A FULL AND FAIR TRIAL WILL BE PROVIDED As in past cases, the actual composition and procedures of these tribunals—which can sit either in the United States or elsewhere-are left to be determined by the Secretary of Defense and military commanders subordinate to the President, subject however to the provision of a "full and fair trial," with conviction and sentencing upon the concurrence of two-thirds of the tribunal or commission present. So while the rules and regulations are yet to come, we can get some inkling of their content by examining those promulgated by military commanders, such as Dwight Eisenhower in the European theater of WWII and Douglas MacArthur in the Pacific. While there are subtle differences, both commanders specified greater evidentiary latitude, including allowing secondary evidence where witnesses are unavailable and copies of documents and confessions to be admitted without undue delay or the kind of elaborate foundations required in cases before judges and juries, rather than military personnel. Is all this just an elaborate denial of due process and sham proceeding? Hardly, the use of military tribunals was commonplace in World War II and those appearing before them were both exonerated and executed. The same is likely now. The "fair trial" mandated by the Bush order is also more likely to become reality simply because the discipline of legally-trained military personnel sitting in judgment has a better chance of being humanly evenhanded than finding somewhere in the universe a jury capable of being dispassionate about the use of human weapons of mass destruction against the Trade towers and Pentagon. Professor Tribe and I agree when he concedes that due process of law "both linguistically and historically permits trying unlawful combatants for violations of the laws of war, without a jury or many of the other safeguards of the Bill of Rights, provided each accused may hear the case against him and receives a fair opportunity to contest it through competent counsel." Most importantly, military tribunals have the virtue of allowing evidence to be considered without necessitating the disclosure of classified information in open court or the identification of intelligence personnel and sources. And here the point of military tribunals, and their appropriateness, becomes plain. These bodies, unlike regular Article III criminal justice system, are not primarily for purposes of punishment. They are extensions of the military campaign and the efforts of the President to "protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks." Perhaps, that is why the creation of these tribunals in war time for the trial of war crimes is so well fixed and unassailable in constitutional precedent. The Supreme Court does not sit in ultimate review of the tribunal's work beyond assuring itself that the commission was properly empaneled. It is also why the jurisdiction of these bodies depends upon Congress' war power and the individual who, with how ever much reluctance he must surely have, acts as our Commander in chief. Military tribunals are a necessary part of the war on terrorism, but they are not the only part. Attorney General Ashcroft has received from Congress enhanced law enforcement authority to combat terrorist organizations and those who harbor or finance them. Necessary questions were asked, and in my judgment, sufficiently_answered as to whether these proposals curtail our civil liberties. They do not. Congress' prudent passage of the recent anti-terrorism legislation is well aimed at reconciling warrant and surveillance authority with global communications and detaining and removing those entering the United States for the purpose of causing civilian deaths through weapons of mass destruction. Unless construed well beyond their intended text and context, they should have no effect on the constitutionally protected speech and association of American citizens. But it is surely now unfair and incredulous to harangue Attorney General Ashcroft for advising the President that should the new anti-terrorism legislation lead to the apprehension of bin Laden and his confederates that a civilian trial as if he were a common thief or murderer-times, of course, several thousand-would be appropriate. As sensible as it may be to expand warrant authority in the context of terrorist emergency to include wireless and Internet communication and to raise the penalties for the knowing possession of biological toxins not reasonably necessary for peaceful purposes, to assume that the terrorist organizations responsible for September 11 should be tried in federal court is to confuse war and the crimes of war. Terrorists are neither soldiers nor garden variety criminals, meriting federal indictment, they are war criminals. As the Afghan bombing has proceeded, the nature of the military operations needed to root out these architects of war crime is expensive and prolonged. Of course, it is also open to doubt whether any of the malefactors will be taken alive. But as suming some will, it is far healthier for the rule of law that the President has indicated their ultimate destination and method of punishment in advance. My former Justice Department colleague and U.S. Attorney General, William Barr, has been quoted as saying "[t]here's a basic tension as to whether to treat this as a law enforcement issue or a national security/military issue." He, of