- Nov 22, 2003
Judgment at Guantanamo
Give jihadists the rights to which they are entitled--and no more.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Sunday, September 10, 2006 12:01 a.m. EDT
As it enacts new rules for military commissions, Congress--as well as the public--should keep two overriding principles in mind. One: While the jihadists detained at Guantanamo Bay must have due process of law before they can be criminally punished, they are not--despite a billowing cloud of confused reasoning, misleading testimony and downright propaganda--entitled, under the U.S. Constitution or relevant international law, to the same level of procedural protections enjoyed by the lawful soldiers of sovereign states. Two: The methods of warfare employed by unlawful combatants in the war on terror fully justify extraordinary trial rules.
Let's take the first issue. In Hamdan v. Rumsfeld, the Supreme Court invalidated the Pentagon's original military commission rules, holding that they must be the same as in American courts martial. But it reached this conclusion only because of language--requiring military commission and courts-martial procedures to be "uniform insofar as practicable"--in the Uniform Code of Military Justice. Congress can and should change this language.
As to international law: Under the Geneva Conventions, captured enemy soldiers accused of criminal violations are entitled to courts-martial procedures only if they qualify as "lawful" or "privileged" combatants. At a minimum, this requires their association with a group that has a regular command structure, wears uniforms, carries its arms openly, and obeys the laws of war--including the injunction against deliberate attacks on civilians. Al Qaeda and its allies do not qualify.
Thus the Guantanamo detainees are not entitled to be tried by courts martial unless Congress specifically says so. Congress should now join the president and declare explicitly that they are not so entitled. While unlawful combatants have always been considered a scourge to humanity, today they pose the greatest single threat to organized society, and every opportunity must be taken to de-legitimize them. Permitting them the same rights as honorable soldiers undercuts this goal.
With regard to the second issue--fair trials--it is precisely because jihadists deliberately target civilians for attack that there is a greater premium on the development and protection of intelligence sources and methods than in conventional warfare: Terrorist attacks must be prevented, not merely defeated. Consequently, the cost of exposing classified information during a public trial is far greater. Military commissions must, when necessary, permit portions of the proceedings to be closed to the public, with less restrictive evidentiary rules.
The Supreme Court approved this procedure in the leading case of Ex parte Quirin (1942), where eight German agents, including an American citizen, were tried by military commission. Here the Court accepted the trial of "unlawful" enemy combatants conducted in secret with substantially relaxed rules of evidence, and without a jury. After the war, similar rules were utilized for military commissions by all of the common law countries, including Great Britain, Canada and Australia.
These procedures are also consistent with current international norms. Both the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda have routinely closed portions of trials (Slobodan Milosevic's trial proceedings were on many occasions closed to the public), and their rules permit the admission of "any relevant evidence . . . deem[ed] to have probative value," including hearsay. The International Criminal Court also permits closed proceedings--to protect, among other things, "confidential or sensitive information"--and follows highly discretionary evidentiary rules.
But can a defendant himself properly be excluded from any part of his trial, effectively keeping the identity of at least some witnesses secret? This implicates a core right of confrontation, and makes it more difficult to ensure a fair trial. However, there are a number of possible measures that can protect the defendant's interests. For example, a particular witness's identity may be hidden from the defendant, but not his lawyers. The judges may be required to discount, but not disregard, evidence that the defendant has not himself seen.
Congress should realize that, while the key test in any trial is whether the defendant has had a full and fair hearing and a meaningful opportunity to defend himself, the military and civilian justice systems can meet these goals in different ways. Also--and despite the occasionally hysterical critics of the administration--there is no established international law bar to keeping some evidence from the defendant in exceptional circumstances. Common Article 3 of the Geneva Conventions does not address the issue. It simply requires that defendants be afforded "all the judicial guarantees which are recognized as indispensable by civilized peoples."
What these indispensable guarantees include are not settled in international law. In practice, U.N. criminal tribunals have permitted numerous ex parte contacts between prosecutors and judges, as well as significant limits on the defendant's right of confrontation. In the Yugoslav Tribunal, witness statements rather than live testimony have been allowed, as have depositions from other trials which the defendant's lawyers have not had the opportunity to contest.
Moreover, the Yugoslav Tribunal has also made clear, in The Prosecutor v. Tadic, that the testimony of anonymous witnesses would be permitted in exceptional circumstances. The Bush administration proposal would also permit the use of "anonymous" evidence only in exceptional circumstances. In any case, the relevant tribunal rules have changed many times over the years--further evidencing the very unsettled state of international law in this area.
Overall, Congress should give unlawful enemy combatants their legally entitled rights--but no more. The real choices in crafting procedures for the trial of detainees in military commissions are a matter of policy. In this regard, the president's military commissions bill carefully balances the key relevant policy imperatives--ensuring a fair trial without undermining national security--and yet gives unlawful enemy combatants more due process than they've ever received in history. It should be promptly enacted.
Messrs. Rivkin and Casey, lawyers in Washington, served in the Department of Justice under Presidents Reagan and George H.W. Bush.