Doing justice during wartime

Policy Review, Feb/Mar 2002 by Sofaer, Abraham D, Williams, Paul R

The U.S. military rapidly responded to the new policy by engaging in a comprehensive use of force intended to bring about a victory and to end America's vulnerability to al Qaeda. To accomplish this objective, the military developed new doctrines, deployed advanced technological resources, embraced the extensive use of special forces, and selectively relied on assistance offered by our allies without compromising American leadership in the campaign. The intelligence community is also undertaking a critical reassessment of its capabilities and intelligence assets and is retooling to better meet the threat posed by al Qaeda.

Unlike the executive branch departments, the judicial system cannot rapidly retool or evolve to accommodate the new needs of terror war. The American domestic criminal system was designed primarily to protect civil liberties while effectively prosecuting those responsible for murder and other domestic crimes. The system was never intended or designed to perform the judicial roles related to terror war or for that matter to prevent fundamentalist terrorism. The creation of military commissions is thus an effort by the Bush administration to provide a method for trying non-citizen terrorists that corresponds to the shift from fighting terrorism with conventional law enforcement to serious foreign military engagement.

Just as a single cruise missile attack against near-empty training camps constituted ineffective, pinprick engagement, the use of the domestic criminal system to try all terrorist prisoners would amount to ineffective, pinprick justice. The domestic criminal justice system, by itself, is simply unable to serve as an effective tool in dealing with the judicial fallout of terror war. Even the most successful prosecutor of terrorists, U.S. Attorney Mary Jo White, has recognized that, with proper safeguards, military commissions "could be preferable to conventional trials in a time of war," as she told the New York Times.

The reasons for the preference for military commissions are numerous. First, and most important, the acts of terror committed by al Qaeda against civilians are not the types of crimes our domestic system was designed to prosecute; rather, as President Bush characterized them, they are war crimes. Sen. Joseph Lieberman, writing in the Washington Post January 1, put it this way: "The attacks of Sept. 11i were acts of war. Because they were carried out against defenseless civilians by terrorists posing as noncombatants using concealed weapons, the perpetrators were guilty of heinous war crimes, not simple domestic crimes."

Second, the domestic system has proven unable to deter and rarely able even to punish those responsible for terror crimes. In the cases of the Yemen hotel bombing, the attack on the Saudi National Guard, the 1996 Khobar Towers attack, the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the U.S.S. Cole attack in 2000, the U.S. either has been unable to prosecute any responsible party or has prosecuted only a handful of low-- level culprits and ideological supporters.