The
Consequentialist
Argument for Military Tribunals for Terror Suspects
One
of the by-products of “The “War on Terror” is the question of
how to legally deal with terror suspects. From one perspective, the
history of law and due process in America leads to the call for
civilian trials. From another perceptive, the adversarial
nature of the defense process would be detrimental to achieving the
goals of justice and that military tribunals should be the vehicle of
legality for these cases. This issue of which jurisdiction should
deal with the suspects is clouded at every level at every level due
to the ambivalent nature of standing laws and precedent. Further,
there is some difficulty in differentiating some acts of crime and
some acts of terror. A review of the entire issue based on
utilitarian judgment,
but considering deontological views should lead to the conclusion
that terrorist suspects should be tried by military tribunals.
A discussion of which authority should handle these cases should begin with an examination of the legal statuses of terror suspects. The first determination to be made is combatant status, as this has a bearing on how these cases can be adjudicated. This issue has been muddied by people who can't read, but the Geneva Convention is absolutely clear on what defines a legal combatant; “Many leftist academics and activists insist that the Geneva Conventions must be universally applied. Yet, that argument is undercut by those treaties' texts. The Third Geneva Convention explicitly states that parties need not apply it to all conflicts, especially when the foes are not parties, and when enemies do not abide by its terms” (Lapkin, 2004 para 13) Since the one of the main purposes of the Convention is to protect civilian life, it is not surprising that the Convention does not extend protection to illegal combatants, also known as franc tireurs. The primary reason to disqualify terrorists from POW status and it's attendant protections is the qualification “that of conducting their operations in accordance with the laws and customs of war. “ (International Red Cross, 1949, Article 4 (A)(2)(d) ). The determination of status applies to suspects whether they are citizens or not; “In its 2004 Rasul v. Bush decision, the U.S. Supreme Court upheld the right of the U.S. government to detain enemy combatants, even if they are American citizens. The court, however, mandated that non-American detainees could challenge their incarceration in U.S. Courts. “ (Lapkin, 2004, para 7.)
The next legal dilemma is based on the fact that there is no legal definition of what comprises terrorism. “In contrast to other countries, the United States has no legal definition of terrorism. There is no organized body of legislation one might call the law of terrorism, and there is no inherent crime of terrorism (terrorists are charged with other offenses). “ (O'Connor, 2006, para. 14) In addition, within the US government, the State Department, FBI, and Department of Defense all have different formal definitions of terrorism. This dilemma is not limited to the US, either; “A vexed question raised by proponents of both the 'wars' is how international lawyers and lawpersons may make sense of the relationship between 'terror' and human rights. ... This important question has not been fully addressed by either philosophers or international law persons.” (Baxi, 2005, p.16) Even the traditional boundaries of where the war starts and end are legally hazy; “The principle of Ludecke—that, for legal purposes, 'the ‘war’ does not end when the fighting stops,' but rather when 'the political branches have formally acknowledged as much'—remains an 'authoritative precedent.' It is the confluence of Ludecke and the open-ended nature of a conflict against terrorism that gives rise to assertions, and fears, that under the AUMF 'the President may continue to use many of his warpowers . . . indefinitely'.” (Klein, 2010, p. 1878). The issue of “declared war” will come up in relationship to military tribunals.
