Having Their Day in Court

By Robert H. Bork, an NR Contributing Editor
From the December 17, 2001, issue, of National Review

The debate over the president's order creating military tribunals to try suspected terrorists consists largely of warring slogans and overripe rhetoric: "shredding our Constitution," "seizing dictatorial power," etc., on the one hand, and some version of "the bastards don't deserve any better" on the other. Analysis is in short supply. The issue of the balance between security and civil liberties will be with us, in various guises, for a long time to come. The reality we face means that no resolution of such issues will be wholly satisfactory.

When the issue is trying terrorists, there appear to be only four options: trial in a federal court; trial before an international tribunal; trial before a military tribunal; or setting the captives free. No body this side of a psychiatric ward will choose the last option. But the first and second don't win any prizes either.

Trials in federal courts have features that make them totally inappropriate for the trial of terrorists. Jurors often respond to emotional appeals, and, in any event, would have good reason to fear for their and their families' safety if they convicted. Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another. An open trial and proceedings of that length, covered by television, would be an ideal stage for an Osama bin Laden to spread his propaganda to all the Muslims in the world. Many Islamic governments would likely find that aroused mobs make it impossible to continue cooperating with the U.S.

The conclusive argument, however, is that in open trials our government would inevitably have to reveal much of our intelligence information, and about the means by which it is gathered. Charles Krauthammer notes that in the trial of the bombers of our embassies in Africa, the prosecution had to reveal that Amer ican intelligence intercepted bin Laden's satellite phone calls: "As soon as that testimony was published, Osama stopped using the satellite system and went silent. We lost him. Until Sept. 11." Disclosures in open court would inform not only Middle Eastern terrorists but all the intelligence services of the world of our methods and sources.

Trials before an international tribunal would have all of these defects and more. Picking the members of the court would itself be a diplomatic nightmare. It would be politically impossible to keep judges from Islamic countries off the court. In the past, moreover, international courts have often shown a pronounced anti-American bias. Our prosecutor would be helpless to avoid a propaganda circus and the disclosure of our intelligence capabilities and methods. In the end, convictions would be highly uncertain, but, if obtained, impassioned dissents and the martyrdom of the terrorists would be certain. We should be wary of international tribunals in any event since their establishment seems part of a more general move to erode U.S. sovereignty by subjecting our actions to control by other nations.

Military tribunals avoid or at least mitigate these problems. Propaganda by televised speeches would be impossible and any required disclosure of intelligence methods and successes would be secret. Since trials could move far more efficiently and appeals are cut off by the president's order, punishment of the guilty would be prompt. One of the prices we pay for an all-volunteer military is that for most Americans their armed forces are an unknown world about which it is possible to imagine all sorts of evils; but military tribunals are not, as they have been called, "kangaroo courts" or "drumhead tribunals." Much of the public is probably frightened by visions of defendants convicted out of hand and bustled off to firing squads.

During the Korean War, the officers in my battalion took turns prosecuting and defending. (I had a notable lack of success in both roles.) I sat on the court, and never saw an innocent man convicted but did see a guilty man acquitted. (I prosecuted that one and it still rankles.) Even then, before the widespread reform of the military justice system, military courts manned by officers, in my opinion and that of many others, were superior to the run of civilian courts, more scrupulous in examining the evidence and following the plain import of the law. If I were guilty, I would prefer a civilian jury; if innocent, a military court.

These virtues would be irrelevant if military tribunals were of dubious constitutionality. They are not. The constitutional issue reached the Supreme Court in Ex parte Quirin (1942). German saboteurs had entered the United States illegally to destroy war industries and facilities. Arrested by the FBI before they could act, they sought to file for writs of habeas corpus, contending they had a right to trial before regular courts rather than a military commission. The presidential proclamation establishing the commission denied them access to those courts.

