Transcript: Are Military Tribunals Constitutional?
Sunday, November 18, 2001
foxnews.com
TONY SNOW, HOST, FOX NEWS SUNDAY: President Bush issued an order this week giving the secretary of defense authority to try in military commissions suspected terrorists or people who knowingly aid and abet them.
Military commissions differ from civilian courts in several significant ways: A commission of five to seven members tries all matters of facts and law and reaches a verdict by a two-thirds vote, not a unanimous vote as in civilian criminal proceedings. The trials may be held secretly, thus preventing the public disclosure of national security secrets.
The evidence need not meet standards set forth by the Supreme Court for civilian trials. It merely must have, quote, "probative value to the reasonable person." And appeals must fit within narrow categories permitted by the code of military justice. The Supreme Court itself has no power to review verdicts.
The key question, does the order protect our fundamental rights or assail them? For both sides, we're joined by criminal defense attorney and Harvard Law professor Alan Dershowitz and one-time solicitor general, former independent counsel, former judge Kenneth Starr.
Professor Dershowitz, does the president's order, as far as you're concerned, pass constitutional muster?
ALAN DERSHOWITZ, HARVARD UNIVERSITY LAW SCHOOL: Well, I think in part it does. As applied to Al Qaeda and to bin Laden and to foreign combatants who are captured in military battlefields, it's certainly constitutional.
But it applies also to long-term American residents who are not citizens and who the president accuses of complicity with terrorism. And then the president's subordinates in the chain of command, five to seven military officials, have to make a decision as to whether the president was right or not.
And they can do it on the basis of hearsay and gossip in secret and closed trials, and can sentence these Americans, with families in America who have been long-term people in this country, to death without an appeal and without the basic fundamentals of due process.
So I think it's unconstitutional as applied to long-term residents, and constitutional as applied to foreign combatants.
SNOW: Judge Starr?
KENNETH STARR, FORMER INDEPENDENT COUNSEL: Well, Alan has basically conceded that it's OK, that it is constitutional, and indeed it is.
And I think the context of this is that, as Senator Lott very well put it, this is an act of war that has been committed against us. And it is historic, it is traditional that military commissions can, in fact, and have been established to handle these kinds of situations, including for persons apprehended in the United States.
I don't think — we don't know how this is going to be employed. It's a tool. But it's a reasonable tool that is employed when the president sees fit to employ it.
SNOW: But isn't there some ambiguity about whether this kind of a tool is available only in a time of declared war, which we do not now have?
STARR: Well, declared war is irrelevant at this stage. And the reason is that we were attacked. And under Article 51 of the U.N. Charter, under the NATO Treaty and the like, it is already understood that we are at war, in the sense of we're engaged in acts of self- defense.
DERSHOWITZ: But I haven't conceded what the former solicitor general says. I conceded — I want to ask him a direct question.
Do you think this is both constitutional and desirable, as applied to an American with a family here in America who's lived here for five or 10 years, who has a green card, who regards himself as an American in every way but having citizenship, who is accused of complicity, who denies it, who is living his ordinary life, and to be seized and taken for detention long-term, put in front of a military tribunal without any of the basic rights, do you think that will, a) portray America in the best possible light to our allies around the world, those to whom — about whom we complain when they do the same thing to their long-term residents?
Let me ask you that question. Do you think that's constitutional and desirable as applied to that group of Americans?
STARR: Well, Alan, you are now assuming the worst possible hypothetical, and there may very well be constitutional questions raised when we're talking about...
DERSHOWITZ: So you're conceding that now.
STARR: I'm saying constitutional questions raise.
What I think this order is designed to achieve is the ability to try war crimes quickly in the theater of action or in the United States, as the case may be, against — because the order identifies, in the earliest phases of the order, Al Qaeda. That's what is — it's not any other terrorist organization. Those who aid and abet them, and those who harbor them.
So let's don't worry about the hypothetical case that could come four or five years from now, when the president would have to pay, Alan, a terrific political price to try to do that kind of application. Let's look at the order on its terms, what it's designed to do. It is designed to respond to a state of war.
