No such tribunals have been set up yet, nor have details for their operation been worked out. At the moment, therefore, they are an option, one that, according to the Nov. 21 issue of The Wall Street Journal, has already stirred debate within branches of the federal government itself.
Zacarias Moussaoui, a Moroccan arrested on Aug. 17 on immigration charges, is currently being held in New York City on suspicion of having been closely linked to the Sept. 11 hijackers. It is reported that some top officials in the administration favor trying Mr. Moussaoui in a military court, where evidence can be presented in secret to avoid revealing particulars of the antiterrorist struggle. But some federal prosecutors think the trial could be effectively conducted in a civilian court without either compromising U.S. intelligence or creating the impression that the defendant received something less than due process.
Bemused citizens may wonder why military courts should ever be needed. Doesn’t the United States have multileveled structures of state and federal courts? It does, but a bit of history is enlightening here. For a decade after the Civil War, much of the former Confederacy was under martial law, with military tribunals supplanting civil courts. That was because the North was convinced that the state courts in the South lacked procedures that would ensure justice for African Americans.
The South, of course, detested this arrangement and bargained its way out after the chaotic presidential election of 1876. Moderate Southern Democrats accepted the contested victory of Rutherford B. Hayes, a Republican, and he in turn withdrew the federal troops that still occupied parts of the South. But the Reconstruction era left behind an illustration of a principle that Mr. Bush may now have in mind: military courts are established when and where civil courts cannot function.
The president presumably foresees circumstances when this would be the case. If terrorists are captured in Afghanistan or Pakistan, it might seem advisable to try them on the spot. The option for a military tribunal might then be exercised, because the United States has no civilian courts in those countries and does have reason to doubt the adequacy of the local judicial systems. If foreign terrorists are tried in the United States, security considerations might seem to require the secret sessions that are allowed by military tribunals but prohibited in civil courts.
Those who defend Mr. Bush’s executive order argue that it is a prudent response to a global terrorist network. Those who criticize the directive argue that it is unnecessary, because U.S. federal courts could conduct these trials circumspectly and expeditiously while meeting fair standards.
But surely both sides would agree that the success of the campaign against terrorism is far more important than the question of how Osama bin Laden and his associates are to be dealt with once they have been rendered harmless. While they are waiting for that success, the nations making up the antiterrorist coalition should seriously explore the possibility of having terrorists tried by an international tribunal like the one that conducted the 1945-46 Nuremberg trials of former Nazi leaders.
Meanwhile, here is some advice for the president and some for his critics. In whatever courts they are eventually tried, members of Al Qaeda will be seen by many Muslims, particularly those in Arab nations, as martyrs. All the same, the United States must try hard not to contribute to that impression. Mr. Bush must make the strongest possible case. He must do his best to convince both Americans and their allies that whatever Mr. bin Laden’s degree of direct responsibility for the Sept. 11 attacks, he was at least an accomplice.
Those who oppose the executive order would be wise to avoid giving the impression that the only alternatives are national security on the one hand and respect for individual rights on the other. If the choice is presented in those terms to the legislature, the courts or the American people as a whole, national security wins hands down every time.