Terrorism’s primary objective is to createterror. It accomplishes this, and is differ-

ent from our traditional view of war, in thatit is usually directed against civilians, is ran-dom and scattered geographically, and is notconducted by a nation/state, althoughnation/states may provide financing, equip-ment and refuge for terrorists and terroristorganizations. It is a criminal activity inwhich criminals may voluntarily kill them-selves in the act of committing their crimes.Terrorists cannot be the object of negotia-tions, diplomatic exchanges or treaties.

Terrorism is of increasing concern as the knowl-edge and possibly the capability for massdestruction and death are widely available glob-ally. Thus the majority of people who are notcriminals and who value and cherish life, peaceand security are faced with the need to preventa form of international criminal activity thatmay pose a threat to their lives. That need hasalready created a tension with accepted domes-tic and international legal principles.

The United States is holding approxi-mately 600 prisoners at Guantanamo Bay,Cuba and perhaps more in Afghanistan. Ithas interned suspected terrorists in theUnited States. It is not clear who most ofthese prisoners are, or the grounds onwhich they are being held. To the extentthat many of them may be members of theTaliban, they would appear to be prisonersof war, and according to the GenevaConventions should be “released and repa-triated without delay after the cessation ofactive hostilities.”1 Assuming that we wereinvolved in a war in Afghanistan, while“mopping up” operations continue, itwould appear that “active hostilities” haveterminated. The Taliban government hasbeen defeated and a new governmentinstalled. Prisoners of war may continue tobe detained if they are charged with warcrimes or other offenses.2 However as ofAugust 2002, no such charges have been brought.

Assuming that many of the detaineeswill be charged with a crime, the ques-tion remains what forum or fora will beused to try them. There are four possibil-ities: military tribunals, military courtmartials, the federal court system or aninternational tribunal.

The Geneva Conventions provide thatprisoners of war accused of war crimes andother offenses must be tried before thesame courts and with the same procedures(including appeals) as members of thearmed forces of the detaining power.3 If amember of the U.S. armed forces is court-marshaled, there is a right of appeal to theUnited States Court of Appeals for theArmed Forces – a civilian court. It wouldappear that if members of the Taliban armyare to be tried, they should be tried by amilitary courts martial.

A “Rule of Law” – the application ofa predictable, fair and evenly appliedbody of rules to govern the behavior of asociety – is a primary building block ofcivilization. Critical aspects of such a“Rule of Law” are the definition of crimi-nal activity and the trial and treatment ofthose accused of criminality. In theUnited States the fundamentals of suchtreatment and trial have evolved since itsfounding. Many were incorporated in theU.S. Constitution, particularly the Fifthand Sixth Amendments, over two hun-dred years ago.

Other provisions of the Constitutionapply to criminal proceedings, such as theEighth Amendment’s prohibition against“cruel and unusual punishment.” TheseConstitutional provisions regarding thetrial and treatment of those accused ofcrime are supplemented by state statutes,and many aspects of well establishedAnglo-American common law, such asthose regarding the admissibility of evi-dence and the right of appeal.4

More recently, basic concepts of fair-ness in the treatment of prisoners takenduring armed conflict and the trial andtreatment of criminals who have violatedinternational norms of conduct havebeen addressed on an international level,incorporated in various treaties and con-

ventions and have resulted in the cre-ation of international tribunals.5

Notwithstanding such Constitutional,statutory and common law provisions toprotect the accused, the criminal justicesystem has many flaws, and its implemen-tation has been criticized.6 Since 1973, 100men duly convicted and sentenced to deathhave been exonerated, recently through theuse of DNA evidence.7

The Supreme Court has ruled thatthe rights of an accused in the UnitedStates are granted only to citizens.8

However, some constitutional protec-tions, including Fourteenth Amendmentdue process, apply to resident aliens.9 Thisis probably why the Afghanistan prisonersare being held in Guantanamo, Cuba,rather than in the United States.

The attacks of September 11, 2001had immediate human and economicimpacts. They have resulted in shifts inthe foreign and domestic policies of manynations and will also have long-termeffects on international and domestic law.

