Terrorism and War

On June 13, 1942, a German submarine deposited four Nazi agents on a beach near Amagansett, Long Island; four days later another German sub dropped four more agents on Ponte Verda Beach in Florida. The eight agents--who spoke English and brought with them explosives, incendiary devices, and nearly $200,000--were to fan out across New York City, Chicago, and Cincinnati, blend into their surroundings, and then embark on a massive sabotage campaign against train stations, department stores, industrial facilities, and hydroelectric plants. But before the campaign got underway, one agent, George Dasch, got cold feet and turned himself in to the FBI. With Dasch's help, the FBI arrested the seven other would-be saboteurs.

With the German agents in custody, American law enforcement faced a dilemma much like the dilemma it faces today: Can the criminal justice system serve justice against terrorists? Because President Roosevelt wanted the men executed, and because he suspected that a regular criminal trial would not bring about that result, Roosevelt--in consultation with Attorney General Francis Biddle--signed an order creating a seven-member military commission to try the men. They were charged with violating the law of war, which prohibits crossing enemy lines in civilian dress with the intent to commit hostile acts. The trial began on July 8. One month later Dasch and another would-be saboteur who had cooperated with the FBI were sentenced to lengthy prison terms (although after the war, the two were paroled by Harry Truman); the six other Germans were executed.

Since the World Trade Center fell, the FBI has detained more than 1,100 people who may be connected to the September 11 attacks, or who may be plotting terrorism in the future. To do so, it has relied on laws covering immigration, perjury, and other areas--and now it can rely on the recently enacted U.S.A. Patriot Act, which gives the FBI increased leeway in gathering domestic intelligence. But rounding people up may be legally easy compared to putting terrorists--be they Al Qaeda foot soldiers or Osama bin Laden himself--on trial. And that's why some legal scholars--and even, apparently, some government officials--are arguing that it's time to consider a military tribunal once again.

The first argument for a military tribunal has to do with symbolism. As Spencer Crona and Neal Richardson argued in a 1996 article in the Oklahoma City University Law Review, "The strategy of treating terrorists as ordinary criminals, and placing them into the slow and indifferent mill of our criminal justice system, for acts that far transcend ordinary criminal acts, overlooks the essential difference in the nature of their crimes." Criminal trials in front of juries can drag on--one of the trials for the 1993 World Trade Center bombers lasted nearly nine months--and the entire proceeding can eventually end in mistrial if a single juror refuses to join in the verdict, as almost happened at the end of Manuel Noriega's seven-month-long trial in 1992. A military tribunal would be comparably swift and could be decided by a simple majority or super-majority of judges.

Another factor is security. Some worry that trials of terrorists or their accomplices, held in populated urban centers, would pose a tempting target for additional terrorist attacks. One advantage of a trial by military tribunal is that it doesn't have to be held in any particular jurisdiction or in any particular courtroom: The tribunals could be held on secure, relatively isolated military bases in the United States or even abroad.

But the most compelling arguments in favor of military tribunals concern the trial process itself. The rules governing any military tribunal could be established by order of the president or Congress. As such, the tribunal could be given discretion to decide what constitutes legitimate evidence, and what level of secrecy must be maintained. As Ruth Wedgwood, a Yale law professor and former federal prosecutor, notes, there's plenty of valuable and weighty evidence that can't be admitted into a federal district court because of extremely restrictive hearsay laws. "Take the news reports that Osama bin Laden told his mom, a few days before September 11, that he was going to have to be quiet for a while," says Wedgwood. "In a trial in a federal district court, you'd have to have his mother testify for that piece of evidence to be admissible. If she told a friend about the call, the friend's testimony would be considered hearsay." The rules of evidence for a military tribunal, by contrast, could be as loose as the tribunal's creator desired.

Even more important than the evidence prosecutors might be prohibited from using in a criminal trial is the evidence they would be reluctant to present in such a forum. Because defendants in criminal trials are entitled under the Sixth Amendment to open proceedings, any information introduced in them becomes public--which can cause problems. In the 1997 trial of Ramzi Yousef for his role in the 1993 World Trade Center bombing, it was disclosed that the twin towers were engineered to withstand a direct hit from a Boeing 707 plane. Is that why the September 11 hijackers used planes bigger than the 707?

The problem is even greater when it comes to evidence that would compromise future intelligence operations. "If the terrorists know what you know," says Wedgwood, "then they'll know how you found it, and they'll shut that channel off." In the end, prosecutors in terrorism cases might simply self-censor or decide not to bring a case at all. "We've had espionage cases that should have been brought," says Skip Brandon, a former deputy assistant director of intelligence at the FBI, "but we didn't because we couldn't make the case without introducing evidence that would compromise others."

A military tribunal, conducted even in partial secret, would remedy that dilemma. While most of its proceedings would likely be open, the tribunal could go into closed session if and when it was presented with highly sensitive or classified evidence. And, of course, the evidence wouldn't be kept secret from defendants, so their right to due process would not be infringed.

It's true that even a partially secret trial would sacrifice some of the legitimacy that transparency lends to normal American judicial proceedings. It would also lose some of its public tutelary value--both for Americans who would learn how our criminal justice system works, and for foreigners who might learn that Al Qaeda really did blow up the World Trade Center.

But those trade-offs, though serious, may be necessary: Already, in the war's early stages, some have become painfully clear. Take the case of Zacarias Moussaoui, who was arrested in August for a visa violation and is currently being held in New York's Metropolitan Correctional Center as a material witness to the September 11 attacks. A French Moroccan immigrant, Moussaoui is thought by some to be the twentieth hijacker. In August, shortly before he was arrested, he asked instructors at a Minnesota flight school to teach him how to maneuver jumbo jets in the air, but didn't want to learn how to take off and land. That same month he received $15,000 in money transfers from Germany, where Mohammed Atta and others supposedly planned the September 11 attacks. And Moussaoui reportedly once called the landlord of an apartment Atta rented in Hamburg.

Of greater importance to federal investigators, though, is reported intelligence information from French officials that Moussaoui is a bin Laden operative who has spent time at terrorist training camps in Afghanistan. The specifics supporting that information, according to some in the intelligence and law enforcement communities, are likely so sensitive that they cannot be revealed in an open courtroom. So, in the meantime, Moussaoui sits in his cell, refusing to cooperate with investigators. To bring penny-ante immigration charges against him--which could only result in his deportation--would be ludicrous. To hold him in perpetuity on material-witness grounds would be cruel. A partially secret trial is surely a far smaller infringement upon due process than keeping him in jail forever without a trial.

Indeed, the irony of a military tribunal is that the human rights alternative--given that the United States could never stomach letting likely terrorists out of jail--may be far worse. And knowing that we cannot effectively try terrorists brought back to America's shores might make the military more likely to simply kill them abroad. With some potential terrorists likely already sitting in America's jails, and no prospect for many of them to get out, the government clearly needs another option. Maybe it's the same option that Franklin Roosevelt chose almost 60 years ago.

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