As noted before, I find it hard to sustain the argument that military tribunals are necessary to try terrorists who might under normal circumstances have been tried in civilian courts. But there is another possibility, another scenario, in which I can imagine the government might find them quite useful …
Let’s start with a question. Does anyone know what law it would be that the military tribunals would administer? As in, the US Code administered in the federal courts? The Uniform Code of Military Justice? I’m not a lawyer. But my layman’s reading of the order tells me that this is left pretty vague and probably for the Secretary of Defense or the tribunals themselves to devise.
Section 1, subsection E says those called before military tribunals will be “tried for violations of the laws of war and other applicable laws…” The next subsection (F) says it is “not practicable to apply … the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”
Again, it sounds to me like these military tribunals are designed not just to give the government tons of leeway on the procedure end but on the law end as well.
And perhaps here’s why.
We’ve heard a lot recently about these non-Afghan fighters (Pakistanis, Chechens, Saudis, etc.) holding out in places like Kunduz – many of whom are actually linked to Al Qaeda. For present heuristic purposes at least, let’s assume these are hardcore, well-trained, well-indoctrinated terrorists – which indeed many of them are. In many cases we won’t have any evidence of specific terrorist acts these guys (for once, I think we can say ‘guys’ with some confidence) have committed. In many instances, they may well not even have committed any particular terrorist act or crime – yet.
So what to do with them? Under American law, maybe not much. One can easily imagine a situation in which it wouldn’t so much be hard to convict them in our courts, but impossible even to prosecute them, because they couldn’t be shown to have committed any definable or specific crime which our law recognizes.
This is a problem which, for better or worse, military tribunals might be quite well-equipped to handle. American law – in fact the rule of law generally – looks not at what you are but what you’ve done. Military tribunals might be useful for doing the opposite.
