The United States has successfully brought down the Taliban regime in Afghanistan. Together with increasing law-enforcement arrests and detentions of individuals alleged to be connected with the planning or execution of the attacks of September 11, the American military accomplishment has now pressed into the foreground essential moral, legal, and political questions about how those detained and accused of terrorist activity should be treated. Who should try them? What is the appropriate jurisdiction and authority? What rights do they have?
Proposals for how to treat the most serious category of suspects--those believed to have been involved in the planning or execution of the September 11 attacks--have fallen into three main camps. The first group has called for having them tried by international tribunals. Such proposals have included: extending the jurisdiction of the current Yugoslavia tribunal to cover the September 11 attacks and its Al Qaeda sponsors, establishing a new ad hoc tribunal under the authority of the Security Council, or amending the terms of the not-yet-in-force International Criminal Court to allow it to begin hearing terrorist cases. Second, many commentators, especially in the United States, have called for terrorist suspects, no matter where they are found, to be tried in United States district courts for applicable violations of United States and international criminal law. Third, the Bush Administration has announced plans, pursuant to a Military Order signed by the President in his capacity as Commander in Chief, to create the option of trying non-citizen suspects in specially created "military commissions." (1)
The Military Order has provoked a storm of protest from various civil libertarians, civil and human rights organizations, newspaper editorialists, academics, members of Congress, and sundry others, mostly on the political left, (2) but including some prominent conservatives such as New York Times columnist William Safire (3) and Rep. Bob Barr (R-Ga.). (4) Combined with related criticism of other domestic security measures enacted by Congress in the wake of the attacks or put in place by the Bush Administration largely through actions by Attorney General John Ashcroft, protest over military tribunals and other perceived restrictions of civil liberties has constituted most of the domestic dissent from the Bush Administration's conduct in the wake of September 11.
Seemingly surprised by this criticism, the Bush Administration has moved to mollify opponents by promising additional regulations outlining the actual procedures for the military commissions (to be drafted by the General Counsel of the Department of Defense). The regulations apparently will provide for greater procedural protection than the original order requires. (5) The Bush Administration has also moved, however, to challenge critics on grounds of national security and war-time exigency. In hearings before the Senate Judiciary Committee, for example, Attorney General John Ashcroft "bluntly [told] lawmakers that their `power of oversight is not without limit,' and that, in some areas, `I cannot and will not consult with you." (6)
The aim of this Article is to give a qualified defense of the use of military commissions to try, as the Military Order says, "Certain Non-Citizens in the War Against Terrorism," (7) including their use to determine the legal status of detainees at Guantanamo Bay Naval Base. It is a highly qualified defense of military commissions, in that it does not seek to defend the actual terms of the Military Order, but instead simply the concept of military commissions as such.
Moreover, this Article leaves aside all the other domestic security polities that resemble the contours of a national, security state modeled on the least attractive years of the Cold War. Indeed, a fundamental reason for supporting the making of war outside the …