Dr. Samuel Francis is an outstanding scholar, and he is usually right on target, but, speaking as an attorney, I’m afraid his article “Tribunals for Terror” (Views, March) is seriously flawed.

Supporters have argued that tribunals are necessary, in part, to avoid potential intimidation of jurors.  Dr. Francis, however, believes that Timothy McVeigh and the first World Trade Center bombers were “tried without mishap” and, therefore, concludes: “There is no reason to suppose that trying Al Qaeda suspects publicly would be any more dangerous, and if such threats did appear, they could be dealt with as necessary.”  Unfortunately, there is every reason to believe that Al Qaeda is vastly more dangerous than either Mr. McVeigh or the inept World Trade Center bombers, caught when one of their number went back to Ryder to claim his security deposit.  But what does he mean when he says that such a threat can be “dealt with as necessary?”  Juror intimidation is often undetected, precisely because its purpose is to achieve an acquittal and the subsequent constitutional protection against double jeopardy.  But if it is discovered, what should be done?  Declare a mistrial and try, try again, putting ever more people at risk?  Put the judge, jury, attorneys, witnesses, et al., in a witness-protection program and ruin innocent lives forever?

Dr. Francis dismisses the need for secrecy, arguing that military officers are not more trustworthy than civilian jurors.  Unlike civilian jurors, however, U.S. military officers are subject to the Uniform Code of Military Justice (UCMJ), and at least several thousand of them must enjoy top-secret security clearance.  His claim that secret information would have to be made available to the defendants is likewise insupportable.  Such information would be made available only to the defendants’ lawyers, who would be sworn to secrecy—most likely holding top-secret clearance themselves—and who would argue relevance and probity directly to the tribunal, without the need for the presence, involvement, or even the knowledge of the accused.

Dr. Francis believes that the tribunal’s new rules of evidence would be “inconsistent with elementary notions of justice.”  Not true: Our modern rules of evidence in criminal cases originated in the ultra-liberal Warren Court.  Under Miranda’s infamous Exclusionary Rule, for example, any statement made by, or evidence discovered by reason of statements made by, the accused before he has been read and understands his rights is inadmissible.  Is Dr. Francis suggesting that, before Miranda, our courts did not dispense justice?  Furthermore, most rules of evidence are designed to control either the behavior of the cop on the beat (not the soldier in the field) or the presentation of evidence to the jury—evidence that a judge or a military tribunal could be trusted to weigh properly, but which would be too confusing or inflammatory to be presented safely to a jury.  Evidence of past criminal acts, for example, is deemed highly prejudicial in a jury trial and would normally be excluded unless greatly outweighed by its probative value.  Would it, therefore, also be “inconsistent with elementary notions of justice” for a military tribunal to consider evidence of an accused’s previous acts of terror that had no direct connection with the pending case?  I think not, and I think most Americans would agree.

Dr. Francis dismisses the precedent set by George Washington’s tribunals because they occurred “before the Constitution had been written,” even though the principles set forth in the Fourth, Fifth, and Sixth Amendments were well established in the common law of the time.  The right to be free of unreasonable search and seizure—the Fourth Amendment—was a part of Anglo-American law long before the Revolution.  Likewise, the precedents for the Fifth and Sixth Amendments—the right to due process and to a public trial by jury—were pillars of colonial criminal law and can be traced as far back as the Magna Carta.  Thus, George Washington did in fact create a meaningful precedent when he used military tribunals in time of war.

Dr. Francis rightly denounces the botched military trials of Lincoln’s assassins, but the issue at hand is whether it is lawful for a military tribunal to try nonmilitary personnel in any circumstances.  In this regard, he cites Ex parte Milligan for the proposition that “the Constitution is not suspended in time of emergency.”  Again, not true.  Justice Davis’s opinion is quite clear: Martial rule can be properly applied when, “in foreign invasion or civil war, the courts are actually closed, and there is a necessity to furnish a substitute for the civil authority . . . to preserve the safety of the army and society . . . ”  Had the case been brought, such circumstances might well have been found to justify the military trials of those implicated in President Lincoln’s assassination.  More importantly, the Court’s holding is expressly based on the fact that Milligan was “not a resident of one of the rebellious states or a prisoner of war . . . ”  I submit that Ex parte Milligan is not controlling authority as to the issue of military trials of noncitizens or prisoners of war; further, contrary to Dr. