Feb. 21, 2002
Vol. 21 No. 10

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    Law professor explains use of tribunals

    By Peter Schuler
    News Office

    Though the concept seems new to many Americans, military tribunals have a long history, going back to 17th- and 18th-century England, said Jack Goldsmith, Professor in the Law School and a specialist in international law.

    Goldsmith is frequently quoted in articles on the controversial use of tribunals to prosecute prisoners from the war on terrorism. Goldsmith explained that tribunals developed as a way for wartime commanders in the field to mete out justice against enemies.

    “And tribunals are not actually courts, as they are defined in Article III of the Constitution, but rather they derive their authority, at least in part, from the President’s authority as commander in chief defined in Article II,” Goldsmith said.

    Supreme Court decisions have upheld the validity of military tribunals in the unique context of war.

    “The court has said that they can only be used in war to prosecute violations of the laws of war,” Goldsmith said. He noted that tribunals have been used in every major conflict in our history, with the exception of the Korean and Vietnam wars. George Washington used them to try spies during the Revolutionary War, and thousands of Civil War prisoners were prosecuted in military tribunals.

    In World War II, eight agents were sent to blow up U.S. production facilities and terrorize the population. Roosevelt established a military commission and eight men were tried and convicted in complete secrecy. Six of the eight ultimately were executed. The Supreme Court entertained writs of habeas corpus in which the prisoners appealed the legality of the tribunals, but the Supreme Court denied their appeals. “The court held that the tribunals were legal because they were authorized by Congressional statute, empowering Roosevelt to establish the military commission to try belligerents who had violated the laws of war,” Goldsmith said. “As long as the individual is a belligerent, they can be tried this way, even if the belligerent is an American citizen. President Bush relied on the same Congressional authorization upheld in this case by the Supreme Court.”

    Opponents of the use of tribunals in the current conflict make the distinction that there has been no declaration of war. “In my opinion, that’s not relevant,” Goldsmith said. “We’ve had hundreds of undeclared wars in which troops have been sent abroad and engaged in conflict, and only five wars in which there has been a formal declaration. Moreover, Congress did authorize the President on September 14 to use Žall force necessary against the Al Quaeda terrorists,’ which is a more formal statement of authority than many conflicts in our history.”

    A better legal argument for the tribunal critics, Goldsmith said, is whether these prisoners are actually enemy belligerents, because laws of war regulate conflicts between sovereign states and the terrorists are non-state actors. “This creates some uncertainty about how many can be brought before military commissions and what charges can be brought against them. However, the basic legality of the tribunals is not at issue,” Goldsmith said.

    He explained that there are three options to try the prisoners of the war in Afghanistan: federal district courts, where one of the hijackers is now being tried; international tribunals such as Nuremberg or The Hague; and the military tribunals. “Though there are benefits to the use of international tribunals, it is not clear they outweigh the problems. Propaganda can get out of control, which we’re seeing now with Milosevic at The Hague, and they are incredibly slow and costly,” Goldsmith said.

    Practical considerations are a major factor, as well. “If you’re a commander, you don’t want a conviction to depend upon the views of other nations, and the Al Quaeda attacked U.S. soil, which makes the rationale for a U.S. prosecution even stronger,” Goldsmith noted. “The federal courts are problematic, too, because of the need to keep certain evidence secret, the difficulty of ensuring the safety of the participants, including defendants, and the potential for trial delays, among other drawbacks.”

    Goldsmith explained that the looser procedural rules of military tribunals afford prosecutors control over the pace of the proceedings and the ability to keep certain evidence secret if it would compromise national security. The tribunals can also be closed, if necessary. However, there is still a presumption of innocence and habeas corpus review is available if the proceeding is held in the United States.

    Goldsmith said the tribunals should be viewed as one of the traditional tools the United States has provided to wartime commanders that can be used only under well-defined circumstances. “And if we’ve got thousands of prisoners in Afghanistan, how can we send them all to federal court in Manhattan? That’s not the way wars are conducted.”