of war or interned as the equivalent of enemy aliens, but we should do this by statute and entitle those people to judicial review both of the lawfulness of the process and of their category. The courts have insisted on some kind of judicial review; but up until now, the lawyers representing detainees have not been allowed to talk to their clients.
Congress should authorize statutes. We have pressed throughout the world for other countries to use similar procedures, and our leadership in those issues has now been severely undermined.
Does the Constitution really permit the president to decide that one of us is what he considers to be an unlawful enemy combatant and to put that person in a military prison and not allow that person to speak to his lawyer? The Constitution does not give that authority to the president, nor is there any compelling reason why that kind of incarceration cannot be carried out according to constitutional procedures.
John Yoo
AEI
The first question worth asking is whether civilian courts really are capable of handling terrorism trials during the war on terrorism. It is a different situation now than in the past because we are attempting to try members of the enemy while military operations and intelligence gathering continues.
The fundamental conflict that is occurring in the Moussaoui case is precisely that. In a normal criminal trial, the defendant, under the Constitution, has a right to access witnesses who might exonerate him, and he would also have access to prosecution witnesses. The problem in Moussaoui's case is that those witnesses are currently being held abroad and are being interrogated by U.S. military intelligence agencies. Fulfilling Mr. Moussaoui's constitutional rights might require bringing those folks into the United States, where their fellow co-conspirator, a member of Al Qaeda, can question them. That would disrupt not just the interrogation process, but it would potentially allow the methods by which the person was caught, the kind of questions we are asking, what we're looking into to be divulged in a public proceeding. So, there is still an open question whether the civilian courts can adapt to handle this.
That is why we have the military commission process, but military commission rules do not extend to American citizens who cannot be tried in a military commission. Is there actually a breakdown in our civilian justice system that would prevent folks like Padilla and Hamdi from being tried at all-because they're not covered by the commissions and because they might start asking to see all the same witnesses that Mr. Moussaoui is asking to see?
What are the proper roles of Congress and the courts in overseeing the separation of powers? After September 11, 2001, the Congress enacted a resolution that authorized the president to use all necessary means of force against those responsible for the September 11 attacks. During the Civil War, President Lincoln used military commissions in the Civil War not authorized specifically by Congress either. In some ways, President Bush might now be in a superior constitutional position to that of President Lincoln in the Civil War.
The last point is the role of the judiciary-how much scope of judicial review we're going to have. That is the central question in an enemy combatant's case. Exactly how intrusive is that judicial review going to be? For example, in the Moussaoui case, how much evidence does a court need to see in order to determine whether Mr. Padilla or Mr. Hamdi actually is an enemy combatant?
AEI research assistant Andrew Kelly prepared this summary.
