Doing justice during wartime

A second concern is that using military commissions instead of conventional trials will undermine American values and the rule of law, and thus hand victory to the terrorists. This is fanciful and unfair. First, so long as the military commissions provide for a full and fair trial, they do not undermine American values or the rule of law. The Supreme Court has upheld such commissions in principle, and the level of protections provided will be much higher now than in the World War II case in which the court ruled. Second, it is silly to suggest that bin Laden is seeking to undermine the rule of law in the U.S., and would therefore gain from being tried by a military tribunal. Bin Laden is not waging a war against the United States because he objects to our notions of democracy and civil liberties, but because he has determined that killing Americans is the best way to undermine American support for the Saudi regime. American support for that regime is based on our economic and geo-strategic interests - certainly not on our values. Similarly, the individual al Qaeda terrorists who actually carry out attacks are not interested in undermining American values, but in personal glory and a shortcut to martyrdom and the afterlife. In short, we lose nothing by using tribunals, and they gain nothing by our doing so.

A third concern is that the military commissions will become "kangaroo courts" or will be perceived as such by "the world." We simply cannot be moved by such claims, to the extent that they are made. The U.S. system of justice will require full and fair hearings, which will satisfy international standards. The kangaroo courts that al Qaeda prisoners are likely to see will be for those unlucky enough not to have the benefit of a U.S. trial, forced instead to confront the likely alternative of summary execution by the Northern Alliance or southern Pashtun tribes, or summary proceedings by Islamic courts in the region. Our allies will support us in this regard. Many European states, including France, Ireland, and Italy, have special proceedings, rules of evidence, and procedures for terrorism cases, and most of the Arab states, including Egypt and Jordan, use military tribunals extensively to try suspected terrorists. Some states, like Spain, may refuse to extradite suspected al Qaeda members to the United States to face a military commission even though, as some experts have noted, the suspects would likely receive a higher level of due process before an American military commission than in a Spanish criminal court. But in these instances, the United States can suggest other alternatives in order to gain custody of particularly important individuals.

No doubt, some will rely on the use of trials by military commission as grounds for attacking the United States, and presenting evidence in secret will fortify bin Laden's propaganda; furthermore, the execution of convicted terrorists after such trials will be used to attempt to create a new generation of martyrs. But it is capitulation to such irrational forces, not the use of military tribunals, that would truly jeopardize the rule of law. While Islamic fundamentalists will passionately claim that any trial of Taliban or al Qaeda members is a rigged process, moderate Arabs will weigh the fairness of such trials against their perceptions of justice and due process as framed by their own experiences in their home countries.