course, is right—that is the heart of the issue. Mr. Barr suggests that we "[f]ind these people and demolish them." That may happen on the field of battle, but if it does not and we apprehend them instead, their destination should be a military tribunal, not the U.S. District Court. By definition, terrorism is aimed at indiscriminately killing civilian innocents and destroying civilian property. Professor Tribe may think that definition imprecise, but I doubt that the citizens of New York who now live without mothers and fathers or sons and daughters share in his belief. Respectfully, whatever imprecision may exist under the order does not render it, to use Professor Tribe's words, "riddled with flaws," but merely subject to the reasonable construction historically accorded President's in the tactical decision making that accompanies a war effort. EVEN OPPONENTS CONCEDE THE UNSUITABILITY OF REGULAR COURTS Professor Tribe has sagaciously observed, however, that even if regular criminal proceedings might be stretched to accommodate the trial of unlawful belligerents, "it does not follow that they are best-suited for the task. . . .[S]uch nonmilitary trials grant an extended pulpit to an accused bent on claiming martyrdom and capable of stirring others to further acts of international terrorism." Professor Tribe's important observation reminds us, as President Bush's military order does, that the tribunals are only partially to punish, they are also to prevent "the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States." Yes, our objective is to punish those who took our brothers and sisters-or in my case a faculty colleague killed in the Pentagon planebut it is also to root out and deter the instigators of further harm. In battle, this is best accomplished by a partial or targeted declaration of war, not against Afghanistan, itself, but the terrorists resident there, or anywhere. Tactically, in the present war, the battle necessarily extends to the disposition of those who are apprehended and suspected of war crime. Are military tribunals then a violation of civil liberties? No, simply a recognition of well established precedent. Military belligerents violating the international laws of war are properly tried before a panel of military officers. Such military commissions received extensive use in the Civil War, and were affirmed by the Supreme Court in the famous World War II decision sentencing General Tomoyuki Yamashita to hang for the brutal atrocities he ordered against civilians in the Philippines. When Yamishita petitioned the Court for habeas corpus, the Court rebuffed him stating that the war power delegated by Congress includes administering a system of military justice for the trial and punishment of those combatants who have committed war crimes. No case contradicts this. The Civil War precedent, Ex parte Milligan that nominally questions the availability of military tribunals where civilian courts remain open, as Professor Tribe noted, was later confined to its unique domestic insurgency facts, and specifically the fact that Milligan was not-in international parlance-an "unlawful belligerent." Terrorists clearly are. FARFETCHED HYPOTHETICALS SHOULD NOT DISTRACT US FROM THE SERIOUS TASKS AT HAND Professor Tribe, and others, argue with various farfetched hypotheticals that the President's order might be misapplied. Aside from whether the President deserves in this time of emergency greater deference, it is simply not sound constitutional practice to invalidate executive action that has a completely constitutional range of application because it might be misapplied under a strained application of its text. Professor Tribe wants the Congress to step in, but it is not clear to what end. Indeed, given the text of the order and the President's full intention to apply it to the leadership of al Qaida or its terrorist equivalent, there is nothing to correct or rectify. Instead, opponents of the order proceed to mix issues by broadly complaining of Justice Department initiatives to interrogate those who have recently traveled to or from terrorist nations and fit other criteria or to monitor the conversations of those already convicted of terrorism and in jail or awaiting trial for espionage. THE LAWFULNESS OF THE DETENTION POLICY It is appropriate in concluding, therefore, to briefly examine the Attorney General's actions. First, as to detentions, it is very clear that the Attorney General is holding individuals who are either violating immigration law or needed as a material witness. In the former case, existing immigration procedures will be employed to dispose of the cases. In the second, Title .18 and Supreme Court precedent affirm the right to detain material witnesses who have knowledge of facts closely connected to a crime and whose testimony would likely be relevant and highly probative in a criminal proceeding. In this instance, the Attorney General is doing little more than applying well established statutory law that allows detention where a judicial officer determines that it may become impractical to secure the presence of the person by subpoena. 