The debate about President Bush's order allowing suspected terrorists to be tried by military courts has focused on questions of constitutionality. There is an additional, practical concern: The order may actually make it harder to prevent and punish terrorism.
Law enforcement is increasingly a global effort, and nowhere more so than in the fight against terrorism. Federal agents routinely exchange information with foreign police and seek to bring criminals arrested abroad to the United States for trial. But that cooperation is imperiled when foreign governments don't trust us to respect the basic rights of the people we ask them to send us. Just two weeks ago, Spain said it would not extradite eight suspected terrorists without assurances that their cases would be kept in civilian court. Thus, even without a single military trial, the order is already undermining our ability to bring terrorists to justice.
The order can also harm our ability to participate in foreign investigations of terrorism against Americans abroad, like the bombing of the Khobar Towers or the attack on the destroyer Cole. In such cases, the Federal Bureau of Investigation tries to become as involved as possible, lest a suspect be executed by the host government before our agents can question him or follow up on leads to other terrorists. But our requests will be less persuasive when we claim the right to subject foreign nationals to secret military trials and even execute them without judicial review.
Actually using military tribunals could also reduce our ability to uncover and prosecute terrorist cells operating in this country. The president's order could apply to a green-card holder who has lived in America for decades and is suspected of only tenuous ties to terrorism, but not to an American citizen who actually carries out a deadly plot for Al Qaeda — like Wadih el-Hage, who was recently convicted (in a civilian court) for bombing the American embassies in Kenya and Tanzania. This discrepancy causes at least two problems.
First, it threatens a basic tactic in fighting complex criminal organizations: prosecuting a low-level member to help develop more evidence for another case against someone higher in the organization's chain of command. Indeed, much of what law enforcement now knows about Al Qaeda was developed as a result of civilian trials and investigations. But if one suspected terrorist is tried by a military tribunal without the usual constitutional safeguards, important evidence uncovered in that trial could be suppressed on constitutional grounds in later civilian trials, thus hampering our ability to prosecute the full range of people engaged in terrorism.
Second, prosecutors have greater success when they put as many defendants on trial at the same time as possible. For two decades they have used the federal racketeering law — which was recently amended to apply in terrorism cases — to do just that. This tactic allows the prosecution to paint a fuller picture of the organization for the jury, and it helps secure convictions, especially against lower-level members who might fare better if tried alone. Since President Bush has said the order will be used sparingly, some terrorism defendants tried in civilian court could have a better chance of being acquitted because their co-conspirators are not in the courtroom with them. There is no need to take such chances.
The president argues that military tribunals will protect civilian jurors against reprisals from terrorists, but federal agents have fully protected judges, jurors and witnesses in many trials posing similar risks. Classified information is already protected from disclosure in civilian trials by the Classified Information Procedures Act. And the administration is unconvincing when it argues that evidence seized in a "war zone" would be difficult to authenticate for use in civilian courts. Federal civilian courts have a low standard for authentication — it boils down to asking, "Is it more likely than not that this evidence is what you say it is?" It's almost inconceivable that a military tribunal could allow evidence to be admitted more easily and still claim to be fair.
Our government has decades of experience and success in using civilian courts to combat organized crime, and it has successfully applied that experience to fighting terrorism. Abandoning that system for military tribunals needlessly blunts some of our society's most effective weapons in that fight.
James Orenstein is a former federal prosecutor and was associate deputy attorney general from 1999 to 2001.
