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Should Terrorists Be Tried By Military Tribunals? - 2001-11-14

If Osama bin Laden is captured by U.S. forces in Afghanistan, he could face a special military tribunal under an order signed into law by President Bush. But legal experts are divided on the wisdom of using military tribunals to try non-citizens charged with terrorist acts.

The new presidential order gives the Bush Administration the option of using military tribunals to try suspected terrorists instead of the civilian court system.

Under the order, the president would determine which accused terrorists qualify to be tried by a military tribunal. Defense Secretary Donald Rumsfeld would appoint the tribunals and set their rules and procedures. The process would not allow for judicial appeal.

Among those who support the president's directive is Douglas Kmiec, Dean of the Catholic University Law School here in Washington. "These people [suspected terrorists] are dealt with historically either on the field of battle or, should they surrender, in the context of military tribunals," he said. "So there is an inherent appropriateness or dignity, as it were, of treating unlawful belligerents, which is what terrorists are, in this fashion."

Douglas Kmiec also says there are some practical legal advantages to trying alleged terrorists by military tribunal. "Rules of evidence are more pragmatic," he said. "They are designed to ferret out the truth. They are not designed to maintain all of the niceties and nuances of constitutional guarantees that again apply specifically to ordinary criminal defendants in the context of a peaceful society. So the standard of proof would in all likelihood be less rather than beyond a reasonable doubt."

The tribunals could also be held in secret. That would allow the administration to withhold sensitive intelligence information from the public that could be used to convict terrorists.

But there is division among legal scholars as to the wisdom of using military tribunals to try alleged terrorists.

Jonathan Turley is law professor at George Washington University Law School here in Washington. He expects legal challenges to any convictions stemming from military tribunals and he says secretive proceedings at the tribunals could backfire on the Bush Administration. "This ad hoc approach is going to undermine the legitimacy of any future proceedings," he said. "If we prevail in this war against terrorism, it will not be because of our military might. It will be because of our system of justice, because of our values. This tribunal really undermines our ability to prevail in that sense."

Some legal experts argue that it would be better to try someone like Osama bin Laden in the U.S. federal court system. Anthony Arend is a law professor at Georgetown University. "One of the criticisms here is that he [bin Laden] would not get a fair trial here in the United States," said Anthony Arend. "And my feeling is that given the circumstances, he is not necessarily inclined to get the ideal trial of people not knowing who he was or anything that had happened in this conflict anywhere in the world. And my feeling is that we have enough checks and balances under our U.S. federal court system that he would be able to get a fair trial under those circumstances. So that would be my preference."

Military tribunals have been used in the past, though rarely. Six Nazi saboteurs were executed during World War II after having been convicted in a secret military trial ordered by President Franklin Roosevelt.

And in 1865, in the wake of President Abraham Lincoln's assassination, a special military court convicted eight people of taking part in the conspiracy to kill the president. Four of them were hanged.