18 U.S. C. 1844. As Justice Jackson stated long ago for the Court, "the duty to disclose knowledge of crime.. is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness." Stein v. New York, 346 U.S. 156, 184 (1953). THE LAWFULNESS OF THE REQUEST FOR INFORMATION A fortiori if a citizen can be detained to disclose knowledge of a crime as a duty of citizenship, noncitizens here on immigration visas can certainly be asked to voluntarily answer questions that may lead to the apprehension of terrorists. As the Attorney General has repeatedly emphasized these individual have not been singled out for reasons of animus. They are being sought for reasons of common sense police work related to recent (with the last two years) connection with terrorist locations and their arrival on student, tourist and business visas similar to those employed by the terrorists of September 11. As the FBI noted almost three years prior to September 11, "we have a problem with Islamic terrorism. . . .If we had a problem with Latvian terrorism, we'd focus on Latvians." John Mintz and Michael Grunwald, FBI Terror Probe Focuses on U.S. Muslims," Wash. Post, October 31, 1998 at A1. There is nothing unconstitutional about focusing police work on the likeliest suspects. Indeed., it is arguable that the factual profile being employed by the Attorney General in any given case with a few additional facts could support the reasonable suspicion standard allowing not just voluntary, but involuntary, detention and questioning. The Attorney General with considerable restraint has not pressed this position. Rather, he has taken a narrow view of his authority that coincides fully with precedent, such as the Supreme Court's recent denial of review in Brown v. Oneta (2001). Police questioning based upon race is not unconstitutional so long as it is based on a race-neutral policy of obtaining a description of the assailant and seeking out persons who match it. Even putting aside the substantial questions of whether the Fourth Amendment applies to noncitizens in the same fashion as it does to citizens-a proposition that is highly doubtful in light of the Supreme Court's plurality decision in United States v. Verdugo-Urquidez. (1990) (indicating that aliens do not necessarily qualify as "the people" under the Fourth Amendment) the Attorney General is well authorized to undertake the investigation that he has. PRISONERS HAVE NO PRIVILEGE TO PLOT FUTURE TERRORIST ACTIVITY FROM PRISON Turning lastly to the monitoring of prisoner communications, the Attorney General has prudently limited this practice to 12 convicted terrorists and four people being held on espionage charges. In may come as a surprise to some, but a prisoner has no legal right to privacy. Prison officials regularly screen mail and monitor visits of those incarcerated. True, the law recognizes various privileges-such as attorney-client but conversations are privileged only if they legitimately fall within the scope of the relationship. A conversation with one's attorney that facilitates new acts of terrorism is not privileged. The Justice Department policy is well-crafted to observe these constitutional strictures. First, the affected prisoners are notified in advance of the monitoring. Second, a “taint team” uninvolved in the prosecution of the affected prisoner will monitor and either discard privileged material related to trial preparation and the like or seek disclosure but only (barring emergency) with the approval of a federal judge. Again, even assuming that the Fifth and Sixth Amendments (privilege against self-incrimination and fair trial) apply to noncitizens in the same way as citizens, there is no constitutional violation unless the prosecution actually and intentionally obtains confidential information pertaining to trial preparation and defense strategy and that information is used to the defendant's substantial detriment. As the Supreme Court has long held intrusions into the attorney-client relationship are not per se unconstitutional. There must be a concrete showing of harm to the defendant and benefit to the State. Weathersford v. Bursey (1977). The Attorney General has established a procedure to monitor conversations not to harm criminal defendants, but to ensure the safety and security of innocent American citizens from future terrorist attack. That is not now, nor should it ever be, unconstitutional. I hope this opinion is useful to the work of the committee, and I thank you for the opportunity to present it to you for your deliberations. Article by Harold Hongju Koh, The New York Times, November 23, 2001 WE HAVE THE RIGHT COURTS FOR BIN LADEN NEW HAVEN-If we should capture Osama bin Laden or his accomplices in the days ahead, where should we try them? Two unsound proposals have recently emerged. The first, and by far more dangerous, is already law: the president's misguided and much criticized order authorizing secret trials before an American military commission. The second, more benign approach, offered by prominent international lawyers, is to try terrorists before an as yet uncreated international tribunal. Both options are wrong because both rest on the same faulty assumption: that our own, federal courts cannot give full, fair and swift justice in such a case. If we want to show the world our commitment to the very rule of law that the terrorists sought to undermine, why not try mass murderers who kill American citizens on American soil in American courts? I hope never to see Osama bin Laden alive in the dock. As Mohammed Atefs recent death shows, international law entitles us to redress the killing of thousands by direct armed attack upon Osama bin Laden and other Al Qaeda