Academic journal article
By Janik, Anton L., Jr.
Denver Journal of International Law and Policy , Vol. 30, No. 4
The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process ... [T]hey will have a fair trial, but it'll be under the procedures of a military tribunal and rules and regulations to be established in connection with that ... We think [it] guarantees that we'll have the kind of treatment of these individuals that we believe they deserve. (1)
"Bush [has] undermined the anti-terrorist coalition, ceding to nations overseas the high moral and legal ground long held by U.S. justice. And on what leg does the U.S now stand when China sentences an American to death after a military trial devoid of counsel chosen by the defendant?" (2)
In this paper, the competing reasons for prosecuting foreign terrorists under tribunals, be they domestic, foreign, international, military, or a combination of the above, are explored. A focus is specifically given to the efforts being taken against the al Qaeda militants detained in Guantanamo Bay, Cuba. (3) U.S. foreign policy and international human rights concerns are juxtaposed against the public desire for retribution in the wake of the September 11th attacks, and the question of whether the U.S. is better served by prosecuting foreign terrorists under international tribunals is discussed.
Section I provides an introduction to military tribunal terminology and procedure. Section II describes the history of the international military tribunal as created in 1945, the use of foreign national tribunals, the International Court of Justice, and the rise of the International Criminal Court. Section III discusses both the history of domestic military tribunals and President Bush's military tribunals (4) plan. Section IV discusses the arguments for and against applying either international legal or U.S. constitutional protections to al Qaeda. Section V addresses whether America's foreign policy interests are best served by prosecuting al Qaeda members in U.S. military tribunals or under an international tribunal. The conclusion follows in Section VI.
I. AN INTRODUCTION TO MILITARY TRIBUNAL TERMINOLOGY AND PROCEDURE
In its most traditional form, a military tribunal is a war-time judicial proceeding "used to try violations of the laws of war." (5) According to the Bush Administration, the September 11th attacks on the World Trade Center complex, the Pentagon, and on Flight 93, grounded in Pennsylvania, constitute "acts of war," (6) and attacks on innocent persons, a violation of the laws of war. The Bush Administration has determined that the culprits of those attacks are a "collection of loosely-associated terrorist organizations known as al Qaeda." (7)
President Bush, under both his power and authority as the Commander-In-Chief of the military as provided by Article II of the U.S. Constitution, and under Article 21 of the Uniform Code of Military Justice, has the power to convene military tribunals. (8) Under U.S. law, the Supreme Court permits the use of military tribunals against non-citizens unless, under the Geneva Convention, those defendants are considered "prisoners of war." (9) However, the Supreme Court does not restrict military tribunals to use against non-citizens: in Ex parte Milligan, the Supreme Court held that U.S. citizens may be tried by military tribunals, but only if civilian courts are "not open." (10)
Under the International Covenant on Civil and Political Rights, the United Nations requires that military tribunals be fundamentally fair. (11) Among the Civil and Political Rights Covenant's requirements, a military tribunal must ensure a "fair and public hearing by a competent, independent and impartial tribunal established by law," (12) and provide the defendant with the presumption of innocence. …