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Chelsea Gabel (University of Windsor Ontario)

Judicial Options for Counterattacking Terrorist Violence

 

I. Introduction

            The events of September 11th, 2001 were unlike any other incident of terror because the United States (U.S.) and the North Atlantic Treaty Organization (NATO) deemed the attack as an armed attack against the United States. The armed attack statement was important because it indicated that the U.S. proposed to structure the act of terrorism as an incident equivalent to an act of war under international law. Arrests and detentions of alleged perpetrators associated with the planning and execution of the attacks of September 11th have increased dramatically shortly after the attacks, and continued to occur as the war against terrorism persisted in Afghanistan, Iraq, and other parts of the world. As a result, fundamental moral, legal and political questions about how these individuals accused of terrorist acts should be treated have been the centre of debate. Evidently, the United States has many options that it may proceed to implement. Three options are discussed in this essay. Specifically, the United States can choose to turn an alleged terrorist over to an International Tribunal, try the individual in a U.S. district court or try the individual by U.S. military commission. While the advantages and disadvantages of each option are multi-faceted, military commissions seem to be the most appropriate alternative for trying the most serious categories of alleged terrorists.      

            The U.S. was successful in displacing the Taliban regime and permitting the creation of a transitional government in Kabul. The first strategy of the Bush administration was to disrupt Al Qaeda by military means…Overthrowing the Taliban faction was also a signal lesson to complicit Muslim regimes that might be tempted to shelter Al Qaeda. Addicott notes that “In the wake of the military campaign in Afghanistan approximately 500 Al Qaeda and Taliban fighters were captured and turned over to U.S. forces for disposition. In March 2002 approximately 300 had been transported to Guantanamo Bay, Cuba, for temporary internment” (2002: 2). Currently, the total number of detainees at Camp Delta in Guantanamo Bay is standing at 536. On November 13, 2001, President Bush signed a military order which authorized the creation of military tribunals to try certain non-citizens involved in terrorist activity against the U.S. The question addressed in the presidential order of November 13, 2001 is thus at hand. This paper will analyze what should be done with the members of Al Qaeda once they are in our hands? Should they be detained, and if so, on what basis? Should they be tried, and if so, in what court? It is important to note that the International Criminal Court (ICC) is not an option for prosecution because its jurisdiction applies only with respect to crimes committed after the entry into force of its treaty-based statute, and that has not yet occurred. It would therefore not be entitled to examine any terrorist crimes associated with the current campaign against terrorism. (Scheffer, 2001: 6). International law has not resolved the question of how free societies under assault can accommodate the requirements of the international law of human rights with the need to protect their populations. The military order raised by President Bush on November 13th, 2001 concerning the use of military tribunals to try certain Al Qaeda members has posed many significant questions in the most intense manner.

II. Trials in United States Federal Courts: Difficulties with the Organized Crime Model of International Terrorism

Trying alleged terrorists by means of U.S. federal district courts is one option for prosecuting these individuals. While there are some advantages to trying alleged terrorists in a federal court, including the guarantee of due process rights to the defendant that would not otherwise exist in an international or military tribunal, many specific concerns with the appropriateness of federal courts remain.

 The first is protecting intelligence information obtained from sensitive sources. There are limitations on what the intelligence community, concerned with possible future attacks rather than punishing past attackers, are willing to publish in open courts. The 1980 Classified Information Procedures Act gives rules on using secret information at trial, but trials must remain open. Ultimately, the particulars to be used against the defendant must be made known to him and to the world at large. A second limitation of the U.S. federal court in trying cases of alleged terrorists is the problem of what can be placed before a jury for evaluation. There are evidentiary limitations on what can be introduced in court In an American criminal jury trial, only eyewitness testimony and first-hand speech by the defendant can be considered, with very few exceptions. Authentication requirements are rigorous for physical evidence, and search and seizure law is enforced by keeping avowedly reliable evidence away from the view of the jury. A third limitation involves the issue of trial security. The possibility of jury intimidation is greatly reduced when military personnel rather than civilians are involved. The federal judges who prosecuted the Al Qaeda cases throughout the 1990s have been provided with twenty-four-hour security by special teams of federal marshals. However, as Wedgwood points out “No such protection is available for juries, who are summoned to sit as a duty of citizenship, rather than as volunteers” (2002: 331). In the aftermath of September 11th, with the history of violence demonstrated by Al Qaeda, it is difficult to understand how the security of trials can be guaranteed against terrorist groups.

