ASIL Insights

Tribunals and the Events of September 11th
By Ruth Wedgwood
December 2001

             The violence of September 11 has challenged the law. The hijackings, the use of airplanes as weapons of mass destruction, the toppling of the World Trade Center towers and the kamikaze attack on the Pentagon may be, at one and the same time, domestic crimes under American law, international crimes, and acts of war.  How, then, should one handle any alleged members of the al Qaeda terrorist network who are caught on the battlefield in Afghanistan, found in other countries, or even in the United States?   How does one try a crime with 4000 victims, even in the midst of an ongoing conflict?

            The theoretical possibilities for addressing acts of terrorism include international tribunals, federal courts, and military commissions.  Each has its proponents, and their arguments will be reviewed in turn.

            International courts have the advantage of universality.  A verdict pronounced by international judges may reemphasize that the basic norms of humane warfare are shared among legal systems.  An international tribunal can be established by the United Nations Security Council, acting under its power to address threats to international peace and security.  Ad hoc tribunals were established in 1993 and 1994 to prosecute war crimes, genocide, and crimes against humanity arising in the internecine conflicts in Bosnia, Croatia and Kosovo, as well as Rwanda. On this model, international judges would be elected by members of the Security Council and the General Assembly, and an international prosecutor selected by a similar process.

            Critics of this option argue that the number of  possible defendants would overwhelm the realistic capacity of international courts - for example, only 31 individuals have been tried by the Yugoslav tribunal in 8 years, at a cost of $400 million.  Intelligence intercepts will be crucial in establishing the guilt of some al Qaeda leadership, yet cannot easily be shared with non-American personnel in an international forum in the midst of an ongoing war.  The court would likely have only a single American judge (so important trial panels would lack an American), and the prosecutor would most likely not be an American.  There is no death penalty in modern international tribunals, even for the most heinous crimes. And the necessary security for an international tribunal would be difficult to arrange, unless the trials were held in a military facility remote from any urban areas.  Finally, it can be argued that a nation's right of self-defense carries with it the classical expectation that it can try the war crimes arising out of the attacks against its territory and citizens.

            Proponents of trials in national criminal courts - in particular, in federal district courts - argue that this method was successfully used to convict defendants who carried out prior attacks by al Qaeda, including the 1993 truck bomb attack on the World Trade Center, and the 1998 truck bombings of two American embassies in East Africa.  The 1980 Classified Information Procedures Act provides courtroom procedures to minimize the unnecessary disclosure of sensitive information.  Federal statutes allow the full range of penalties for terrorist attacks on American civilians and American facilities, permitting capital punishment where victims have died.  Prosecutors have been willing to make delicate decisions about disclosing evidence necessary for proof of a case, including an al Qaeda training manual and testimony about the structural stability of the World Trade Center towers.  Open trials in federal district court allow the international public to review the evidence and see that justice has been done.

            Critics of this option argue that the events of September 11 have changed the balance of harms and benefits.  Previous trials did not prevent continued al Qaeda attacks - a strategy of interception as well as deterrence is necessary for that.   Domestic criminal law supposes that future crimes can be avoided through deterrence, but the al Qaeda cult of martyrdom presents obvious difficulties for that peacetime strategy. Disclosure of the methods used by the government to follow the activities of al Qaeda network, in order to prove a case in open court, could have disastrous consequences, especially since it is believed that al Qaeda has attempted to acquire weapons of mass destruction such as radiological bombs and nuclear devices.  Bin Laden and the al Qaeda network are skilled in counter-surveillance, and have changed communications systems several times, to shut down U.S. surveillance. Under existing rules, a federal courtroom cannot be closed, even in the case of sensitive operational information, and al Qaeda members can scrutinize the trial record to see what the government knows about their operating methods. In addition, the strict rules of evidence in federal trials prevent the jury from hearing various forms of probative evidence, including reliable hearsay. Providing security to judges and jurors is a severe challenge, and the location of district courthouses in urban areas poses a hazard to innocent civilians.

            The third option is the possible use of wartime military tribunals.  Bin Laden has announced his intention to wage war on the United States, in a 1998 fatwa, and the Congress has authorized the use of the war power to protect the United States against al Qaeda.  The attacks on the World Trade Center violated the fundamental rules of the laws of armed conflict and should be considered war crimes, for al Qaeda deliberately targeted civilians and deliberately caused disproportionate damage to civilians. The traditional venue for enforcing the law of war has been military tribunals - indeed, Nuremberg itself was a military court.  Federal district courts gained alternative jurisdiction to hear war crimes cases only in 1996, and even then, Congress recognized in a "savings" clause the continuing role of military commissions. There is famous precedent from World War Two and the Civil War.  In 1942, Franklin Roosevelt convened a military tribunal to try the German saboteurs who landed on Long Island and Florida, and authorized military commissions on numerous other occasions throughout the war.  The Supreme Court upheld the President's authority on three separate occasions in the Second World War. President Lincoln similarly used military commissions to try saboteurs in the Civil War, including a Confederate who tried to burn New York City in an act of arson.  The recent Executive Order issued by President Bush, setting out the jurisdiction of military commissions, is limited to foreign nationals, and may permit open trials (except for sensitive evidence), the participation of civilian judges and defense counsel, and some form of appellate review. Habeas corpus review remains available for any defendant arrested in the United States.

            Critics of the proposal argue that any such tribunals should be established by Congress on particular occasions, and are not adequately grounded in the authorizing provisions of Title 10 of the United States Code or in the President's powers as Commander-in-Chief.  They also argue that use of military courts makes it more difficult for the United States to recommend against their use to other foreign countries in civil conflicts, especially countries in which democracy is unstable.  Critics also argue that any revelation of operational information in open court is simply the necessary price of visible justice.   A second form of critique is the claim that one could accomplish many of the same goals with a modified form of civilian court, in particular, a civilian court that dispensed with the role of the jury, permitted the closing of proceedings on limited occasions, and allowed hearsay evidence.  Proponents of military tribunals could reply that none of these modifications in civilian tribunals is possible under current interpretations of the Fifth and Sixth Amendments of the US Constitution, unless one considers the tribunals to be variants of military commissions under the war power.  In any event, a modified civilian tribunal could be established only through Congressional action, which has not been forthcoming, and must still leave in place the President's power as Commander-in-Chief to detain al Qaeda members as unprivileged combatants for the duration of the conflict. 

            The discussion of the military tribunals has begun in several Congressional committees, and may continue when the President issues rules of evidence and procedure for implementation of the Executive Order.