No Excuse for Second-Class Justice

by Joseph I. Lieberman

(This column by U.S. Senator Joseph I. Lieberman of Connecticut first appeared in The Washington Post on January 02, 2002 and is in the public domain. No republication restrictions.)

President Bush's Nov. 13 order authorizing military tribunals to detain and try foreign nationals accused of committing terrorist acts against the United States unleashed a firestorm of criticism, most of it suggesting that military trials grossly violate America's commitment to civil rights and civil liberties. That's truly unfortunate, because military tribunals have a long-settled and appropriate role to play in wartime, and the focus on whether to have military tribunals has obscured the far more important questions of what procedures those tribunals should follow and who should be subjected to them.

Although it may sound like an oxymoron to many, there is a body of international norms commonly referred to as the "law of war." It recognizes that armed conflict exists and inevitably involves death and destruction, but it also insists that combatants adhere to certain rules. Among the most sacred of those rules is that warriors not target civilian populations and that they not conceal their weapons or try to pass as noncombatants as they prepare for attack.

The attacks of Sept. 11 were acts of war. Because they were carried out against defenseless civilians by terrorists posing as noncombatants using concealed weapons, the perpetrators were guilty of heinous war crimes, not simple domestic crimes.

Throughout our history, both alone and in conjunction with other nations, we have used military tribunals to prosecute those accused of such crimes, and the Supreme Court has more than once upheld the executive branch's right to do so. The choice of military tribunals reflects a recognition that military venues are the appropriate place to understand, enforce and uphold our -- and the international community's -- decision to adopt rules to which all combatants must adhere.

Practical reasons also argue for accepting military tribunals. As others have pointed out, we can't expect those gathering evidence in a war zone to comply with all elements of the Supreme Court's Miranda decision or the Fourth Amendment's search-and-seizure rules. Nor is it apparent why triers of fact should be barred from hearing testimony about certain events simply because the testimony may not comply with the strict version of the hearsay rule found in the federal rules of evidence. And, given the threat al Qaeda poses to our civilian population, it is unclear why we would subject our judicial personnel and citizen jurors to the potentially lifelong consequences of involvement in a war crime trial when there is an accepted and legitimate alternative available.

Military tribunals must, of course, apply fair rules, consider only evidence that is truly trustworthy and accord defendants due process. But strict adherence to a process and a set of rules created for the prosecution of a completely different type of crime investigated under a completely different set of circumstances is neither necessary nor rational.

While the decision to authorize military tribunals is plainly appropriate, the consternation over the manner in which the administration has thus far addressed the issue is understandable. Military tribunals are a legitimate and accepted forum in which to accord alleged war criminals fair and impartial trials; they are not nor should they become an avenue in which to mete out second-class justice to any foreign national the government desires to detain. Yet no one can be blamed for reading the president's Nov. 13 order as allowing for just that.

The order did not clearly limit its application to those accused of war crimes, leaving open the possibility that the administration wrongly sought to extend military jurisdiction beyond its settled limits. The order left unstated whether a presumption of innocence would apply and what rights defendants would have to know the charges and evidence against them and to see their families or attorneys. Elemental aspects of due process such as the requirement that suspects not be held indefinitely without trial went unmentioned, as did any statement about whether proceedings would be open to the public.

Recent press reports indicate that the Defense Department is responding to these concerns and planning to issue regulations providing that fair procedures will govern in its military tribunals. Although it is impossible to reach a firm conclusion prior to the release of those regulations, the reports are encouraging.

But the administration's misguided decision to charge Zacarias Moussaoui in federal district court rather than bring him before a military tribunal only makes it harder to convince the American people and the world of the fairness of our military tribunals. According to the government's indictment, Moussaoui willfully and knowingly conspired to kill and maim people in the United States, "resulting in the death of thousands of persons on September 11, 2001." In other words, the government believes Moussaoui took part in the preeminent war crime of the al Qaeda-Taliban engagement thus far, yet the government chose not to charge him in a tribunal established for precisely such actions.

When members of the Senate Armed Services Committee asked Defense Department officials for an explanation, those officials acknowledged that they hadn't even been consulted in the charging decision. According to a Washington Times article, Vice President Dick Cheney explained the decision as "primarily based on an assessment of the case against Moussaoui, and that it can be handled through the normal criminal justice system without compromising sources or methods of intelligence.... And there's a good, strong case against him."

With all due respect to the administration, these explanations of the Moussaoui charging decision cannot help giving ammunition to those who see the military forum as an arbitrary weapon rather than a fair tribunal. The decision to pursue a military trial should be based on the type of crime alleged -- whether it is a war crime -- and not the quality of the evidence against the accused. Regardless of whether the crime is a war crime, we should pursue individuals only when we have a "good, strong case" against them.

Military tribunals should not be used as leverage over those accused of war crimes or as a means to signal to those from whom we seek information or assistance that if they cross us they may disappear and receive second-class justice. Nor should such tribunals become a sign to either our own people or the world that the United States has abandoned its commitment to the rule of law and is willing to resort to more lax forums when it feels it can't make its case.

Properly constituted, military tribunals can provide now what they provided in the past: a fair, impartial means of trying and, if appropriate, punishing those who violate the laws of war.

(The writer is a Democratic Senator from Connecticut.)