Doing Justice during Wartime: Why Military Tribunals Make Sense

By Sofaer, Abraham D.; Williams, Paul R. | Policy Review, February 2002 | Go to article overview

Doing Justice during Wartime: Why Military Tribunals Make Sense


Sofaer, Abraham D., Williams, Paul R., Policy Review


ON NOVEMBER 13, 2001, President Bush issued a Military Order authorizing the Department of Defense to create military commissions to try non-citizens who are members of al Qaeda or who have attempted or carried out acts of international terrorism. The promulgation of the order was met with overwhelming public support, but with a stream of criticism from civil libertarians and others concerned with the possible dilution of due process standards. The Military Order has also sparked a lively debate among lawyers and pundits in the op-ed columns of America's newspapers focusing on the legality of the commissions under international law and their actual utility in fighting terrorism.

What has unfortunately been missing from this debate is its proper political context. The question is not whether a military commission is a good or bad thing, but whether any adequate mechanism currently exists for prosecuting prisoners who end up in U.S. custody during the new terror war facing America and its allies. The narrow legalistic debate has failed so far to do justice to the magnitude and nature of the threat of terror war and the policy context for the decision to use military commissions. In this broader context, it becomes clear that current domestic and international mechanisms cannot respond effectively to the needs encountered in the current terror war, but that military commissions, properly used, can do so at least for now. In the longer run, the existing Yugoslav tribunal offers substantial promise as an international terrorism court for particular types of cases. But in the meantime, the need for an effective mechanism is acute, and the military commissions provide one.

Criminals v. enemies

THE CURRENT DEBATE over military commissions is so intense and widespread that it gives inordinate importance to the question of the forum in which terrorists should be tried. In reality, courts, in whatever form, have only a small role in the terror war currently underway. The campaign of terror war directed against the United States can be described as "unconventional warfare conducted by unprivileged combatants with the assistance of criminal co-conspirators designed primarily to terrorize and kill civilians." This campaign has been underway for nearly a decade and will likely continue well into the foreseeable future. The potential use of military tribunals was not intended and should not be seen as an effort to shortcut court procedures ordinarily applicable to individuals charged with crimes. Rather, it was intended as a major shift in policy away from the criminal law model as a means for deterring and preventing terrorism. Until September 11, 2001, when al Qaeda struck American targets, including the World Trade Center (in 1993), President Clinton promised to hunt down those responsible and "bring them to justice." Unfortunately, he meant this literally: He called in the FBI as lead agency, and turned to federal prosecutors as the means for fulfilling his pledge. Naturally, no issue of where to prosecute terrorists arose, because in those few instances when the U.S. was able to arrest a terrorist, criminal trials were the principal means intended to "bring them to justice."

President Bush put all that behind him after the attacks of September 11. He called the attacks "acts of war," and demanded that the Taliban surrender Osama bin Laden and other al Qaeda leaders on pain of being treated the same as they, as "enemies" of the United States. When the Taliban refused, hailing bin Laden as a Muslim "hero," Bush (with Congress's support) attacked Afghanistan with military force and turned to the Department of Defense to lead the campaign. The terror war, long pursued by al Qaeda, was finally confronted as an issue of national security, rather than one of criminal law enforcement.

Taking his cue from this major shift in policy, Attorney General John Ashcroft, along with FBI Director Robert S. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Doing Justice during Wartime: Why Military Tribunals Make Sense
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.