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.
