Against Military Tribunals

Last January, Zacarias Moussaoui, a French national of Moroccan descent, pleaded “not guilty” in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for an American civilian court to try someone charged with conspiring to murder American citizens and destroy American property on American soil. More than two centuries ago, Article I, Section 8, Clause 10 of the U.S. Constitution granted Congress the power to “define and punish Piracies . . . and Offenses against the Law of Nations,” a power Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international crimes, including aircraft sabotage and theft of nuclear materials. In recent decades, U.S. courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts more than twenty-five members or affiliates of al-Qaeda, the very terrorist group now charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and two U.S. embassies.

This history made even more surprising President George W. Bush’s military order of November 13, 2001, which, without congressional authorization or consultation, suddenly declared that “[t]o protect the United States and its citizens, . . . it is necessary for [noncitizen suspects designated by the president under the order]. . . to be tried for violations of the laws of war and other applicable laws by military tribunals.” (Emphasis added.) Bush’s order has attracted harsh criticism abroad and milder challenge at home. Responding to this furor, regulations finally issued by the Defense Department in March now purport to guarantee some procedural protections to defendants brought before such military commissions, but no right to judicial review before civilian judges.

Amid this controversy, the practical question remains: given the exigencies created by September 11, what’s wrong with the U.S. government’s trying suspected terrorists before military commissions? Bush’s order is wrong for two simple reasons: first, it undermines the United States’ perceived commitment to the rule of law and national judicial institutions at precisely the moment that commitment is most needed here at home. Second, by failing to deliver justice that the world at large will find credible, the military order undermines our ability to pursue our core post-September 11 aim: leading an international campaign against terrorism under a rule-of-law banner.

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