The Court denied the petition, judging it irrelevant that one of the defendants might be an American citizen. In its decision, the Court made clear the separate constitutional tracks of the two forms of justice: "Presentment by a grand jury and trial by a jury . . . were at the time of the adoption of the Constitution familiar parts of the machinery for criminal trials in the civil courts. But they were procedures unknown to military tribunals which are not courts in the sense of the Judiciary Articles" of the Constitution. Consistent with that understanding, military tribunals have been used by several presidents in time of war. In the Revolutionary War, before there was a Constitution, George Washington employed such tribunals freely, as did Abraham Lincoln in the Civil War, and Franklin Roosevelt in World War II. We remember the Nuremberg trial, with many of the trappings of a civilian court, as an attempt (failed in my view) to establish an international rule of law in open proceedings. That trial is not a model for the problem we face now. There were, of course, no problems of intelligence disclosures, but, more important, the open trial was not regarded by the allies as the only, or in all cases the preferred, method of proceeding. According to Mark Martins, a respected scholar and military lawyer, "German regular army soldiers were also defendants in many of the thousands of military courts and commissions convened by the Allies after the war in different zones of occupation."

If there is a problem with Bush's order, it is the exemption of U.S. citizens from trials before military tribunals. Quirin held that Americans can be tried there, and it is clear that they should. The trial of American terrorists in criminal court would pose all the problems of trying foreign terrorists there: The prosecution would have to choose between safeguarding our intelligence capacity and trying the terrorist. The terrorists could well go free. Contrary to some heated reactions, military tribunals are well within our tradition. They are needed now more than ever.

I feel vindicated: based on substantial experience with both, Bork says that if he were guilty, he would want a civilian jury, but that if he were innocent, he would prefer a military court. I said the same thing a few days ago on this forum based only on my personal acquaintence with two retired military judges. Anyway, the idol of the conservative right has now opined on the issue. :)

Excellent article by Robert Bork. He makes it clear there is a definite need for military tribunals. I concur in that not only are they constitutional, what's more I see no reason in the world why enemies watching us should learn how we discovered and apprehended terrorists. Our sources of information and intelligence methods are assets we should never dilvulge under any circumstances. If we are reluctant to do so in peacetime we should absolutely forbid their disclosure in war time where what we know could make a difference between victory or defeat. Where the security of our country is concerned, hostile aliens and American traitors who aid the cause of the enemy should be summarily dealt with since by definition they are an immediate danger. At least we have been graced by a fine legal mind who understands perfectly and explains in no uncertain terms why the President is doing what he decided to do.

Absolutely awesome piece. Thanks for posting. This brilliant work is just another reason why the Dems were so afraid of the notion of a Justice Robert Bork: The power of his arguments and the forcefulness of his delivery.

I have participated in several Courts Martials. I have been the defending counsel and prosecutor, early in may career as a line officer in the USN. What Bork says is true. Justice is what happens in a military court. It is stripped of all the grandstanding that happens in civil court. When I was the procecutor, and a Ltjg, I faced two civilian lawyers and won. Fairly easy. The sailor was up for unauthorized absence (he had made a career of it and had prior brig time. We gave him several chances to straighten out but finally gave up).

On the day of his trial, he was UA. He changed his plea from not-guilty to guilty.

Thanks for the ping. I'll have to read it later. If anyone hasn never read any of Judge Bork's books, I highly recommend trotting on down to the library and checking one out. He wrote one about courts and their decisions, and it was very enlightening. And frightening.

thanks for the post. this is the most comprehensive case for tribunals i have seen. the more i hear the arguments for tribunals, the more in favor of them i am.

when a trial threatens national security, it should go through a military tribunal or other such mechanism guaranteeing secrecy.

If US citizens will be tried by secret military tribunals, then we've essentially destroyed our justice system. One thing that bothers me on this issue is that people only think in terms of one possibility instead of two. The suspect could be either guilty or innocent. And people who support tribunals say "If he's guilty, he doesn't deserve any Constitutional protections", all the while ignoring the possibility that the suspect is innocent. So we're just supposed to trust the military courts to try,convict, and execute the right people? If they're so efficient, why don't we use them for all crimes? The reason our justice system is open is that there can be some kind of public accountability. It may be ok to use tribunals for foreigners, who definitely have no Constitutional rights, but should not be used against citizens. If we do, we'll be going back to the secret courts and secret evidence of the medieval period.

As the daughter of a former JAG lawyer who never lost a case, it was always clear to me that real justice is meted out in military hearings. I distinctly recall a rape case where the accused was pronounced guilty at the conclusion. The violated woman was vindicated and there wasn't a person in the small courtroom who could have said otherwise after hearing the evidence. The way things ought to be....

But I digress - Bork is right - the President needs this available tool.

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