Military Tribunals No Answer

December 11, 2001 • Commentary
This article appeared in USA Today.

Everyone wants Osama bin Laden and his al‐​Qaeda lieutenants to pay for the atrocities that were committed on Sept. 11. Many of us hope bin Laden and his band of barbarians will go down fighting on a desolate battlefield in Afghanistan. That would make trials unnecessary. But if bin Laden and his followers surrender or get captured, we must decide how to bring such people to justice.

Polls might well support a summary proceeding and a firing squad, but that is the type of justice meted out by our enemies. We must keep our understandable desire for vengeance in check or we will lose sight of what the American flag represents and what our troops are fighting for.

The battlefield is certainly no place for lawyers or judges, but the Constitution does follow the flag. Thus, whenever our government seeks to put someone on trial for a capital offense, the prisoner must be accorded due process of law.

President Bush and others have argued that a criminal trial in a federal district court would be the wrong forum for bin Laden. They argue such a trial might require the disclosure of valuable information that is presently classified.

Another argument is that the safety of jurors and court personnel would be jeopardized by inviting a terrorist reprisal at the courthouse. Those are valid concerns, but special military commissions are not the answer. Our military court system is designed for the men and women who serve in our armed forces. Our Constitution simply does not permit the president to set up some new court where he can assume the role of judge, jury and executioner.

If President Bush decides that an ordinary criminal prosecution against the al‐​Qaeda terrorists is impractical, there is another option. After World War II, the Allied forces convened a temporary international war crimes tribunal in Nuremberg. Many of the Nazi leaders were prosecuted, convicted and executed after receiving due process before that tribunal. If the jurisdiction of a Nuremberg‐​type tribunal is limited to foreigners who are captured abroad, the American Constitution would not be offended.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice