NEWS TIP: MILITARY TRIBUNALS LACK INTERNATIONAL CREDIBILITY OF OTHER OPTIONS

President George W. Bush's recent decision to approve the use of a special military tribunal that could put accused terrorists on trial faster and in greater secrecy than an ordinary criminal court will not have the same degree of international credibility as other available forums, says Duke University's Scott Silliman.

"I'm not sure that we don't lose more than we gain in using military commissions to prosecute terrorists in this country," said Silliman, a former colonel in the U.S. Air Force who provided legal support to Air Force commanders during the Persian Gulf War. "There are several options available for prosecuting terrorists: trial in our federal district courts, as was done with those who bombed the World Trade Center in 1993 and the U.S. embassies in Kenya and Tanzania in 1998; trial in another country, since terrorism is a crime allowing for universal jurisdiction; and trial by some type of international tribunal.

"In my judgment, using military commissions in which individuals can be convicted upon a vote of two-thirds of the members of the commission, under 'relaxed' rules of evidence, will not have the same degree of international credibility as the other forums available."

Silliman, executive director of the Duke Law School's Center on Law, Ethics and National Security, said he also questions whether the president has the authority to authorize these military commissions without Congress having to amend existing legislation. "Article 21 of the Uniform Code of Military Justice is one of the very few places in our statutory law which specifically mention military commissions, and that provision talks in terms of military commissions having jurisdiction over offenses that violate the law of war," said Silliman.

"It's an open question whether the terrorist attacks upon the World Trade Center and the Pentagon on Sept. 11 actually constituted violations of the law of war, since I'm not sure we can claim that we were in a period of armed conflict at that particular time. The attacks came from a terrorist group, not a recognized state or government as was the case at Pearl Harbor. Clearly, however, the actions of the terrorists on the 11th were violations of the larger body of international law, and the Constitution gives Congress, not the president, the authority to define and punish offenses against international law. The question of the president's authority in this regard is a matter that needs to be resolved."

Duke law professor Madeline Morris said one reason why the U.S. government may want to conduct terrorism prosecutions before military tribunals is that military tribunals can be conducted in secret. "For that reason, the use of military tribunals would permit maintenance of secrecy concerning the government's intelligence gathering methods, identity of witnesses, and the like. Closed proceedings would also deny Osama bin Laden, or any other defendant, the ability to use the trial as a forum for publicizing his views."

Morris, who has worked with national and international criminal tribunals at The Hague, in Ethiopia and Rwanda, said "those advantages would be gained only at significant costs. If the United States conducted prosecutions of alleged terrorists in tribunals applying diminished levels of due process, and particularly if the proceedings were conducted in secret, the legitimacy of the proceedings, and the credibility of any convictions rendered, would undoubtedly be gravely compromised within world opinion.

"The Bush administration has not said that it has chosen to utilize military tribunals, only that it is preserving the option of doing so," Morris noted. "There are alternatives to the use of military tribunals. First, there are regular U.S. federal courts. The United States has tried terrorists in federal court before (such as those who attacked the World Trade Center the first time, in 1993), and obtained convictions, all without unduly compromising the confidentiality of our intelligence methods or sources.

There is also the possibility of trial in an international tribunal. But the creation by the U.N. Security Council of an ad hoc tribunal, like the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, "is almost certainly foreclosed by the current politics of terrorism within the U.N.," Morris said. " The Organization of the Islamic Conference, and its member states in recent debates on terrorism in the General Assembly, have made clear that, in their view, Hamas and Hezbollah are not guilty of terrorism, while the state of Israel is. Any attempt to create a U.N. sponsored ad hoc tribunal to prosecute the crimes of Sept. 11 would inevitably become mired in a conflict over the definition of terrorism and the appropriate limits and definition of the ad hoc tribunal's jurisdiction."

An international tribunal created outside the auspices of the United Nations, such as the "Coalition Court" that some have proposed, could have greater legitimacy internationally than a strictly American court. "However, it would lack the legitimacy and appearance of neutrality of a truly international court," Morris added, "and it would bring with it the complexity and constraints that inevitably attend any action by a coalition. Therefore, the forum of choice remains to be seen."

Silliman can be reached for additional comment at (919) 613-7138 or (919) 812-3799; Morris can be reached at (919) 613-7049.