The War on Terrorism is heading to the courts, but not the type with an impartial judge and jury. The Pentagon just announced that it will prosecute two Guantanamo Bay detainees using military tribunals. This is the first use of military tribunals since the end of WWII.
The accused are Ibrahim Ahmed Mahmoud al Qosi and Ali Hamza Ahmed Sulayman al Bahlul. Both served as bodyguards and aides for Osama bin Laden and are charged with conspiracies to commit war crimes. Bahlul is especially notorious for the creation of an al Qaida recruiting video that glorified the attack on the USS Cole in which 17 American sailors were killed. The decision to use military tribunals to try suspected terrorists dates back to a November 2001 order issued by President Bush. Non-citizens are subject to the presidential order if there is reason to believe they are members of al Qaida, have aided or abetted terrorism, or have harbored terrorists.
The tribunals will only vaguely resemble anything an American citizen would recognize as a court. The tribunals will consist of three to seven military officers, not the twelve person juries used in federal criminal cases. Instead of a unanimous decision, conviction may be obtained by a two-thirds vote. Evidence that would normally be prohibited in federal court (e.g., hearsay testimony), will be permitted if it has probative value to a reasonable person. The accused cannot even consult with their attorneys in private without the risk of government eavesdropping. If convicted, Qosi and Bahlul may not appeal to federal circuit court. How strange that while conducting a War on Terror to supposedly preserve our system of government and traditions, we discard the very basics of our justice system. What a powerful statement it would be to al Qaida to accord Qosi and Bahlul a fair trial in civilian courts. In effect, we would be telling bin Laden that even after his best shot, we still believe in the superiority of our system. And to prove the point, we are offering his foreign henchmen the same rights and protections accorded to American citizens.
The typical War Hawk response to such a position is that the trial of suspected terrorists in civilian courts will inevitably delve into classified information. While this is true, it does not sanction the use of military tribunals. If the government is concerned about secret information, it need only invoke the Classified Information Procedures Act, which sets forth steps for the safeguarding of sensitive information during the course of criminal trials.
Others argue that military tribunals are better suited to try these terrorist enemy combatants. This is sophistry. The federal government prosecuted the terrorists who bombed the World Trade Center in 1993 in civilian courts as well as the conspirators who plotted to blow up New Yorks Holland Tunnel. The responsible parties for the 1998 bombings of two American embassies in Africa were also tried in civilian courts. And who can forget the prosecution in federal court of Timothy McVeigh, our own homegrown terrorist?
In 1798, James Madison observed that it is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad. With the recent decision to prosecute Qosi and Bahlul in military courts, the Bush administration calls into question American adherence to the rule of law, which is the foundation of our system of ordered liberty. Even at its height of power, al Qaida could never come close to such an accomplishment. Osama bin Laden, though on the run in the mountains of Afghanistan, should take time out to thank Washington for this victory.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.
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