perpetrators responsible for the attacks of Sept. 11. But if they surrender, we should not lynch them, but rather try them, to promote values that must stand higher than vengeance: to hold them accountable for their crimes against humanity, to tell the world the true facts of those crimes and to demonstrate that civilized societies can provide justice for even the most heinous outlaws. Israel tried Adolf Eichmann. We can try Osama bin Laden, and without revealing secret information, making him a martyr or violating our own principles. President Bush's order for secret military trials undermines these values. I have long supported international adjudication, but that option makes little sense here. As recent efforts to try international crimes in Cambodia and Sierra Leone show, building new tribunals from scratch is slow and expensive and requires arduous negotiations. Geopolitical concerns in this case would predominate, and the impartiality of the tribunal would inevitably be questioned by some in the Muslim world. These tribunals are preferable only when there is no functioning court that could fairly and efficiently try the case, as was the situation in the former Yugoslavia and in Rwanda. American courts have tried international criminals who have violated the law of nations including pirates and slave traders-since the beginning of the nation. We have convicted hijackers, terrorists and drug smugglers (including Panama's Manuel Noriega, who surrendered to American soldiers after extended military operations). Osama bin Laden and his top aides have already been indicted in federal court. We have successfully tried and convicted Al Qaeda members and associates for attempting to blow up the World Trade Center and planning the August 1998 bombings of the American embassies in Tanzania and Kenya. With venue changes, careful security and intensive investigative efforts, Timothy McVeigh was tried, convicted and sentenced for a comparable terrorist act. As for protecting classified information, existing law gives prosecutors ample authority to prevent such information from being compromised in trial. If any judicial system in the world can handle a case like this fairly, efficiently and openly, it is ours. If four or 400 Americans had died at the World Trade Center and the perpetrators had been caught, no one would suggest that we try the murderers anywhere but in American courts. No country with a well functioning judicial system should hide its justice behind military commissions or allow adjudication of the killing of nearly 4,000 residents by an external tribunal. Why not show the world that American courts can give universal justice? Harold Hongju Koh, a professor of international law at Yale, was assistant secretary of state for human rights in the Clinton administration. 81-998 D-16 The Honorable Patrick J. Leahy Dear Senator Leahy: We, the undersigned law professors and lawyers, write to express our concern about the November 13, 2001, Military Order, issued by President Bush and directing the Department of Defense to establish military commissions to decide the guilt of noncitizens suspected of involvement in terrorist activities. The United States has a constitutional court system of which we are rightly proud, Time and again, it has shown itself able to adapt to complex and novel problems, both criminal and civil. Its functioning is a worldwide emblem of the workings of justice in a democratic society. In contrast, the Order authorizes the Department of Defense to create institutions in which we can have no confidence. We understand the sense of crisis that pervades the nation. We appreciate and share both the sadness and the anger. But we must not let the attack of September 11, 2001 lead us to sacrifice our constitutional values and abandon our commitment to the rule of law. In our judgment, the untested institutions contemplated by the Order are legally deficient, unnecessary, and unwise. In this brief statement, we outline only a few examples of the serious constitutional questions this Order raises: • The Order undermines the tradition of the Separation of Powers. Article I of the Constitution provides that the Congress, not the President, has the power to "define and punish... Offenses against the Law of Nations." The Order, in contrast, lodges that power in the Secretary of Defense, acting at the direction of the President and without Congressional approval. • The Order does not comport with either constitutional or international standards of due process. The President's proposal permits indefinite detention, secret trials, and no appeals. · The text of the Order allows the Executive to violate the United States' binding treaty obligations. The International Covenant on Civil and Political Rights, ratified by the United States in 1992, obligates States Parties to protect the due process rights of all persons subject to any criminal proceeding. The third Geneva Convention of 1949, ratified by the United States in 1955, requires that every prisoner of war have a meaningful right to appeal a sentence or a conviction. Under Article VI of the Constitution, these obligations are the "supreme Law of the Land" and cannot be superseded by a unilateral Presidential Order.. No court has upheld unilateral action by the Executive that provided for as dramatic a departure from constitutional norms as does this Order. While in 1942 the Supreme |