[This has been forwarded around a bit. Mark Kleiman teaches public
policy at UCLA (http://www.sppsr.ucla.edu/faculty/kleiman.htm) and was
the Director of Policy and Management Analysis for the Criminal
Division at the DOJ. --Declan]
---
From: "Kleiman, Mark" <[EMAIL PROTECTED]>
Subject: Military tribunals
Date: Tue, 11 Dec 2001
Friends:
Several of you, noticing my silence so far on the military tribunals
issue,
have written wondering whether I was sick or had merely gone soft on
Bush.
In fact, I was waiting to have dinner with my old friend Ruth
Wedgewood, now
of Yale Law School and SAIS, who's an expert on the law of war and
other
relevant topics. However, the dinner, scheduled for tonight, has been
moved
back a couple of days. So here goes. (Anyway, waiting to write until
I
actually knew something would have felt like cheating.)
So far, what I've read seems to have failed to separate two quite
different
issues: the first-order question of how captured al-Qaeda operatives
and
allies should be handled (and how precisely to define who counts as an
operative or ally) and the second-order question of who gets to decide
that
first-order question. [Since the first-order question is itself
largely
procedural, having to do with the constitution of a court and its
rules of
evidence and standards of proof, we have one procedural question
stacked on
another.] The discussion has also largely omitted any consideration
of the
various goals to be sought, and the means-ends relationships between
alternative procedural formats on the one hand and the goals on the
other.
The discussion as also, I think, entirely missed the whole point of
the
exercise from the Administration's viewpoint; once again, the press
has been
snookered into cooperating.
First things first: What are we trying to do? (1) Win a war, which
means
putting the opposing force in a position where it lacks the will or
the
means to inflict further damage on us. (Call that the military
objective.)
(2) Discourage other individuals from joining al-Qaeda to attack the
US;
discourage other groups from attacking the US; discourage other
governments
from helping al-Qaeda or other groups attack the US. (The deterrent
objective.) (3) Ensure that individuals who have committed crimes
can't do
it again. (The objective of incapacitation.) (4) Punish individuals
who
have committed crimes (the retributive objective), to make ourselves
feel
good, to vindicate the rights of those victimized, or because we owe
it to
the criminals.
[That last one is according to Kant, who must have been smoking
something;
the first one isn't really much of a reason; but the one in the middle
- the
state acting as the kin group acts in a society that recognizes the
feud -
strikes me as important and under-appreciated. Not punishing the
criminal
validates the victimization, which both adds insult to injury and
identifies
the victim, and similarly situated persons, as people who can be
injured
with impunity. That's part of the justification for hate-crimes
laws.]
The law of war, as I understand it, makes a distinction between
soldiers on
the one hand and saboteurs and spies on the other. Soldiers, who
fight in
uniform and answer up a chain of command, are entitled if captured to
be
held in prisoner-of-war camps with various rights protected. In
principle,
they are being held, not punished. Spies and saboteurs, who fight
surreptitiously, are liable if caught to be summarily executed, like
Nathan
Hale and Major Andre. (Soldiers who fight "unlawfully" -- i.e.,
commit war
crimes -- are also subject to punishment; I'm vague on the procedural
difference between the drumhead court-martial that deals with a spy
and the
war-crimes trial of a soldier.)
Al-Qaeda has committed acts of war against the United States, but it
isn't
an army; its operatives don't wear uniforms and don't have superiors
accountable for their actions. If sneaking into an enemy camp, not in
uniform, to plant a bomb is an act of sabotage that can be punished
summarily, then I can't see why hijacking a plane to fly it into a
civilian
building is any different.
Even if it can't be shown that Bin Laden personally gave the orders
for
September 11 or any of the previous outrages, he was undoubtedly the
leader
of the organization that carried them out. Again, it's hard to see
why he,
and the rest of the al-Qaeda leadership, shouldn't be subject to the
same
treatment as their operatives. If, having captured them, we then take
him
out and shoot them, I for one will be in a mood to celebrate.
