WASHINGTON, Dec. 24 (UPI) -- During World War II, Churchill and Roosevelt made war on Nazism and Hitler. Destroying the Third Reich was the aim. Capturing or killing every Nazi was not. At war's end, a relatively small number of war criminals were charged and tried.
It appears that the Bush administration intends to go a step further. In responding to the September 11th attacks, it has declared war on both terrorism and terrorists. In characteristically blunt language, American Secretary of Defense Donald H. Rumsfeld said the U.S is out to "capture or kill" every al Qaeda member. Few Americans would dissent from that sentiment.
In bringing the terrorists to justice, the administration has decided to convene "military tribunals" rather than relying on the constitutionally established judiciary. The reasons presumably are for convenience and safety. These tribunals will not need to deal with constitutional protections afforded American citizens and will be kept secret including location.
Secrecy, it is argued, is vital to protect jurists and juries from retribution; to keep sources and methods for collecting evidence safe; and to make the courtrooms secure from attack. As an additional safeguard, the administration intends to try only members of al Qaeda in these tribunals.
Last week, Deputy Secretary of Defense Paul Wolfowitz and General Counsel William Haynes II testified before a Senate hearing on tribunals. Senator Joe Libermann, Al Gore's running mate on last year's losing ticket, was "reassured" by the testimony. But he and some of his colleagues were concerned by the decision to indict and try alleged al Qaeda terrorist Zacarias Moussaoui in federal court and not before one of the tribunals. Moussaoui is French-Moroccan and not a U.S. citizen or resident.
Libermann called the defendant a "big fish" in the September 11th attacks, a "war criminal," and said that from what he read in the press, Moussaoui seemed "guilty." The administration's decision to try this "big fish" in federal court, with his rights protected by the Constitution, must stand the test of time. However, the exchange raises important questions about tribunals, unintended consequences and due process.
In America, there was once presumption of innocence.
There, of course, have been many cases where protecting jurists and juries from bribes, coercion and harm was necessary. Protecting sources is also commonplace as well as keeping courthouses safe from attack. Who, for example, would have chosen to sit on a jury trying a major crime boss such as New York's John Gotti without these safeguards?
The al Qaeda restriction may prevent the U.S. from trying other non- U.S. terrorists, from the IRA, Ulster Defense League, Shinning Path Guerillas to narco drug lords, in these tribunals. But three decades ago, the Racketeer Influenced Corrupt Practices or RICO Act was passed to deal only with organized crime and criminals. RICO has since been turned against other citizens. Indeed, House Democrats wanted to indict Republican Whip Tom DeLay on RICO charges stemming from allegations of improper campaign fund raising.
Precedent for tribunals goes back to the American Revolution. But there the distinction was "spying." Nathan Hale, who had but one life to lose for his country, was hanged by the British for spying. George Washington returned the favor. Major John Andre, by all accounts an honorable British soldier, was found guilty. He asked to shot as a soldier. Washington declined. Andre was a spy. He was hanged
What distinction will apply to the al Qaeda?
An alternative is to borrow the proceedings of World War II used against alleged war criminals. In Japan, General Douglas McArthur convened these tribunals on his authority. Japanese convicted and executed in Tokyo were as dead as German war criminals executed by the tribunal in Nuremberg. However, the trials in Europe were convened by President Truman and had international jurists. That is a good model to follow.
Convening the equivalent of the Nuremberg proceedings is well advised. The defendants should be tried for committing crimes against humanity and not only for belonging to al Qaeda. The court should be international even if that means only adding a British representative. And trials should be made public and perhaps televised with blackouts whenever sensitive evidence was discussed. This will ensure the world at large can be present.
As for presumption of guilt, that would be a sad turn around for a great democracy even in the wake of such a horrendous tragedy.
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Harlan Ullman is a UPI columnist. His new book "Unfinished Business---Keeping America Safe in an Era of Global Turmoil, Terror and Temptation" is coming out in June 2002.