Following the issue of combatant status is the issue of what rights are afforded to suspected terrorists under American legal principles. This issue contains a variety of questions. First of all, there is a view that any person tried by American law has the protection of Constitutional rights. The 14th Amendment defined what a citizen is, but the Constitution is not specific to which protections extend to citizens versus non-citizens. Such precedents as Yick Wo v. Hopkins (1886), Wong Wing v. U.S. (1896), and Plyler v. Doe (1982) have granted Constitutional protection for non-citizens, and have led to the view that “the Constitution presumptively extends not just to citizens, but to all who are subject to American legal obligations, and certainly to all persons within the United States. “ (Cole, 2003, pp371-372)
One of the first practical questions to arise from these considerations is whether captured terrorists should be treated under military or civilian legal authority. .”a potential issue exists as to the jurisdiction of military commissions, and, in some instances, even as to the jurisdiction of general courts-martial, when armed conflict exists but war has not been declared.”(Everett, 2006, pp.6-7). Indeed, the Supreme Court invalidated President Bush's Military Order establishing military tribunals in the 2004 case, Hamdan v. Rumsfeld. Continuing the tradition of contradictory legal assertions, Congress then “promptly passed the Military Commissions Act of 2006”(Elsea, 2014, p.1). However, there is legal precedent for trying illegal combatants via military tribunal. In Ex parte Quirin, “the Court reasoned that the Articles of War then in effect made clear that, in conferring jurisdiction on general courts-martial to try violations of the law of war, Congress had not intended to limit the long recognized jurisdiction of military commissions.”(Everett, 2006, p.1) Considering the instable legal premises, it may be wise to examine the consequences of both civilian and military trials. Amongst the arguments for civilian trial is the following doozy...”Killing terrorists carries even greater costs as it creates more bitterness among already hostile populations”(Brook, 2010, para.13); or paraphrased simply, killing people that hate you makes them hate you. Although this is specific to Islamic terror, that writer ignores the difference between dal al harb and dar al Islam, and generally ignores the motives behind terror in the first place. Moving past circular attempts at logic we can see an argument that combines deontological argument as well as an appeal to the utilitarian public relations aspects of a civilian trial, the call for due process; however, this appeal fails to note that military trial also requires due process, if in a different form then civilian justice. On the other hand, military tribunals have some advantages. A major advantage is that intelligence sources and methods are protected, whereas in a civilian court they are open to defense inquiry, exposing them to counter-attack. There are other problems that have already occurred, highlighting the certainty of negative consequences. In one case, “Prosecutors in the first major terror trial after Sept. 11 were hindered by superiors from presenting some of their most powerful evidence” (AP, 2005, para 1.) Even worse, terrorists have been aided and abetted by traitors within the American legal system. Lynne Steward is one such traitor. “Stewart was sentenced to two years and four months in prison in 2005 for helping Sheik Omar Abdel-Rahman talk to militants from prison after his 1996 conviction for plotting to blow up New York City icons”(Gendar & Goldsmith, 2009, para. 7)
But how does a prosecutor know when a terror suspect should be considered as a criminal as opposed to a terrorist? What is the difference in crimes? Foster contends that “A primary part of [this] definition that separates terrorists from ordinary criminals is motive. For someone to commit a terrorist act his or her motivation must be a social, political or religious cause”(Foster, 2005, p.2) In addition, another variant is that “One of the main objectives of terrorism is usually to gain publicity for some cause” (O'Connor, 2006, para. 39). Terrorists committing crime may be identified by ties to terrorist groups. Finally, some crime may be committed by terrorists for the purposes of funding terror.
In conclusion, although the dominant trend in legal precedent is to treat all persons in the American legal system as though they have Constitutional protection, there is also precedent for trying violators of the laws of war under the jurisdiction of military tribunals. Because the duty of American security professionals towards terrorist is not consistently and specifically defined, because there is due process under military law even if it is not the same due process civilians are entitled to, and because the consequences favor military tribunals, it should be seen that terror suspects should be tried by military tribunal.
A discussion of which authority should handle these cases should begin with an examination of the legal statuses of terror suspects. The first determination to be made is combatant status, as this has a bearing on how these cases can be adjudicated. This issue has been muddied by people who can't read, but the Geneva Convention is absolutely clear on what defines a legal combatant; “Many leftist academics and activists insist that the Geneva Conventions must be universally applied. Yet, that argument is undercut by those treaties' texts. The Third Geneva Convention explicitly states that parties need not apply it to all conflicts, especially when the foes are not parties, and when enemies do not abide by its terms” (Lapkin, 2004 para 13) Since the one of the main purposes of the Convention is to protect civilian life, it is not surprising that the Convention does not extend protection to illegal combatants, also known as franc tireurs. The primary reason to disqualify terrorists from POW status and it's attendant protections is the qualification “that of conducting their operations in accordance with the laws and customs of war. “ (International Red Cross, 1949, Article 4 (A)(2)(d) ). The determination of status applies to suspects whether they are citizens or not; “In its 2004 Rasul v. Bush decision, the U.S. Supreme Court upheld the right of the U.S. government to detain enemy combatants, even if they are American citizens. The court, however, mandated that non-American detainees could challenge their incarceration in U.S. Courts. “ (Lapkin, 2004, para 7.)
