What to do with Bin Laden and Al Qaeda terrorists? A qualified defense of military commissions and United States policy on detainees at Guantanamo Bay Naval Base.

• Author: Anderson, Kenneth

1. INTRODUCTION

   The United States has successfully brought down the Taliban regime in Afghanistan. Together with increasing law-enforcement arrests and detentions of individuals alleged to be connected with the planning or execution of the attacks of September 11, the American military accomplishment has now pressed into the foreground essential moral, legal, and political questions about how those detained and accused of terrorist activity should be treated. Who should try them? What is the appropriate jurisdiction and authority? What rights do they have?

   Proposals for how to treat the most serious category of suspects--those believed to have been involved in the planning or execution of the September 11 attacks--have fallen into three main camps. The first group has called for having them tried by international tribunals. Such proposals have included: extending the jurisdiction of the current Yugoslavia tribunal to cover the September 11 attacks and its Al Qaeda sponsors, establishing a new ad hoc tribunal under the authority of the Security Council, or amending the terms of the not-yet-in-force International Criminal Court to allow it to begin hearing terrorist cases. Second, many commentators, especially in the United States, have called for terrorist suspects, no matter where they are found, to be tried in United States district courts for applicable violations of United States and international criminal law. Third, the Bush Administration has announced plans, pursuant to a Military Order signed by the President in his capacity as Commander in Chief, to create the option of trying non-citizen suspects in specially created "military commissions." (1)

   The Military Order has provoked a storm of protest from various civil libertarians, civil and human rights organizations, newspaper editorialists, academics, members of Congress, and sundry others, mostly on the political left, (2) but including some prominent conservatives such as New York Times columnist William Safire (3) and Rep. Bob Barr (R-Ga.). (4) Combined with related criticism of other domestic security measures enacted by Congress in the wake of the attacks or put in place by the Bush Administration largely through actions by Attorney General John Ashcroft, protest over military tribunals and other perceived restrictions of civil liberties has constituted most of the domestic dissent from the Bush Administration's conduct in the wake of September 11.

   Seemingly surprised by this criticism, the Bush Administration has moved to mollify opponents by promising additional regulations outlining the actual procedures for the military commissions (to be drafted by the General Counsel of the Department of Defense). The regulations apparently will provide for greater procedural protection than the original order requires. (5) The Bush Administration has also moved, however, to challenge critics on grounds of national security and war-time exigency. In hearings before the Senate Judiciary Committee, for example, Attorney General John Ashcroft "bluntly [told] lawmakers that their `power of oversight is not without limit,' and that, in some areas, `I cannot and will not consult with you." (6)

   The aim of this Article is to give a qualified defense of the use of military commissions to try, as the Military Order says, "Certain Non-Citizens in the War Against Terrorism," (7) including their use to determine the legal status of detainees at Guantanamo Bay Naval Base. It is a highly qualified defense of military commissions, in that it does not seek to defend the actual terms of the Military Order, but instead simply the concept of military commissions as such.

   Moreover, this Article leaves aside all the other domestic security polities that resemble the contours of a national, security state modeled on the least attractive years of the Cold War. Indeed, a fundamental reason for supporting the making of war outside the United States is to prevent the erosion of our domestic arrangements and civil liberties by instead destroying those abroad who would bring war to this society, for it is better to make war on our enemies abroad and to destroy them and their threat than to create a long-term police and surveillance state at home. Quite possibly this is a fool's hope; the Bush Administration, consistent with the pattern of American governments across our history in time of war, including the administrations of great presidents such as Lincoln and Franklin Roosevelt, has sought to make war abroad a basis for constricting civil liberties at home. For the most part, this approach must be opposed.

   Yet, imperfect as the Military Order is (one hopes those drafting the final regulations in the Pentagon will have learned from the controversy), the fundamental concept of using military commissions is morally, politically, and legally justified. They can be shaped and made to work consistent with the Constitution, international law, and particularly the Geneva Conventions, to which the United States and its military are deeply and correctly committed. They--not international tribunals nor even ordinary United States district courts--ought to be the vehicle for the trial and punishment of at least the most serious categories of alleged terrorists, i.e., those who by their conduct and ideology have made themselves not merely criminals but our enemies.

2. INTERNATIONAL TRIBUNALS

   1. The Liberal Internationalist Argument For an International Tribunal

      The argument in favor of using international tribunals to try suspected terrorists can be made on either of two grounds, one broad and one narrow. The broad ground is that of liberal internationalism. The crimes committed by the terrorists are, it could be said, crimes against the world at large and offenses against universal morality as reflected in international law. They should therefore be tried for those international offenses and, moreover, those who try them should have and be seen to have the impartiality that is presumed to come with international rather than merely national institutions of justice. (8) Liberal internationalists conclude that the appropriate forum for trying accused terrorists ought to be some form of international tribunal, convened under the authority of some international body, rather than simply the national courts of the United States.

      This approach is particularly attractive to "global elites," for whom "national" is synonymous with "parochial" and, indeed, practically synonymous with "illegitimate." More precisely, these groups instinctively favor international tribunals because they view "international" as synonymous with "universal." To support international tribunals is to promote a universal sense of justice and morality, most nobly embodied in the various declarations of universal human rights. (9) For these folks--including many members of the international nongovernmental organization (NGO) movement that generated support for international tribunals to deal with the atrocities in the former Yugoslavia and in Rwanda--advocating international tribunals is not a policy choice, but rather a cultural preference, more akin to a dietary taste or a religious choice than an argument deduced from empirical reason. (10) Universality is believed to be inherently more ethical; international institutions and mechanisms incarnate the universal in ways that, it is assumed, merely national or local institutions and mechanisms cannot. Therefore they hold a profound belief in the goodness of a federal world, a world in which local and national institutions must finally be subordinate to international ones.

      It is difficult to argue against liberal internationalism, and the reflexive endorsement of international and supranational institutions that it inspires, for the simple reason that the position is simply presumed to be universal. The debate between liberal internationalism and its principal rival, democratic sovereignty, resembles ships passing in the night. Nonetheless, it cannot have escaped the attention of the most fervid liberal internationalist that, as Dominique Moisi, a leading French political commentator, observed in assessing winners and losers among institutions following September 11:

      [t]he first beneficiary ... is, undeniably, the institution of the state. In the post-cold-war global age, the state's legitimacy and competence appeared to be waning. Caught between the emergence of civil society and the growing power of transnational corporations, the state appeared to be fighting a rearguard baffle. Now, with security a priority, it is back with a vengeance. (11) Accordingly, the immediate reply to the "broad" liberal internationalist call for international tribunals to try terrorists is that in a world in which people in the United States, in Europe, and elsewhere have immediately looked to their nation states for security and justice, the virtue of international tribunals is not obvious. Supporters tend to be academics, journalists, or members of the international NGO community. But it is striking how very little support they have elicited from the European Union, despite its enthusiasm for both the ad hoc tribunals dealing with the former Yugoslavia and Rwanda, and the nascent International Criminal Court. Few government press statements support international tribunals either. My private contacts among European diplomats have told me that the reason is security. Governments do not want the burden of hosting an international tribunal or, perhaps worse, being responsible for the imprisonment of convicted terrorists for long periods of time. They would much rather see the United States bear these risks.

   2. The Obligations of Democratic Sovereignty

      Even if their motivation is self-interest, allowing the United States to make the decisions and bear the security risks is morally correct. Whatever the outcome of the grand argument between liberal internationalism and democratic sovereignty, it...