On November 13, 2001, PresidentGeorge W. Bush issued an executiveorder entitled “Detention, Treatment andTrial of Certain Non-Citizens in the WarAgainst Terrorism.”10 The order madeclear that it was in response to the terror-ist attacks on the World Trade Center inNew York City, and on the Pentagon inWashington, D.C. A primary finding wasthat such attacks “… created a state ofarmed conflict that requires the use of theUnited States Armed Forces.” Its purposewas to provide for the trial of certainindividuals “… for violations of the lawsof war and other applicable laws by military tribunals.”11

The use of military tribunals, whilerare, is not unique. Similar commissionswere used to try British Major Andre dur-ing the American Revolution and thoseinvolved in President Lincoln’s assassina-tion after the Civil War. The most recentuse was 60 years ago by PresidentFranklin Roosevelt for a group of Germansaboteurs who were apprehended afterlanding on Long Island from a Germansubmarine. The action was upheld in

17

Terrorism and the Law: Military TribunalsWilliam R. GinsbergProfessorSchool of Law

1942 by the U.S. Supreme Court.12 Itshould be noted, however, that the 1942executive order promulgated byPresident Roosevelt was made during awar declared by the United StatesCongress and applied only to personswho were acting for “any nation at warwith the United States” — a limitationnot contained in President Bush’s order.

Because the use of military tribunalsraises fundamental legal and practicalissues, President Bush’s order was imme-diately controversial and stimulated considerable discussion and opposition.It was rationalized on several grounds,among them that evidence would, inmost instances, come from intelligencesources that could be compromised ifdisclosed, and that included disclosure tothe defendants against whom the evi-dence would be used.

The legal rationale for the use of mil-itary tribunals is that “an extraordinaryemergency exists for national defense”and “… that it is not practicable to apply– the principles of law and the rules ofevidence generally recognized in the trialof criminal cases” in federal courts.13 Thepresident’s order applies to any non-citi-zen who the president determines “is orwas a member of al Queda” or “hasengaged in, aided or abetted, or conspiredto commit acts of international terrorism,or acts in preparation therefore …” or hasknowingly harbored such an individual.14

There is no definition of “acts of inter-national terrorism” or any definition of orfurther reference to “al Queda.” It is esti-mated that there are approximately 20million non-citizens who live in theUnited States15—and approximately 6.2billion who do not.16 Any individual iden-tified by the president in accordance withthe order is put under the jurisdiction ofthe secretary of defense who is given theauthority to detain such an individual inor outside the United States.17

The secretary of defense is givenauthority to try the individuals designat-ed by the president subject to the order.The trial is to be by a military commis-sion (the term is used interchangeablywith military tribunal), and the individ-ual may be punished “with the penaltiesprovided under applicable law, includinglife imprisonment or death.”18

The secretary of defense is chargedwith issuing orders and regulations forthe appointment of the necessary com-missions and the conduct of the trials,which are to include a full and fair trial,with the military commission sitting asthe triers of both fact and law. Such evi-dence is to be admitted as would, in theopinion of the presiding officer, have pro-bative value to a reasonable person.Access to evidence and its admission, aswell as the access to and closure of pro-ceedings would be in a manner consistentwith the protection of classified or classi-fiable information.

Conviction and sentencing wouldrequire a two-thirds vote of the membersof the tribunal present at the time of thevote (a majority being present) and therecord of the trial, including any convic-tion or sentence, would be submitted forreview and final decision by the presidentor by the secretary of defense. Finally, thepresident’s order provides that military tri-bunals shall have exclusive jurisdiction ofindividuals subject to the order and thatthere shall be no other remedy or right ofappeal from an order of the tribunal.19

It is apparent that considerable dis-cretion in framing the work of the mili-tary tribunals was left to the Secretary ofDefense Donald Rumsfeld. The rules thathe promulgated on March 21, 2002, werea major step in creating the format for a

fair trial. Amid other safeguards they pro-vided the accused with a presumption ofinnocence and various rights related tothe conduct of the defense20, the right tochoose counsel21, to see the prosecution’sevidence22, to have a public trial (subjectto the protection of classified informa-tion)23, and to remain silent with noadverse inference to be drawn.24 In addi-tion, the prosecution must prove guiltbeyond a reasonable doubt.25 Decisionsto impose the death penalty must beimposed by a seven member commissionand must be unanimous26, and a “notguilty” verdict cannot be changed.27 Itshould be noted, however, that a guiltyverdict (other than in a death penaltycase) only requires a two-thirds vote.28

While the Department of Defenseorder resolved many of the issues thatwere the subject of controversy in thepresident’s order and go far toward includ-ing the elements of a fair trial, some sub-stantial issues remain. The tribunal will becomposed of military officers appointedby the secretary of defense or hisdesignee.29 The members may find it diffi-cult to be objective when judging a personwhose purpose was to kill their militarycomrades, even when such a wartime goalmay be normal and legal.

