November 17, 2001
Al Qaeda Should Be Tried Before the World
By ANNE-MARIE SLAUGHTER
CAMBRIDGE, Mass. -- On Tuesday President Bush signed an executive order allowing the government to try accused terrorists before military commissions rather than in federal court. No matter how tempting or expedient, trials by military commission will prove disastrous — to the war against terrorism, to the Constitution and to the rule of law.
The administration favors such trials because they will allow sensitive evidence to be presented in secret. The rules governing the conduct of military commissions would be drawn up by the Pentagon, without regard to the safeguards and guarantees provided by the Constitution. And because they are likely to be held abroad, the trials would present no domestic security risk and would undoubtedly elicit less coverage from the American media.
But if the public relations war is as important as the military war, as our allies and the administration insist, such trials would give the enemy a victory of enormous proportions. President Mohammad Khatami of Iran denounced the Sept. 11 attacks, but said he needed evidence that Osama bin Laden was responsible. Presenting evidence in secret will convince no one and will only fortify Mr. bin Laden's propaganda. And military executions of convicted terrorists after such trials will create a new generation of martyrs.
Imagine how this looks to the rest of the world: Timothy McVeigh killed 168 of his fellow citizens. Yet he was entitled to all the constitutional protections and safeguards of a federal criminal trial — held in the United States, in public. Now, when the defendants are foreigners, most likely Muslims, the administration of justice is left to an ad hoc military commission acting in secret.
In a legal sense, too, such trials will hand the terrorists an important symbolic victory. Although the United States will claim that they are "nonprivileged combatants" — that is, soldiers who have violated the laws of war — it would still be acknowledging them as combatants rather than common criminals. The trials will thus dignify terrorists as soldiers in Islam's war against America. This is exactly the wrong message to send. Al Qaeda members are international outlaws, like pirates, slave traders or torturers.
At a deeper level, such trials challenge our identity as a people. Military commissions have been used rarely in the past, principally to try spies caught behind enemy lines. Now we are proposing them as a long-term mechanism to achieve one of our principal war aims — finding and trying terrorists. But we are also, according to President Bush, fighting for the values embodied in our Constitution, against an enemy that would destroy our way of life. How then can we violate those values in the process?
If we must depart from constitutional practices, then the United States should prosecute accused terrorists before an international tribunal. The United Nations war crimes tribunal for the former Yugoslavia, for example, tries cases before a panel of three judges, not a jury. It has developed numerous procedures for presenting key evidence in secret and protecting the identities of crucial witnesses. And when Slobodan Milosevic attempted to exploit the process and grandstand for a television audience, the chief judge shut him down. In addition, it would be easier politically for countries like Pakistan, Egypt or Jordan to extradite defendants to an international tribunal than to a secret court run by the United States military.
The difference between military commissions and an international tribunal is the sanction and legitimacy of the global community. An international tribunal would demonstrate the depth of international solidarity against terrorism.
Today we have the opportunity to devise common procedures among nations around the world, far beyond the West. President Bush has said repeatedly that we must bring terrorists to justice. Trial by military commission is not justice — at least not justice as we understand it and preach it to the world. Justice is on our side. We should not forsake it.
Anne-Marie Slaughter is professor of international law at Harvard Law School.
Copyright 2001 The New York Times Company