 III. The Pragmatic Argument for an International Tribunal

            A second option for trying alleged terrorists is the use of international tribunals. As it currently stands, the Hague tribunal can only try the offenses that occurred in the former Yugoslavia. However, as Solis suggests “The United Nations could establish another ad hoc international tribunal to try Taliban and Al Qaeda terrorists” (2002: 198). The tribunal would have jurisdiction over any individual suspected of organizing or executing the crime of international terrorism. It could require the cooperation of any member state of the United Nations to acquire evidence and to apprehend and transfer any indicted suspect. (Scheffer, 2001: 12) The crimes committed by the terrorists are, it could be said, crimes against universal morality as reflected by international law. An argument could be made that terrorists be tried for those international offenses and those who try them should have and be seen to have the impartiality that is presumed to come with international rather than merely national institutions of justice (Anderson, 2002: 594). Fletcher agrees with this statement and suggests that “it would be possible to join the ideas of justice and war in charges of war crimes against those responsible for the September 11 attacks. The appropriate place to bring these charges would be an international tribunal established by the United Nations…the neutrality and international participation would bestow on the judgments much greater credibility than a partisan in the war could claim for itself” (2002: 652). However, the enthusiasm expressed in government press statements in support of international tribunals is low.

The reason appears to be issues surrounding security. Governments do not want the responsibility of hosting an international tribunal, moreover, they do not want to be accountable for the imprisonment of convicted terrorists. For these purposes, governments would rather see the United States bear this type of responsibility. The use of an international tribunal is attractive but probably not workable due to concerns over such issues as the absence of a death penalty, possible security comprises of sources and techniques, and reduced levels of due process provided to the accused (e.g., no jury trial, only a simple majority of a panel of judges is required to convict).” (2001: 3). While the option of facilitating an international tribunal appears to be an appropriate one because of its legal authority and the support it would receive from the international community, implementing an international tribunal would likely be exceedingly difficult.

 

IV. A Qualified Defense of Military Tribunals

The third option being analyzed is to try alleged terrorists in specially created military commissions. President Bush issued a Military Order on November 13, 2001, which directed the Secretary of Defense to create military tribunals and to take into custody at once anyone the President names as subject to the Order.  The Military Order authorizes the contemplated military commissions to sit at any time and place, including within the United States, and gives them subject matter jurisdiction to prosecute individuals for violations of the laws of war and other applicable laws concerning acts of international terrorism. The authority of the United States to convene military commissions is found in the Constitution. Article I, section 8, grants Congress the power ‘to define and punish…Offenses against the Law of Nations’ and ‘to make Rules for the Government and Regulation of the land and Naval Forces’. Article II, section 2, names the president ‘Commander in Chief of the Army and Navy. In general, the responsibility is left with the President, and the military commanders representing him, to employ military commissions. There are no standing rules for military commissions . The President, as commander in chief, decides what rules shall apply. The presidential order of November 13th contains a general outline of the rules of evidence and procedure, and authorizes the Secretary of Defense to establish the commissions.

            Human rights activists should not apply different standards to military tribunals in the U.S. than they apply internationally. For example, Anderson notes that “this same human rights community has been careful to construct international tribunals, such as the Yugoslavia tribunal” (2002: 612). Therefore, the international human rights community may support international tribunals that do not conform to the U.S. constitution, so should they not also support military tribunals that also don’t conform to the U.S. constitution? Human rights activists cannot have it both ways. Second, permanent residents of the United States, like citizens, have full constitutional protection. However, referring to the military order, Katyal et al. point out “The range of people eligible to be named is vast - potentially jeopardizing the rights and liberties of the approximately 20 million aliens in the United States, as well as any United States citizen anywhere in the world” (2002: 1260). This indicates that the military order is flawed in that it would not treat alien permanent residency as a separate and protected category of non-citizen. Federal courts, however, have and, in my estimation, would continue to read the language of the Sixth Amendment, ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury’, for example, as applicable to permanent residents.  It could be argued that not even Congress should allow a president to subject any resident alien to trial by military tribunal.