SNOW: Professor Dershowitz, let me get to the core issue. I think one of the things you're saying — and correct me if I'm wrong — is that a military tribunal, because it does not have the kind of procedural safeguards that civilian courts have, that it may behave more rashly, is that your fear? And if so, what evidence is there of that?
DERSHOWITZ: Oh, it's not more rashly. It's that, remember, they're military people who are in the chain of command, and the commander in chief has told them, essentially, to be patriotic. And he's told them that he believes these people are in fact guilty. It's very hard — after all, these people are trained to obey military orders, as they should be, from the commander in chief.
This whole process endangers the concept of civilian control of the military. After all, if the president says they're guilty, and they fly in his face and say, he's innocent, they're not following his orders. If they follow him routinely, then they're not providing justice.
That's why experts have long said that military justice is to justice as military music is to music. It's efficient, it's effective, but it's not the kind of justice that we tell people abroad that we expect them to administer.
And if we expect the world to believe that Al Qaeda and Osama bin Laden and the others are guilty, which I certainly believe they are — but, if we expect to convince the doubters, we can't do it with secret trials by military people. We have to do it by showing off the American system of justice.
We ought to have more faith in American justice, and I'm concerned that President Bush's order shows lack of faith in the American system of justice.
SNOW: Judge Starr?
STARR: Not at all. It's a — I think, again, with all due respect to Alan, he's coming up with a parade of horribles.
There is a limited but important role, historically, for military commissions. They are used when we are in a situation of war, which is what are now. And I think that's very important, and I've heard no one suggest that we're not in a state of war.
I've heard at most a suggestion, do we need a declaration of war? The answer to that is, absolutely not. And I don't know any respectable international law scholar who says there needs to be a declaration of war.
We do have a joint resolution from the Congress that makes it absolutely clear the president should use all appropriate means to carry out the function. With respect to secrecy, efficiency, and that sort of thing, at times, those are very important elements.
STARR: That great friend of liberty, Franklin Delano Roosevelt, felt very strongly about it, that when those German individuals were captured in the United States, which is the most recent time the Supreme Court of the United States has...
SNOW: 1942.
STARR: ... spoken so authoritatively on this, we should have a military commission. Those individuals, one of whom was a U.S. citizen, said, "Oh, we really weren't intending to commit acts of sabotage and the like." Franklin Delano Roosevelt said, this is a time of war. We need a military tribunal for purposes of efficiency and secrecy and security.
DERSHOWITZ: Those were Nazi soldiers. They were captured in the United States after coming here after a couple of days. They were not long-term residents.
You know, I think we don't disagree so much, Ken. I think we agree that it's perfectly constitutional to try military combatants abroad. Whether it's desirable or not, depends on whether it's secret and what the information is.
But I think we do agree, though you're finding it hard to concede it, that if we were to arrest and detain a long-term American resident and put him in a military trial rather than a civil trial — the way we did McVeigh, the way we've done others from Al Qaeda, who blew up the World Trade Center and blew up the embassies — that would raise constitutional questions.
And why not resolve these constitutional questions in favor of believing in our long-term system that has managed to do justice under great constraints? I have much more faith in our system of civil justice, I think, than you do.
STARR: Again, I think Alan is hypothesizing a case. I have great faith in our system.
And the issue is, should the president have this tool available under those circumstances when the president feels, given information that's available to him, that it's necessary to use it? It's a tool to be available. And I think it's important and consistent with our history going back to George Washington.
SNOW: Final question for both of you quickly. Would, if given the opportunity, would you defend Osama bin Laden? First you, Judge Starr and then Professor Dershowitz.
STARR: It's in the traditions of the profession that you would, but I think I would pass on that one frankly.
SNOW: Professor Dershowitz?
DERSHOWITZ: Well, I would hope not to get the call.
(LAUGHTER)
But the person who got the call would be the greatest patriot in legal history, far more than the prosecutor, because he would be doing it at great danger to his career, to his safety and his life.
If we're going to claim that we have the best legal system in the world, we cannot condemn lawyers who play a role in that system, defending the most hated people in the world.
SNOW: All right. Alan Dershowitz, Kenneth Starr, thank you both.
DERSHOWITZ: Thank you. |