Although defense counsel will beassigned, that counsel will be a militaryofficer. The defendant may select civilian

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counsel of his choice (providing that cer-tain criteria are met), but no provision ismade for the payment of such counsel.30

The most difficult issue is clearly theneed to protect the sources of evidence.Thus the presiding officer determines whatevidence may be admitted and has theauthority to close any portion of (or theentire) proceedings. Grounds for closureinclude the protection of information “andother national security interests.” Theaccused and civilian defense counsel maybe excluded from the proceedings, and ifexcluded may not be informed of any infor-mation presented in the closed session.31

Witnesses are subject to cross exami-nation. However, the witness may not bephysically present, may be heard in a closedproceeding, and may use a pseudonym.32 Ifthe proceeding is closed, civilian defensecounsel will be unable to cross examine.Almost any evidence may be admitted,whether sworn or unsworn.33

While there is no appeal from a deci-sion of a military tribunal, the regulationsprovide for the establishment of a “reviewpanel” of three military officers to reviewtrial records and deliberate “in closed con-ference.” The panel must either forwardthe case to the secretary of defense with its

recommendation or “return the case to theappointing authority for further proceed-ings” if a majority of the panel has a “defi-nite and firm conviction that a materialerror of law occurred.”34 The secretary ofdefense can also return the case for furtherproceedings or forward it to the presidentwith a recommendation.35

In many respects the failure of theUnited States to bring charges againstthose it is holding (both outside andinside the United States) is the most trou-blesome aspect of the situation. As indi-cated, if the members of the Talibanarmed forces are not accused of specificcrimes, and are being held solely becausethey were defending their country, theyshould be repatriated.

Members of al Queda pose a more dif-ficult problem. If they intend to pursue ter-rorist activities when released, they willpose a continuing threat. Even though theymay not have committed or aided in thecommission of a crime prior to being cap-tured, assuming that it can be proven thatthey intend to commit crimes if released,they are entitled to a trial to determinetheir intent. However, is intent without anaction a crime? The answer to this questionwill lie to some extent in a conspiracy the-

ory—that al Queda is a criminal enterpriseand that those joining knew its criminalpurpose and had the intent of furthering itscriminal objectives. Broadly viewed, underthis theory any member of al Queda couldbe guilty of conspiracy.

Many questions are inherent in theissues surrounding those detained atQuantanamo. The members of al Quedamust be charged with a crime in order tojustify their continued detention. Theymay be tried, if they are tried, by a mili-tary tribunal, and that is the assumedpurpose of the president’s executiveorder. If members of the Taliban arecharged with a crime, they should betried by a military court martial whichfollows similar rules concerning theadmissability of evidence and opennessas those in federal criminal courts, andwhich includes the right to appeal to ahigher civil court.

Terrorists could also be tried under theU.S. Uniform Code of Military Justice by acourts martial. A more likely forum, if amilitary tribunal is not used, is a federalcourt, where the 1993 bombers of theWorld Trade Center (none of whom wereU.S. citizens) were tried and convicted. Twonon-citizens accused of terrorism are nowbeing tried in the federal courts (ZacariasMoussaoui and Richard C. Reid). Ironically,as of September 2002, two American citi-zens are being held in the United Stateswithout being charged with any crime andwith no access to counsel (Jose Padilla andYasser Esam Hamdi).

Finally, an international tribunalcould be established to try terrorists, orthey could be tried in the InternationalCriminal Court. While such an approachwould have some advantages, it would bethe least likely forum to protect confiden-tial sources of information, and appearshighly unlikely in the context of currentUnited States foreign policy.

As indicated, holding prisoners formany months without charging themwith a crime and without access to coun-sel is contrary to fundamental elementsof constitutional and domestic law andinternational treaties. It contradicts ourclaim to being a nation governed by andrespecting the rule of law. After the 1993Trade Center bombing and in the past

19

Approximately 600 prisoners, captured during fighting in Afghanistan, are currently being detained at a military base inGuantanamo Bay.

William Ginsberg is the Rivkin, Radler & KremerDistinguished Professor of Environmental Law atHofstra. He teaches courses in the environmen-tal, property and real estate fields and fre-quently teaches international environmental lawin the Hofstra University School of Law SummerProgram that takes place in Nice every summer,in cooperation with the University of NiceSchool of Law.

