by John M. Curtis
(310) 204-8700

Copyright December 2, 2001
All Rights Reserved.

ational security trumps civil liberties—and military tribunals, not Kangaroo courts, are legitimate ways to mete out battlefield justice. Promising to "bring terrorists to justice or justice to terrorists," President George W. Bush announced that suspected terrorists would be tried in the privacy of military tribunals not the open spectacle of U.S. courts. With the war in Afghanistan going more quickly than expected, the Justice Department plans to deliver justice through overseas military tribunals, avoiding a Nurenberg-like media frenzy, trying war criminals suspected of perpetrating the shameless Sept. 11 attacks. "We're an open society, but we're at war," said Bush, reminding critics that the commander-in-chief has the constitutional duty to protect national security. To the White House, the question of how to deal with suspected terrorists is cut-and-dried: Terrorists must be prosecuted without the endless loopholes in the criminal courts. "Foreign terrorists and agents must never again be allowed to use our freedoms against us," said Atty. Gen. John Ashcroft, denying foreign war criminals the same civil liberties given to U.S. citizens and legal residents.

      Ashcroft's plan to offer immigration incentives to aliens willing to step up with information met with skepticism. His Responsible Cooperators Program invites the Arab/Muslim community to come forward with information leading to the arrest and conviction of subversives connected with Osama bin Laden. While there's nothing wrong with that, promising S visas in exchange for information opens up a can of worms. Posting rewards is one thing, but bending immigration laws to aid FBI or DOJ investigations crosses a dangerous line. When the White House floated "blanket amnesty" for 3 million undocumented Mexicans, protests mounted on both sides of the aisle. Offering S visas to any undocumented group sends the wrong message to legal immigrants who play by the rules. "The attorney general's statement is misleading immigrants into thinking they will not be arrested when in fact [an] INS memo states that visa violators will be arrested and jailed," said Lucas Guttenberg, director of the ACLU's Immigration Rights Project, cautioning against taking Ashcroft's offer.

      Though the ACLU cried foul, national security surely trumps civil liberties, including the right to a jury of your peers. Military officials certainly aren't peers of suspected terrorists, nor do they show the same kind of sympathies as civilian juries. Answering critics, "Non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life," said president Bush, rejecting the idea that military tribunals rob suspects of due process. While the U.S. hasn't officially declared war, Bush's right to apply different tests when the country's under siege. Hunting down suspected terrorists has been an unwieldy task for the law enforcement community. Detaining more than 1,100 people since 9/11, the DOJ and FBI have been in overdrive, scouring the country of dangerous subversives. With only 350 Al Qaeda operatives in custody worldwide, the risk of more terrorism remains real. But with the Northern Alliance capturing Taliban and Al Qaeda troops, military tribunals should see action sometime soon.

      Military tribunals raise unsightly images of Soviet-style Kangaroo courts—or ghastly pictures of Islamic justice perpetrated in Kabul Stadium by the Taliban, amputating limbs and mafia-style executions. Despite these gruesome images, U.S. military tribunals closely parallel civilian courts, with few exceptions like jury selection and rules of evidence. Unlike civilian courts, the "exclusionary rule" doesn't apply where key evidence can be easily thrown out. Fear of summary executions and human rights abuses are largely unfounded. Justifying the use of tribunals, "And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so," said Bush, determined to offer swift justice to suspected terrorists. While Miranda rights don't exist in Military proceedings, there are other safeguards under the Uniform Code of Military Justice. Foreign terrorists tried under U.S. military law have it far better than the blind justice of Islamic courts.

      Concerns about unlawful detentions and secret trials shouldn't deter the military from moving quickly with military tribunals. Open court not only compromises sensitive intelligence, it invites terrorists attacks on prospective jurists and jurors. Military officials fully expect that tribunals will be conducted with the same fairness accorded to enlisted personnel. "The main purpose is for trying the people we catch in battlefield operations, people who are war belligerents and can be tried as war criminals. We're not talking about people picked up for visa violations," said an unnamed official involved in preparations for military tribunals. Ordering military tribunals doesn't rewrite constitutional law, it reinforces how the rules change in wartime. Since 9/11, many changes have taken place. Suspected terrorists aren't the only ones whose civil liberties have been compromised. Beefed up airport security has inconvenienced all travelers—not just those plotting subversive activities.

      Military tribunals offer the best possible solution to meting out battlefield justice. Exporting war criminals back to the states for trial is both impractical and politically divisive. While there's no shortage of fame-grubbing defense attorneys, few juries could show satisfactory impartiality. Non-citizen war criminals aren't entitled to the same due process given to U.S. citizens or legal residents. While the FBI and DOJ have detained, no doubt, innocent suspects, they're still doing their job of protecting U.S. citizens from further terrorism. Whether military tribunals protect courtrooms from more violence is anyone's guess. But, during these extraordinary times, President Bush has every right to order war criminals tried in military tribunals. Human rights groups and the ACLU are out of line suggesting that military tribunals trash the rights of non-citizen combatants. Regardless of immigration status or ethnic background, domestic suspects, fitting the profile of suspected terrorists, must be detained as long as it takes to protect national security. While no one likes to get tough, anything less would be shameful.

About the Author

John M. Curtis is editor of OnlineColumnist.com and columnist for the Los Angeles Daily Journal. He's director of a Los Angeles think tank specializing in political consulting and strategic public relations. He's the author of Dodging The Bullet and Operation Charisma.

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