Denver Bar Association
January 2005
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Trials and Military Tribunals--A Response

by Spencer Crona

Editor’s note: this article was written in response to last month’s article, Trials and Military Tribunals, by Chief Justice Elliott E. Maynard.

Chief Justice Elliott Maynard eloquently recited the tragic account of Mary Surratt and other co-conspirators convicted by military tribunal in the assassination of President Lincoln. What Chief Justice Maynard omitted to observe, in calling for vigorous debate of the issue of military tribunals, is that the issue already has been widely debated, including before the United States Supreme Court in the 2004 case of Hamdi v. Rumsfeld. As one of the original commentators proposing military tribunals for trial of accused terrorist war criminals (with Neal A. Richardson, Esq., Oklahoma City University Law Review Summer 1996), I can personally attest to
vigorous discussion of the issue in seminars, club meetings, major daily newspapers, and local and national broadcast media.

Chief Justice Maynard cannot be faulted for overlooking the pre-eminent feature of Hamdi because most of the national legal and news commentators overlooked it as well. After the decision last summer, commentators obsessed with the easy and sensational angle, characterized it as a repudiation of military detentions, in that the Court required a probable cause finding, after a meaningful adversary proceeding, as a condition precedent to detention of a suspected terrorist. It should have been evident to the government that such review would be a prerequisite for continuing detention and trial. But what the commentators missed completely was that, in comparison to the mixed votes that resulted ultimately in Hamdi’s release, a clear majority reaffirmed the validity of the seminal tribunal case in the nation’s history—not a Civil War case, but the WWII case of Ex parte Quirin. A 1942 decision, Quirin involved the trial and conviction of a group of Nazi spies and saboteurs, including one American citizen, who infiltrated with plans and equipment to blow up American war industries and kill civilians. The Quirin court upheld the convictions and constitutionality of military-tribunal trial of defendants accused of violating the laws of war.

Hamdi involved Yaser Hamdi, a Louisiana-born Saudi-American who was caught in Afghanistan, allegedly fighting with the Taliban and wielding, at the time of his capture, an assault rifle. Detained in a U.S. Navy brig, Hamdi was held indefinitely on the strength of a Pentagon affidavit account of the circumstances. His family contended he had gone to Afghanistan as a humanitarian worker.

Citing Quirin and relying on classic hornbook law on "the process due" in the circumstances, Justice O’Connor’s centrist plurality opinion explicitly endorsed military tribunals as potentially offering the kind of condensed threshold process ruled due, but not afforded, to Hamdi. In dissent, Justice Thomas also endorsed Quirin, thus the Court majority. Most recently, on Dec. 6, 2004, in the Hamden v. Rumsfeld case involving Osama bin Laden’s alleged driver, the Supreme Court refused to accelerate a challenge to trial of foreign terror suspects before military tribunals.

At this juncture, the productivity of the debate will remain in doubt in the absence of more practical experience with modern military tribunals. In that regard, three cases have begun with defendants at Guantanamo Bay, with zealous, aggressive and capable military defense counsel.

Far from being the "kangaroo courts" that detractors would like them portrayed, military tribunals are an appropriate due-process option for cases involving the most notorious suspected terrorist war-criminals. Justice Maynard wonders whether bin Laden, if apprehended, would be tried before a military tribunal. We can only pray so, lest we reprise the O.J. experience with the charismatic nuclear terrorist "wanna-be" who already is implicated in the mass murder of thousands of civilian non-combatants in the United States, Africa and Afghanistan.

It is acknowledged that the existence of war is a condition precedent to a war crime. Suffice it here to say that, today, war legally can exist on bases ranging from the obvious—such as when a group hijacks commercial airliners and drives them into office buildings—to the arcane—such as a proposal for a congressional authorization that complies with all the criteria of the 1973 War Powers statute.

In the debate Justice Maynard desires, we also should disdain the distraction of political distortion. With a passion similar to extremists on the right, absolutists of the left prefer to throw military tribunals onto the same suppression and overreaching pile with the Patriot Act, recent federal-agent detentions and intimidations of immigrants and dissenters, the outrages of Abu Grahib, the misinformation and misrepresentation that led us into Iraq quagmire and even the reprehensible Korematsu decisions upholding the WWII Japanese-American detention camps. This straw-man, guilt-by-association attack is distortionist rhetoric and unfounded in the law. Military tribunals offer a legally- and historically-appropriate forum for fair and secure adjudication of terrorist war crimes that satisfies the basic requisites of due process. Moreover, to augment prevention of the next attack (likely nuclear), the charge of attempting a war crime is triable before military tribunals, with an attendant risk of penalty just as severe as for the completed act.

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