The Debate Over Military Courts

Military tribunals have been around for a long time in the United States, and they have often been controversial. The very idea of such courts is now provoking dissent both here and abroad. On Nov. 13 President Bush signed an executive order permitting individuals who are accused of terrorism and are not U.S. citizens to be tried in special military courts. Some commentators promptly approved this action; others promptly denounced it. And late last month, Spain said it would not extradite the eight men it is holding on charges of complicity in the Sept. 11 attacks without assurance that the accused would be tried by a civilian court rather than by a military tribunal.

No such tribunals have been set up yet, nor have details for their operation been worked out. At the moment, therefore, they are an option, one that, according to the Nov. 21 issue of The Wall Street Journal, has already stirred debate within branches of the federal government itself.

Advertisement

Zacarias Moussaoui, a Moroccan arrested on Aug. 17 on immigration charges, is currently being held in New York City on suspicion of having been closely linked to the Sept. 11 hijackers. It is reported that some top officials in the administration favor trying Mr. Moussaoui in a military court, where evidence can be presented in secret to avoid revealing particulars of the antiterrorist struggle. But some federal prosecutors think the trial could be effectively conducted in a civilian court without either compromising U.S. intelligence or creating the impression that the defendant received something less than due process.

Bemused citizens may wonder why military courts should ever be needed. Doesn’t the United States have multileveled structures of state and federal courts? It does, but a bit of history is enlightening here. For a decade after the Civil War, much of the former Confederacy was under martial law, with military tribunals supplanting civil courts. That was because the North was convinced that the state courts in the South lacked procedures that would ensure justice for African Americans.

The South, of course, detested this arrangement and bargained its way out after the chaotic presidential election of 1876. Moderate Southern Democrats accepted the contested victory of Rutherford B. Hayes, a Republican, and he in turn withdrew the federal troops that still occupied parts of the South. But the Reconstruction era left behind an illustration of a principle that Mr. Bush may now have in mind: military courts are established when and where civil courts cannot function.

The president presumably foresees circumstances when this would be the case. If terrorists are captured in Afghanistan or Pakistan, it might seem advisable to try them on the spot. The option for a military tribunal might then be exercised, because the United States has no civilian courts in those countries and does have reason to doubt the adequacy of the local judicial systems. If foreign terrorists are tried in the United States, security considerations might seem to require the secret sessions that are allowed by military tribunals but prohibited in civil courts.

Those who defend Mr. Bush’s executive order argue that it is a prudent response to a global terrorist network. Those who criticize the directive argue that it is unnecessary, because U.S. federal courts could conduct these trials circumspectly and expeditiously while meeting fair standards.

But surely both sides would agree that the success of the campaign against terrorism is far more important than the question of how Osama bin Laden and his associates are to be dealt with once they have been rendered harmless. While they are waiting for that success, the nations making up the antiterrorist coalition should seriously explore the possibility of having terrorists tried by an international tribunal like the one that conducted the 1945-46 Nuremberg trials of former Nazi leaders.

Meanwhile, here is some advice for the president and some for his critics. In whatever courts they are eventually tried, members of Al Qaeda will be seen by many Muslims, particularly those in Arab nations, as martyrs. All the same, the United States must try hard not to contribute to that impression. Mr. Bush must make the strongest possible case. He must do his best to convince both Americans and their allies that whatever Mr. bin Laden’s degree of direct responsibility for the Sept. 11 attacks, he was at least an accomplice.

Those who oppose the executive order would be wise to avoid giving the impression that the only alternatives are national security on the one hand and respect for individual rights on the other. If the choice is presented in those terms to the legislature, the courts or the American people as a whole, national security wins hands down every time.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.

Advertisement

Don't miss the best from America

Sign up for our Newsletter to get the Jesuit perspective on news, faith and culture.

The latest from america

Indigenous people walk past Pope Francis after presenting offertory gifts during the pope's celebration of Mass at the Maquehue Airport near Temuco, Chile, Jan. 17. (CNS photo/Paul Haring)
Pope Francis appealed to the Mapuche, who have suffered “great injustices,” to totally reject violence “which can make a just cause turn into a lie.”
Gerard O’ConnellJanuary 17, 2018
Dolores O'Riordan, former lead singer of The Cranberries, performs on stage during a concert in 2007 in Tirana, Albania (CNS photo/Arben Celi, Reuters).
She was Dickensian, if Dickens had written a Gaelic warrior-waif, a hero with a voice that could thrill and comfort.
Cameron Dezen HammonJanuary 17, 2018
Pope Francis dove head-first into Chile's sex abuse scandal on his first full day in Santiago.
Pope Francis meets with priests, religious and seminarians at the Metropolitan Cathedral in Santiago, Chile, Jan. 16. (CNS photo/Paul Haring)
Francis focused for the second time today during his visit to Chile on the abuse scandal that has rocked the Chilean church. “I know the pain resulting from cases of abuse of minors, and I am attentive to what you are doing to respond to this great and painful evil,” he said.
Gerard O’ConnellJanuary 16, 2018