THE DEBATE OVER MILITARY TRIBUNALS HAS BEEN largely conducted in terms of the trade-offs between national security and civil liberties. But this debate has tended to obscure an equally important issue: How does the question of where to try accused terrorists fit into the larger goals of fighting terrorism? The Bush administration has tried to prepare the public for a protracted new cold war, punctuated by occasional hot wars. New hot phases of the war on terrorism could take place in any state deemed to be supporting global terrorism--a list that might include Somalia, Sudan, Iraq, Iran, North Korea, Yemen, and Syria. Yet because of the nature of terrorist acts, a war on terrorism must be fought not simply against states but also against individuals.
So a protracted war against terror must combine military force with the resources of the criminal-justice system. And this exercise must be multilateral in two complementary senses: Military campaigns and their aftermath require the assembly of coalitions, the cooperation of allies, and the use of international peacekeeping forces and relief efforts under the aegis of international agencies. Furthermore, a war against terror necessarily requires the cooperation of many nations in hunting down and bringing to justice individual suspects. Simply to try all suspected terrorists before U.S. military tribunals intended for emergency battlefield conditions would put America at odds not only with its own domestic constitutional safeguards but with international conventions on the treatment of prisoners of war. In the long run, this would jeopardize alliances, put Americans overseas at risk, and set back our own values as well as the war effort.
In some respects, international terror is analogous to international organized crime. Fighting more traditional organized crime poses many of the same difficulties: the tension between securing convictions and jeopardizing informants, security risks, and the difficulty of collecting sufficient evidence to convict. But we have developed laws and procedures that make it possible to hunt down and prosecute drug lords, traffickers in women and children, illicit arms traders, and money launderers--all operating through global networks. We can fight global terrorist networks the same way, by relying on greater international collaboration.
Developing a global criminal-justice response to terrorism first requires building networks of law-enforcement officials to match global criminal networks. Here the Bush administration has started well. Networks of police officers, intelligence operatives, immigration officials, and financial regulators have already yielded important dividends. Indeed, Tom Ridge's job as Office of Homeland Security director is to coordinate these networks, not only across the nation but across the world. The European Union is moving to institutionalize its law-enforcement networks even further by creating a European warrant.
Yet cooperation between the United States and its allies is still uneven. Several European countries initially hesitated when the United States asked them to freeze financial assets of organizations suspected of funneling funds to al-Qaeda. Recently, however, Interpol and U.S. officials reached agreement on a common database to which all 179 Interpol members will contribute and have access. Thus the United States is now reaching out to the world's principal international law-enforcement agency.
A related challenge is to develop a mature global court system. The "where will the terrorists be tried" debate has been miscast, because it inevitably assumes that there is one answer. The media have constructed an artificial trichotomy among military tribunals, national courts, and an international tribunal. In fact, all of these forums are likely to be necessary, at different times and for different purposes.
THE ROLE OF MILITARY TRIBUNALS
Military tribunals have been used historically to try spies and saboteurs. …