The next legal dilemma is based on the fact that there is no legal definition of what comprises terrorism. “In contrast to other countries, the United States has no legal definition of terrorism. There is no organized body of legislation one might call the law of terrorism, and there is no inherent crime of terrorism (terrorists are charged with other offenses). “ (O'Connor, 2006, para. 14) In addition, within the US government, the State Department, FBI, and Department of Defense all have different formal definitions of terrorism. This dilemma is not limited to the US, either; “A vexed question raised by proponents of both the 'wars' is how international lawyers and lawpersons may make sense of the relationship between 'terror' and human rights. ... This important question has not been fully addressed by either philosophers or international law persons.” (Baxi, 2005, p.16) Even the traditional boundaries of where the war starts and end are legally hazy; “The principle of Ludecke—that, for legal purposes, 'the ‘war’ does not end when the fighting stops,' but rather when 'the political branches have formally acknowledged as much'—remains an 'authoritative precedent.' It is the confluence of Ludecke and the open-ended nature of a conflict against terrorism that gives rise to assertions, and fears, that under the AUMF 'the President may continue to use many of his warpowers . . . indefinitely'.” (Klein, 2010, p. 1878). The issue of “declared war” will come up in relationship to military tribunals.
Following the issue of combatant status is the issue of what rights are afforded to suspected terrorists under American legal principles. This issue contains a variety of questions. First of all, there is a view that any person tried by American law has the protection of Constitutional rights. The 14th Amendment defined what a citizen is, but the Constitution is not specific to which protections extend to citizens versus non-citizens. Such precedents as Yick Wo v. Hopkins (1886), Wong Wing v. U.S. (1896), and Plyler v. Doe (1982) have granted Constitutional protection for non-citizens, and have led to the view that “the Constitution presumptively extends not just to citizens, but to all who are subject to American legal obligations, and certainly to all persons within the United States. “ (Cole, 2003, pp371-372)
One of the first practical questions to arise from these considerations is whether captured terrorists should be treated under military or civilian legal authority. .”a potential issue exists as to the jurisdiction of military commissions, and, in some instances, even as to the jurisdiction of general courts-martial, when armed conflict exists but war has not been declared.”(Everett, 2006, pp.6-7). Indeed, the Supreme Court invalidated President Bush's Military Order establishing military tribunals in the 2004 case, Hamdan v. Rumsfeld. Continuing the tradition of contradictory legal assertions, Congress then “promptly passed the Military Commissions Act of 2006”(Elsea, 2014, p.1). However, there is legal precedent for trying illegal combatants via military tribunal. In Ex parte Quirin, “the Court reasoned that the Articles of War then in effect made clear that, in conferring jurisdiction on general courts-martial to try violations of the law of war, Congress had not intended to limit the long recognized jurisdiction of military commissions.”(Everett, 2006, p.1) Considering the instable legal premises, it may be wise to examine the consequences of both civilian and military trials. Amongst the arguments for civilian trial is the following doozy...”Killing terrorists carries even greater costs as it creates more bitterness among already hostile populations”(Brook, 2010, para.13); or paraphrased simply, killing people that hate you makes them hate you. Although this is specific to Islamic terror, that writer ignores the difference between dal al harb and dar al Islam, and generally ignores the motives behind terror in the first place. Moving past circular attempts at logic we can see an argument that combines deontological argument as well as an appeal to the utilitarian public relations aspects of a civilian trial, the call for due process; however, this appeal fails to note that military trial also requires due process, if in a different form then civilian justice. On the other hand, military tribunals have some advantages. A major advantage is that intelligence sources and methods are protected, whereas in a civilian court they are open to defense inquiry, exposing them to counter-attack. There are other problems that have already occurred, highlighting the certainty of negative consequences. In one case, “Prosecutors in the first major terror trial after Sept. 11 were hindered by superiors from presenting some of their most powerful evidence” (AP, 2005, para 1.) Even worse, terrorists have been aided and abetted by traitors within the American legal system. Lynne Steward is one such traitor. “Stewart was sentenced to two years and four months in prison in 2005 for helping Sheik Omar Abdel-Rahman talk to militants from prison after his 1996 conviction for plotting to blow up New York City icons”(Gendar & Goldsmith, 2009, para. 7)
But how does a prosecutor know when a terror suspect should be considered as a criminal as opposed to a terrorist? What is the difference in crimes? Foster contends that “A primary part of [this] definition that separates terrorists from ordinary criminals is motive. For someone to commit a terrorist act his or her motivation must be a social, political or religious cause”(Foster, 2005, p.2) In addition, another variant is that “One of the main objectives of terrorism is usually to gain publicity for some cause” (O'Connor, 2006, para. 39). Terrorists committing crime may be identified by ties to terrorist groups. Finally, some crime may be committed by terrorists for the purposes of funding terror.