The Taliban fighting forces, by contrast, are an army, and the Taliban
regime was a de facto government, though one we (properly, I think)
refused
to recognize. Allowing al-Qaeda to operate from Afghani territory was
an
evil thing to do, and quite plausibly constituted war crime. (And the
way
they ruled Afghanistan arguably constituted a crime against
humanity.) But
that doesn't seem to me to justify treating Omar, if captured, the way
we
would be justified in treating Bin Laden. He's more like Milosevich,
or the
German and Japanese officials tried after World War II.
[And we may want to be a little careful about establishing as a legal
principle that a government official who as a matter of policy
facilitates a
terrorist act can be held criminally responsible; it's not that I
wouldn't
personally like to see Jesse Helms executed by the government of
Angola for
his assistance to Jonas Savimbi's (continuing) campaign of mass
murder, or
Oliver North on trial in Nicaragua for his contribution to Contra
terrorism,
but how about officials of governments that abetted ANC terrorism in
South
Africa?]
When it comes to Taliban soldiers (whether Afghanistani or foreign)
captured
in the fighting, they would seem to be entitled to POW treatment
unless they
personally committed or ordered war crimes. After all, we didn't
treat
German or Japanese soldiers in World War II as criminals, even though
we
hanged their leaders. However, according to newspaper accounts, the
Northern Alliance does not subscribe to this theory, and Taliban
volunteers
(as opposed, supposedly, to conscripts) and especially foreigners in
Taliban
service, are being treated as criminals.
The question of what to do with the al-Qaeda leadership if we catch
them is
made simpler by being overseas, in a combat zone, where military law
is
obviously the relevant law. It's made more complicated by the
distance
between the acts of sabotage and the people being captured and
punished for
it. The summary nature of the military trial of spy or saboteur is
justified by the fact of his being caught more or less red-handed.
Even if
we're prepared to say - as I think I am - that every cook and driver
and
computer technician at al-Qaeda headquarters was part of a bandit gang
and
ought to hang, figuring out who was actually a member of al-Qaeda
isn't
going to be completely straightforward. (Note that this would mean
treating
al-Qaeda membership more severely than we treated SS membership; if we
wanted to make finer distinctions of degrees of culpability within
al-Qaeda,
that would make the decision-making process even harder.)
In any case, from an American Constitutional perspective, none of this
matters very much. It's clearly a military issue, and it has nothing
to do
with the rights of people who live here, as citizens or otherwise.
Now take the case of Mr. Moussauoi, or the al-Qaeda operatives who
apparently tried to hijack a fifth plane on September 11. They're
much more
like the classic saboteurs contemplated by the law of war. So why
shouldn't
they get the same drumhead court-martial and the same swift death?
Arguably, they should: that's the precedent of the Nazi saboteurs. A
military tribunal is likely to punish more swiftly, more certainly,
and more
harshly than a civilian court; those differences might, in a
particular
case, serve military, deterrent, incapacitative, or retributive
purposes.
Those advantages (from the viewpoint of a prosecutor) arise
from
virtually every element of a military trial. Such a trial can admit
evidence derived from warrantless wiretaps and other searches, and
evidence
derived from "extraordinary means of interrogation" (i.e., torture).
It can
also admit secret evidence, and deny the defense the ability to force
the
prosecution to reveal how that evidence was gathered. This prevents
both
the revelation of information that might serve an enemy and the
practice of
"graymail," where a defendant uses the threat of such revelation as
leverage
in plea negotiations. It can admit hearsay. It is staffed by
military
officers, not civilian judges and jurors. In addition to the fact
that the
members of such a court have just been fighting the organization of
which
the defendants are members, they know that their careers can be
advanced or
damaged by the decisions they make. (My favorite howler in the debate
so far
is the argument that having terrorists tried by military courts is
perfectly
fair, because after all we're willing to have our own soldiers tried
by the
very same courts: as if being tried by one's enemies were exactly the
same
as being tried by one's comrades-in-arms.) Moreover, the rules of
military
justice explicitly allow what is called "command influence," i.e. the
lobbying of the judges by their superior officers, which would
obviously be
improper as applied to civilian judges or jurors. There's no
time-consuming
jury selection process. And the appeals process is truncated (to
zero,
according to the Executive Order).
