Tribunals warranted, necessary in crisis

Since the attacks of Sept. 11, civil libertarians on the right and left have taken to repeating a cherished truism. It runs: "If we change our way of life and sacrifice our liberties, we let the terrorists win."

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ILIANA BOUZALI/YH

In fact, a more likely scenario of "letting the terrorists win" would be to allow them to slip through our generous criminal justice system, return to our cities, and perpetrate more murder and destruction.

To help combat this looming disaster, our government has authorized the selective use of military tribunals to try foreign nationals accused of terrorism against the United States. Such tribunals are warranted, constitutional, and just.

Liberty and security—the twin charges of American government—are distinct aims that are often at odds. This is particularly true during wartime, when our free and open life leaves us vulnerable to aggression and disorder.

In times of peace, American institutions are designed to err on the side of liberty. In particular, our criminal justice system—unlike most countries past and present—operates on the principle that it is better to free the guilty than to imprison the innocent. To this end, it affords the accused broad privileges and imposes strict limitations on the means used to collect evidence and prosecute a case.

In times of war, however, American governments invariably give special weight to security concerns—sometimes at the expense of certain liberties. This is because it is deemed preferable to limit freedom temporarily from within than to lose life and liberty forever to an outside enemy.

In past wars, America's executive branch has reserved the authority to deny a civil trial to enemies apprehended on U.S. soil. Instead, it has convened tribunals of trained military jurists. These tribunals operate on a real judicial procedure with counsel, witnesses, and evidence, and they often result in acquittals. Yet they differ from American civil law's conception of "due process" in that they are closed procedures and they admit all relevant evidence.

One argument against such tribunals— and against the wartime curtailment of liberties in general—is that they represent a "slippery slope" down which we may slide toward totalitarian rule. American history argues against this analogy, however. In past cases—such as Lincoln's suspension of habeas corpus—leaders have not used the curtailment of liberties as a means to power for its own sake. Their extra authority has been a limited provision that receded along with a specific threat to American security.

It is often remarked that military tribunals are unconstitutional. However, the Supreme Court has affirmed the right of Congress to convene them. In 1942, eight Nazi saboteurs crossed the Atlantic by submarine in a plot to blow up several New York bridges. When apprehended, they claimed the right to a civil trial. In its Ex Parte Quirin decision, the Supreme Court rejected their plea. Citing several other cases—including the hanging of a Confederate arsonist in New York City—the Court found that an "enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property" was "subject to trial and punishment by military tribunals."

Today, it is argued that al Qaeda terrorists are not technically "enemy combatants" because the U.S. has not officially declared war. Yet this semantic argument betrays the spirit of the law, as well as common sense. War has been declared on us— and the absence of a viable state against which to serve a counter-declaration does not mean that a war doesn't exist.

In the event that this war recedes, the U.S. will come under pressure to abandon military tribunals for an instrument of international law. In the interest of justice and of American security, such pressure should be resisted.

At select moments in history, nations have made great strides in international law. The trial of Osama bin Laden would not afford such an opportunity. All successful international war crimes trials have occurred after a decisive victory and the disarmament of the enemy. An international al Qaeda trial would take place with an unknown number of terrorists still armed and at large. Such a trial, burdened by negotiations between hostile and oppositional states, would engender international disputes and hinder the apprehension of terrorists. In any case, even the broadest of concessions would not convince the "Arab street" that the trial was any more legitimate than a U.S. military tribunal.

International approval should not be the standard by which terrorist trials are judged. Instead, the aim of such proceedings should be to save lives and to eliminate terrorists. Military tribunals provide the best means of accomplishing these necessities.

Schuyler Schouten is a junior in Trumbull.

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