In conclusion, although the dominant trend in legal precedent is to treat all persons in the American legal system as though they have Constitutional protection, there is also precedent for trying violators of the laws of war under the jurisdiction of military tribunals. Because the duty of American security professionals towards terrorist is not consistently and specifically defined, because there is due process under military law even if it is not the same due process civilians are entitled to, and because the consequences favor military tribunals, it should be seen that terror suspects should be tried by military tribunal.
References
Associated
Press
(2005). AP: Superiors thwarted terror prosecutors. Retrieved June 17,
2006 from
http://usatoday30.usatoday.com/news/washington/2004-08-08-terror-trial_x.htm
Baxi,
U. (2005, Spring/Summer). The "War on Terror" and the "War
of Terror":Nomadic multitudes, aggressive incumbents, and the
"New" international law: Prefactory remarks on two
"Wars”.Osgoode
Hall Law Journal.Volume 43, Number 1/2 .
Retrieved June 16, 2006 from
http://digitalcommons.osgoode.yorku.ca/ohlj/vol43/iss1/2
Brooks,
B. (2010, March 30). Military tribunals vs. criminal trials: A
different perspective. Foreign
Policy Journal.
Retrieved June 16, 2006 from
http://www.foreignpolicyjournal.com/2010/03/30/military-tribunals-vs-criminal-trials-a-different-perspective/
Cole,
D. (2003) Are foreign nationals entitled to the same constitutional
rights as citizens? Thomas
Jefferson Law Review,Vol. 25:367
Retrieved June 16, 2006 from
http://scholarship.law.georgetown.edu/facpub/297
Elsea,
J. (2014).The Military Commissions Act of 2009 (MCA 2009): Overview
and legal issues. Congressional
Research Service.
Retrieved June 17, 2006 from
http://www.fas.org/sgp/crs/natsec/R41163.pdf
Everett,
R. (2006). The role of military tribunals. Brown
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. Retrieved June 17, 2006 from
http://www.bu.edu/law/central/jd/organizations/journals/international/volume24n1/documents/1-14.pdf
Foster,
R. (2005). Terrorism :Crime or aysmmerical warfar? Hi
Tech Criminal Justice.
Retrieved June 17, 2006 from
http://www.hitechcj.com/sitebuildercontent/sitebuilderfiles/terrorism.crime.or.warfare.r1.pdf
Klein,
A. (2010). The end of Al Qaeda? Rethinking the legal end of the war
on terror. Colunbia
Law Review. Vol. 110:1865.
Retrieved June 16, 2006 from
http://www.columbialawreview.org/wp-content/uploads/2010/11/110-7_Klein.pdf
Gendar,
A, & Goldsmith, S. (2009, November 17). Conviction of disbarred
lawyer Lynne Stewart upheld for smuggling messages to jailed
terrorist. Daily
News.
Retrieved June 16, 2006 from
http://www.nydailynews.com/news/crime/conviction-disbarred-lawyer-lynne-stewart-upheld-smuggling-messages-jailed-terrorist-article-1.415941
International
Red Cross.
(1949) Convention (III) relative to the Treatment of Prisoners of
War. Geneva, 12 August 1949. Retrieved June 17, 2006 from
http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=2F681B08868538C2C12563CD0051AA8D
Lapkin,
T. (2004, Fall)Does Human Rights Law Apply to Terrorists? Middle
East Quarterly VOLUME XI: NUMBER 4
Retrieved June 16, 2006 from
http://www.meforum.org/651/does-human-rights-law-apply-to-terrorists
O'Connor,
D. (2006, May 6). The criminology of terrorism: History, law,
definitions, typologies. Cults
and Terror.
Retrieved June 16, 2006 from
http://www.cultsandterror.org/sub-file/TOConnor%20Lecture.htm
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