Now on the assumption that all defendants are guilty and
deserve the
maximum sentence, these are all advantages. On any other assumption,
we
might want to look at them more skeptically. Some people have been
heard to
deny that our President has a subtle sense of humor, but Swift himself
couldn't have topped the wonderful circularity of saying that these
procedures are fine for deciding whether to punish people for
terrorist
acts, because they will only apply to terrorists.
Take the hearsay rule, for example. Assume we have an intelligence
report
dated September 9th in which Agent X reports that Informant Y told him
that
al-Qaeda member Z told Informant Y that Bin Laden had ordered a major
operation for September 11th. As a matter of ordinary reasoning from
evidence, this is a smoking gun. As a matter of law, it's utterly
inadmissible, even putting the sources-and-methods question aside:
just one
more instance in which the rules of evidence embody very faulty
epistemology. On the other hand, the hearsay rule is also what keeps
out
mere unsubstantiated gossip; I once sat in a European courtroom in
which a
police intelligence analyst was allowed to testify that information in
the
intelligence files (not produced, or further identified) showed the
defendant to have engaged in a pattern of behavior consistent with
money-laundering, and on that basis the defendant was duly convicted.
Again, if we're dealing with "smoking gun" cases, none of this bothers
me
very much. If someone whose photo was taken at an al-Qaeda training
camp
gets caught with a suitcase full of dynamite at an airport security
checkpoint, the risk of a miscarriage of justice is slight. But the
sweep of
the legal principles of aiding and abetting, and of conspiracy, is
immense.
As long as you and I have entered into a common purpose which is
against the
law, I can be held fully responsible for anything you do in
furtherance of
that purpose, whether I agreed to it or not, and whether or not I ever
did
anything at all, let alone anything unlawful, to further that
purpose. That
means that lots of people whose connection is much less clear than Mr.
Moussaoui may find themselves facing capital punishment with
diminished
procedural rights. Investigators are not shy about using threats to
extract
information from witnesses: threats of what will happen to them
unless they
talk, and threats of what will happen to people they care about. This
has a
way of making people remember what they know, and also what they don't
know.
Military tribunals will make those threats that much more effective.
Now the terror phenomenon genuinely raises questions about
some
important substantive elements of American criminal jurisprudence.
For
example, it is not a crime to state the opinion that the world would
be a
much better place without John Smith in it, or that John Smith
deserves to
die, or that it's God's will that John Smith should die and whoever
kills
him will receive great reward in the Hereafter, unless those
statements are
made in the presence of a mob likely to make an imminent attack on
Smith or
are directed to some particular individual or individuals (in which
cases it
counts as "inciting"). So the people who published the fatwa against
Salman
Rushdie weren't committing any crime. Perhaps that's wrong; it
certainly
makes me uncomfortable. On the other hand, a law making it a crime to
assert that any particular law should be broken would clearly go too
far.
There's a mullah in New Jersey (I can't recall his name) who for
several
years has been preaching jihad against the United States. A civilian
court
probably couldn't be convinced that he's a co-conspirator in the
September
11 horrors without some direct nexus, but perhaps a military court
could be
so convinced. I, for one, would be delighted to have him bumped off,
legally or otherwise, (assuming, of course, what I don't know, that
the
press reports about what he's been saying are accurate). [I add in
haste
that I urge none of you to act on that thought.] But the notion of
making
that substantive change in criminal law through a procedural back door
makes
me very, very nervous. On the other hand, the front-door approach
could be
even worse: there has already been a serious Congressional move to
make it a
crime to distribute information intended to facilitate the violation
of the
drug laws, which arguably would criminalize telling heroin addicts how
to
avoid getting AIDS by using clean needles. An advantage of
instituting
military tribunals restricted to accused terrorists is that it would
cabin
off changes that might otherwise spread to the whole of our criminal
law.
Now the Executive Order setting up the tribunals would seem to exclude
the
case of the New Jersey mullah, because the person involved is a
permanent
resident. A fortiori, it wouldn't apply to citizens. But who says
so?
Just the President. If he has the power, by decree, to authorize
aliens in
the United States to be tried before military tribunals today, what
keeps
him, or his successor, from changing that decree next year to include
permanent residents, and the year after to include citizens? Does the
name
"Theramenes" ring a bell?
