By now, everyone except Oprah and Alan Dershowitz agrees that terrorists are not prisoners of war. Prisoners of war are soldiers, under obligation to escape and to attack the enemy whenever they can. Under the Geneva Convention, soldiers are immune for acts that would otherwise be criminal. Killing the enemy isn’t murder; it’s an act of war. A POW is entitled to try to escape and, if he uses deadly force to effect the escape, cannot be guilty of murder if the person killed is an enemy combatant. Terrorists kill civilians intentionally, don’t fight in uniform, and thus are not entitled to those immunities.
Last November, President Bush issued a “Military Order” establishing military commissions to conduct criminal trials of the terrorists responsible for Nine-Eleven and other murderous acts against American citizens. The anguish of the civil libertarians promptly poured over the media, and it seemed that the Washington Post was going to dehydrate, given the quantity of tears shed over the civil rights of the al-Qaeda and the Taliban. But then we managed to get hold of Zaccarias Moussaoui, the so-called “19th hijacker.”
The President’s order said that military commissions would only be used to try those who were not American citizens, including members of al-Qaeda. It also applied to those involved in Nine-Eleven or in other terrorist acts against Americans, or who harbored such terrorists. Moussaoui should be the poster boy for military tribunals. He is not an American citizen, but he is charged with being deeply involved in the Nine-Eleven plot. His personal computer apparently held most of the plan for the hijackings. The FBI had him under surveillance before the hijackings occurred. Then why is Moussaoui being tried in the civilian court in Alexandria, Virginia?
The short answer is that the gaggle of lawyers who were responsible for turning the President’s order into action just weren’t ready. They took the unbelievable period of four months to turn out the regulations on how the commissions are going to run. The Moussaoui trial seems to be proceeding well. So before the military commissions can ever get to try anyone, we’ll need to revisit why they’re even necessary.
The Moussaoui trial is the exception, to deal with an exceptional circumstance. Because he was captured by American law enforcement, the courts say that he had to be placed into the civilian court system. His case alone does not place a significant burden on the criminal justice system, and there have been no reports of threats against the prosecutors or the judge. Jury selection is some time off.
But the Hannibal Lecters at Camp X-Ray should never be brought to the United States. Remember how General Myers characterized these guys? He said they were so fanatic that they would chew through the hydraulic lines of an aircraft, killing themselves in order to kill the American crew. Our civilian court system is not equipped to handle people like this in any significant number.
We still need the military commissions to try these people, in a remote place, without risking the lives of the judges and the jurors. These commissions can do the job, because only they, and the military system they operate within, are equipped to do it. And the regulations that finally came out last week answer a lot of questions about how the commissions will proceed. It shows that they will be fair.
The commissions are made up of military officers, and must have at least three members, and not more than seven. One of the members, a qualified military judge advocate, will be the presiding officer. The accused cannot be compelled to testify against himself, and is entitled to cross-examine government witnesses and present evidence of his own. The regs even parallel the Classified Information Procedures Act, which controls the way classified information can be handled in civilian courts. The government can use information in closed session, or give summaries of it with the presiding officer’s permission. Under the new regs, the proceedings can be closed to protect the witnesses or the court members, and the commission can also allow concealment of the identity of witnesses.
There are important differences from normal military trials. The civilian lawyer has to have a security clearance. If he doesn’t, he cannot be shown classified information, and can even be kicked out of the courtroom when the classified stuff is being used. This will make for some interesting clashes between the defendant’s military lawyer and the Johnnie Cochrans who are bound to parade themselves into court.
The new regs don’t answer the most important question: Who will be tried by the commissions? Forget the grunts. Those who fought for the Taliban but weren’t involved in anything more should be held prisoner until the war is over, regardless of how long that takes. The others are a different story.
The high-ranking Taliban or al-Qaeda must be brought to justice. Maybe they were involved in Nine-Eleven. Maybe they were among the murderers of Johnny “Mike” Spann at Mazar-e-Sharif. Those who were involved in Nine-Eleven, or any other act that resulted in the deaths of Americans, should face the commissions and the death penalty. Yes, that includes the revolt at Mazar-e-Sharif, the skirmish near Gardez in which Navy SEAL Neil Roberts died (more, someday, about what is now known as the action on Roberts Ridge) and all the others. The Taliban and al-Qaeda are not soldiers. What they did violated the rules of war. They should be tried for these crimes.
Next, there are a great many who are identifiable terrorists and many, I’m sure, can’t be linked to Nine-Eleven. Those who are terrorists, and who, for example, committed the 1998 embassy bombings, should be tried before a military commissions — in the rare event that we catch any of these people. If convicted, they should suffer whatever punishment fits their deeds.
Finally, there are those who harbor, feed, and pay terrorists. These are individuals, groups, and even governments. Individuals can be tried before the military commissions. The others will simply have to be destroyed.
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