During the summer 2002 program, HofstraUniversity School of Law and the University ofNice School of Law also co-hosted a confer-ence, War, Crimes and Terrorism: The Role ofInternational Courts and Tribunals. ProfessorGinsberg participated in the conference andpresented on military tribunals, from which thisarticle is derived.

Professor Ginsberg’s interest in military tribunalswas stimulated by President Bush’s issuance of anexecutive order on November 13, 2001,“Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,” inresponse to the terrorist attacks on the WorldTrade Center in New York City and on thePentagon in Washington, D.C.

Professor Ginsberg earned a B.A. from AntiochCollege and a J.D. from Yale University. He haspublished, lectured and consulted on a variety ofsubjects in environmental, property and govern-mental fields and is the co-author ofEnvironmental Law and Regulation in New York(West Publishing, 1996).

Prior to joining the faculty at Hofstra, ProfessorGinsberg practiced law as a partner in the NewYork City law firm of Ginsberg, Schwab &Goldberg. He was general counsel and directorof research of the New York State TemporaryCommission on the Powers of Local Government,commissioner and first deputy administrator forthe New York City Parks, Recreation and CulturalAffairs Administration; and deputy and actingexecutive assistant to the president of the NewYork City Council. -SK

year, we have shown that the federalcourts are a forum capable of trying ter-rorists while protecting sources of evi-dence. The use of military tribunals willraise questions, both here and abroad,about the integrity and fairness of theprocess and its results.

End Notes1. Geneva III, Art. 118. 2. Geneva III, Art. 119; Geneva IV, Art.

133. 3. Geneva, Arts. 102 and 106.4. The appeal is not a right, in the

sense that the Supreme Court hasdetermined that it “is a matter ofgrace and not a necessary ingredientof justice.” (Frankfurter, J. inCobbledick v. United States, 309U.S. 323, 325 (1940). See alsoFrankfurter, J. in NLRB v. DonnellyGarment Co., 330 U.S. 219, 229(1947).

5. For example, Geneva ConventionRelative to the Treatment of Prisonersof War of August 12, 1949 (revisingthe Convention of the same namedated July 27, 1929), InternationalCriminal Tribunal for the FormerYugoslavia, The International Courtof Justice, The European Court ofHuman Rights, The InternationalCriminal Court.

6. See, Borchard, Edwin, Convicting theInnocent, Yale University Press 1932;Frank, Jerome, NOT GUILTY,Doubleday, 1932. More recently, seeDwyer and Wilgoren “The SystemDances With Death” section 4, P.1,The New York Times, April 21, 2002.

7. Death Penalty Information Center,1320 Eighteenth Street, NWWashington, D.C. 20036.

8. United State v. Cruikshank, 2 Otto(92 U.S.) 542, 549, 23 L.Ed 588(1875). This case has been cited in939 subsequent decisions.

9. Yick Wo v. Hopkins, 118 U.S. 356,6. S.Ct. 1064; 30 L.ed. 220 (1886).

10. 66 FR 57833.11. Id. Section 1 (e).12. Quirin et al v. Cox, 317 U.S. 1; 63

Supr. Ct. 2; 87 L.Ed.3 (1942).

13. 66 FR 57833 Section 1 (f) and (g).14. 66 FR 57834 Section 2. (a). The

provision also requires that “suchacts have caused, threaten to cause,or have as their aim to cause, injuryto or adverse effects on the UnitedStates, its citizens, national security,foreign policy, or economy.”

15. Lewis, “Dust in Our Eyes” P. A21, TheNew York Times, December 4, 2001.

16. Ch. 6, p. 127, State of the World2002, The World Watch Institute,Washington, D.C. 2002.

17. 66 FR 57834 section 3.18. Id. Section 4(a). The terms “military

tribunals” and “military commis-sions” appear to be used inter-changeably. While there is norequirement that the accused befound guilty prior to punishmentbeing imposed, such a requirementis implicit in the language quoted.

19. 66 FR 57835-6 Section (b) (1) and(2).

20. Department of Defense, MilitaryCommission Order No. 1, March21, 2002, Section 5.

21. Id. Section 4 C. (3).22. Id. Section 5. E.23. Id. at O.24. Id. at F.25. Id. Section 6. F.26. Id.27. Id. at H. (2)28. Id. Section 6 F.29. Id. Sections 2 and 4 A. (3).30. Id. section 4 C. (2) and (3).31. Id. Section 6 B. (3). See, generally,

“Protection of Information” section6 D. (5).

32. Id. at D. (2) b. and c.33. Id. at (3).34. Id. at H. (4).35. Id. at (5).

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