From today's Wall Street Journal Opinion Journal:
>>War Crimes Are Different
Military tribunals are necessary in times of war.
BY DOUGLAS W. KMIEC
Thursday, November 15, 2001 12:01 a.m.
Having successfully overseen the rout of the Taliban from Kabul, President Bush has now directed the creation of special military tribunals. These courts would try foreign nationals the president considers to be part of the terrorist group al Qaeda and others who aid and abet terrorists, as well as those who knowingly harbor such people. Predictably, the American Civil Liberties Union has rushed to decry this logical exercise of war powers as "deeply disturbing," and in contravention of ideas "central to our democracy." In fact, the president's order is well-grounded in constitutional text, statute and past practice, and is more likely to preserve civil liberty than undermine it.
Terrorism is not ordinary crime within an ordered society. It is the indiscriminate killing of innocents and the destruction of property. As such, it is the quintessential crime against humanity; it is not a social or cultural dysfunction capable of rehabilitation or rectification by means of ordinary law enforcement and prosecution.
Past experience with trying terrorist acts within the regular criminal justice system has been unsatisfactory largely because standards of proof and rules of evidence appropriate to peacetime are ill-suited to the effective punishment and deterrence of terrorism. The presumption of innocence, the requirement of proof beyond reasonable doubt, Miranda rights and privileges against self-incrimination all make sense in the delicate context of the balance been a citizen's rights and society's interests in protecting its physical and material security. However, when Congress has authorized a president to respond with all necessary force to events like those of Sept. 11 and "any future act" of international terrorism, the state of war requires the balance to be different.
The standard applied in military tribunals is simple and pragmatic. If those perpetrating war crimes are not disposed of upon the field of battle, military tribunals may be empowered to ascertain with evidence that is "probative to a reasonable man"--that is, more probable than not--that a given person or organization is guilty of what Sir Edward Coke called, centuries ago, a "crime committed by the enemies of mankind."
This will mean that neither the hearsay rule (which has bedeviled prior terrorist trials in federal courts because of the disappearance, or inaccessibility, of direct witnesses), nor ill-fitting exclusionary rules that have no deterrence-based relevance to this setting, would derail the admission of evidence obtained under the interrogation authorized by the president. The president has specifically provided as well that the interrogation be humane, and "without any adverse distinction based on race, color, religion, gender, birth, wealth, or similar criteria." ACLU
charges of "racial and ethnic profiling" thus find no support within the scope of the directive. As in past cases, the actual composition and procedures of these tribunals--which can sit either in the U.S. or elsewhere--are left to be determined by the secretary of defense and military commanders subordinate to the president, subject, however, to the provision of a "full and fair trial," with conviction and sentencing needing two-thirds of the tribunal.
While the rules and regulations are yet to come, we can get some inkling of their content by examining those promulgated by military commanders, such as Dwight Eisenhower in the European theater of World War II and Douglas MacArthur in the Pacific. And while there are subtle differences, both commanders specified greater evidentiary latitude, including allowing secondary evidence where witnesses are unavailable, and copies of documents and confessions to be admitted without undue delay.
Is all this just an elaborate denial of due process and an example of sham proceedings? Hardly. The use of military tribunals was commonplace in World War II and those appearing before them were both exonerated and executed. The same is likely now. The "fair trial" mandated by the Bush order should become reality simply because the disciplined, legally trained military personnel sitting in judgment are likely to be evenhanded. In contrast, consider how difficult it would be to find a jury capable of being dispassionate about the mass murder at the World
Trade Center and the Pentagon.
Most important, military tribunals have the virtue of allowing evidence to be considered without forcing the disclosure of classified information in open court or the identification of intelligence personnel and sources. And here, the point of military tribunals, and their appropriateness, becomes plain. These bodies are not primarily for purposes of punishment. They are extensions of the military campaign and of the efforts of the president to "protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks."
Perhaps that is why the creation of these tribunals in wartime--for the trial of war crimes--is so well fixed and unassailable in constitutional precedent. The Supreme Court does not sit in ultimate review of the tribunal's work, beyond assuring itself that the commission was properly impaneled. It is also why the jurisdiction of these bodies depends upon Congress's war powers and on the individual who, with however much reluctance he must surely have, acts as our commander-in-chief.
Mr. Kmiec, dean of the Catholic University of America, headed the office of legal counsel in the Reagan administration.<<
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