Jewish World Review Nov. 28, 2001 / 13 Kislev, 5762
In these, evidentiary and procedural rules would be less favorable to defendants than in the criminal justice system, and there would be no appeal to the judicial system for trials held abroad for alien terrorists. Hence some professional hysterics, such as New York Times editorialists, have reacted with the theatricality of antebellum southern belles suffering the vapors over a breach of etiquette.
However, Harvard's Laurence Tribe, a leading liberal professor of constitutional law, tells the New York Times, "Civil liberties is not only about protecting us from our government. It is also about protecting our lives from terrorism." And Richard A. Posner, a judge of the 7th U.S. Circuit Court of Appeals and lecturer at the University of Chicago Law School, in an essay written many weeks ago for the current issue of the Atlantic Monthly, refutes those who say civil liberties are so sacrosanct that the war against terrorism must "accommodate itself to them."
Posner says that in balancing liberty and security considerations, we should remember that the constitutional language conferring rights such as "due process" is vague. Such language has acquired its content incrementally, over many years, from judicial interpretations, mostly made in the context of the normal problems of criminal law -- maintaining domestic tranquility by deterring, punishing and correcting disorderly individuals.
But such interpretations cannot be applied, unamended, to the problem of protecting society against a large foreign-based conspiracy to commit mass murder repeatedly. The aim here is not deterrence or rehabilitation but security and victory.
On Oct. 3, The Washington Post reported that in the early spring of 1996 the government of Sudan, where Osama bin Laden then was residing, offered to arrest him and place him in Saudi custody for extradition to the United States. But the Saudis could not be persuaded to take him and the Clinton administration decided it was "lacking a case to indict him in U.S. courts." Clinton's national security adviser, Sandy Berger, told The Post, "The FBI did not believe we had enough evidence to indict bin Laden."
Which may have been true, given that the rules of the criminal justice system are designed for dealing with burglars, embezzlers, violent individuals and the like. And under those rules, we might not yet have enough evidence needed to convict him if he is, as he has been characterized, "the Ford Foundation of terrorism," making grants to terrorist cells but disconnected from operational matters.
Hence military tribunals. They need not have juries. They can be secret. They can admit evidence gathered without Fourth Amendment constraints and without compromising the intelligence means and methods by which the evidence was obtained. They can convict without unanimous votes.
Such tribunals are facets of military operations, not the judicial system. Far from "shredding our Constitution" -- the overheated phrase of Sen. Patrick Leahy -- such tribunals have been affirmed by a unanimous Supreme Court as an exercise of the president's war powers with two centuries of precedents. And such tribunals are implemented under provisions of the Uniform Code of Military Justice enacted by Congress.
It was only in order to preserve the option that Bush insisted that the tribunals be able to try alien terrorists held in the United States. The real purpose of the tribunals is to cope with hundreds, perhaps thousands, of unlawful belligerents or war criminals captured in Afghanistan and elsewhere. Such belligerents operate, or support those who operate, out of uniform and target unarmed civilians.
Now, there is an argument -- Sir Michael Howard, British military historian, makes it -- for not according terrorists the status of belligerents. Howard says it makes them soldiers rather than criminals, giving them derivative dignity and complicating the task of isolating them from the rest of the community, a prerequisite for an indispensable ingredient of success -- intelligence.
But while Howard says terrorists -- he has, for example, Ireland in mind -- want to provoke overt armed force against them, bin Laden cannot be pleased by what he has brought down upon himself. And what choice did America have? The terrorists have achieved mass destruction before they have acquired weapons of mass destruction, and regimes, or the minds of regimes, must be changed before these terrorists can be beaten.
Thus America has a military problem -- or a problem with a large military dimension. Military tribunals are a traditional, lawful part of the