            Territoriality should be a factor in the case of nonresident aliens lawfully on the territory of the United States. Any individual lawfully on U.S. territory would not be subject to military tribunals. However, the military order does not distinguish between a permanent resident who had entered the country lawfully perhaps many years before but who underwent a conversion of doctrines of terrorism and an individual who had entered the United States on allegedly valid papers, but with the intent of committing terrorism. Katyal et al. state that “language in the Order strongly suggests a desire to eliminate even habeas corpus review of the legality of the entire scheme and of the tribunals’ jurisdiction over particular individuals” (2002: 1261). However, as Mundis points out “[D]espite the language of section 7(b) (2) of the Military Order, the accused will be able to petition courts for relief in the form of habeas corpus proceeding” (2002: 322). Habeas corpus would serve as the protection for those nonresident aliens with valid papers, present in the United States, but accused of terrorist activity.

            Virtually, no Taliban, al Qaeda or other terrorist satisfies the very precise Geneva Conventions requirements for prisoner of war status. Instead, captured al Qaeda and Taliban fighters are illegal combatants because they engage in combat while evading requirements imposed by the law of war. Referring to illegal combatants, Anderson notes that “They are to be fought militarily as unqualified combatants, but if captured, treated as criminals. Article 75 of 1977 Protocol I to the 1949 Geneva Conventions specifies fundamental guarantees regarding treatment of those held by opposing powers. It would be more correct for the United States to explicitly frame its military commissions as compliant with Article 75 of Protocol I and to assert that they are regularly constituted courts, with regular judicial procedures, operating in an impartial manner. Article 75 defines these fundamental rights that include being informed of the reason for detention, sentencing only upon conviction by an impartial court, respecting the generally recognized principles of regular judicial procedure, no compulsory self-incrimination, the attendance of friendly witnesses and the attendance of cross-examination of hostile witnesses. The United States has signed the 1997 protocols, but it has not ratified them. Technically, the U.S. is not instantaneously bound by them but is still bound by its signature not to undertake any act that would defeat their goal. The procedures defined in Article 75 are far below what the U.S. has declared will be the procedural protections of the military commissions. The provisions of the Military Order concerning due process rights of the accused fall short of those that would apply to U.S. citizens or military members tried by court-martial. Even conceding that military tribunals are permissible for the narrow category of unlawful belligerents, the Order is much too broad. The United States can and should frame these military commissions as consistent with international humanitarian law in this time of actual hostilities. Military tribunals can be shaped to meet the requirements of an effective tribunal if it is within the provisions listed in Article 75.

V. The Detainees at Guantanamo Bay, Cuba

            In the course of the armed conflict in Afghanistan that was a response to the terrorist attacks of September 11th, 2001, the United States detained hundreds of individuals associated with either the Taliban government or Al Qaeda organizations. Two important questions arise regarding the issue of treatment. The first is the question of interrogation of the prisoners. The second is how long the United States might hold them, and whether it has any legal obligations, either under international law or U.S. law, to bring charges or release them. It is important to note that those detainees The United States interrogated the detainees for information on Al Qaeda operations; in doing so, the camp commander asserted that there was ‘no torture, no whips, no bright lights, no drugging. Issues concerning the treatment of the detainees led to questions about their exact status under Article 4 of the Third Geneva Convention and about who should decide such matters.

VI. Conclusion

            There are still many questions that need to be addressed on what should be done with members of Al Qaeda once they are in the hands of the United States. The possibilities are numerous, but suggestions have asserted that trials against any al Qaeda member should take place in federal court or an international tribunal. While both of these approaches employ provide numerous advantages, the reality is that the perpetrators of the September 11th attack have made themselves not merely criminals but enemies of the United States. It becomes evident that the terrorists and organization involved in the September 11th attacks do not fit the definition of combatants entitled to receive POW status. While the Military Order signed by the president is flawed in many respects, military commissions can be framed and can be made compatible with the Constitution, the Geneva Conventions and international law to penalize the most serious of alleged terrorists.