[No, I guess it doesn't. (Classicists please skip to the next
paragraph.) The story is originally in Xenophon, and is retold
beautifully
in Mary Renault's Last of the Wine. When the oligarchs took power
from the
democrats in Athens during the Peloponnesian War, a council of thirty
(known
to its enemies, and to history, as the Thirty Tyrants) was
established. One
of its more moderate members was Theramenes, who was widely respected
even
by the democratic party. Theramenes supported the restriction of the
franchise to a list of three thousand men. He also agreed to a
proposal of
Critias, the hard-line leader, that the right of trial by the
assembly,
formerly guaranteed to all Athenian citizens, should be restricted to
that
same list. Eventually, Critias went too far in repressing the
democrats,
and Theramenes objected. Critias then had him arrested in a council
meeting. When Theramenes demanded a trial by the Assembly, Critias
... but
you've guessed it by now ...crossed his name off the list of voters,
and had
him executed forthwith.]
So I'm not very concerned about trying al-Qaeda folks before
military tribunals, but the notion of doing so by decree strikes me as
an
extremely bad idea.
Moreover, it isn't necessary if the goal is simply to take captured
terrorists out of circulation. As Ruth Wedgewood has pointed out, any
captured enemy warrior, even a lawful one, can be held without trial
as a
prisoner of war until the war is over. (Which in this case might be
the
Twelfth of Never.) A tribunal adds only two things to that: a
determination
of guilt, so that the person can be treated as a criminal rather than
a
soldier (but unlawful warriors aren't entitled to POW protections
anyway)
and the possibility of execution. Retribution can wait. So the
justification for holding trials now before military tribunals, rather
than
holding prisoners until al-Qaeda is no longer a fighting force, must
depend
on the value of quick executions to deterrence or to the military
objective
of breaking the will of the enemy. To have a military court sentence
someone to prison whom we could have held as a prisoner without a
trial
seems pointless.
But that, I think, is the real point here. The purpose of the
executive order wasn't to actually have military trials; note that
Zacharias
Moussaoui is to be tried in a civilian court. Its purpose, which it
has
beautifully served, is to start a debate about military tribunals, as
a way
of making Democrats, liberals, and academics, who stubbornly insisted
on
supporting the Administration's anti-Qaeda policies, take a stand
against
them, thus allowing the Bush team to question their patriotism.
That's why
the order was so sloppily drafted that even its supporters have to
defend it
for what it should have said rather than what it says (e.g., by
arguing that
the provision decreeing that there shall be no appeal from the verdict
of
the tribunals doesn't mean it). That's why there was no consultation
on
Capitol Hill; and of course Sen. Leahy immediately fell into the trap,
making a Constitutionally quite reasonable complaint about not being
consulted which the Bushies immediately spun as personal pique
interfering
with national security. And that's why John Ashcroft made that
McCarthyite
speech about how anyone who criticized the Administration was
supporting
terrorism. The Washington Post promptly spanked Ashcroft in an
editorial,
which of course he didn't mind at all. The Post pointed out that this
wasn't an outburst, but part of a prepared text, and therefore must be
taken
to represent Ashcroft's considered views. The Post didn't point out
that
all such testimony must be cleared by the White House. The voice is
the
voice of Ashcroft, but the hands are the hands of Karl Rove.
Let's not forget, this stuff worked for the Republicans all
during
the Cold War. It won't be nearly as easy or as successful this time,
because the factual basis is so utterly absent. It was in fact the
case
that liberals were somewhat more likely than conservatives to see some
good
in leftist regimes and movements that were also friendly with the bad
guys,
and considerable evil in rightist regimes and movements that were on
our
side against the Bear. But aside from Noam Chomsky and others who
have
simply let their anti-Americanism become a habit, there's no one on
the left
who really has much in the way of sympathy for al-Qaeda, and no
important
Democratic politician who has any at all. In opposing al-Qaeda, we
really
have overwhelming national unity, with no partisan or ideological
division.
That's why it was so clever of the Bushies to invent military
tribunals as a
wedge issue to drive the civil libertarians back into opposition. It
won't
work well. But it will work some.
There! I haven't gone soft after all. Aren't you relieved?
---
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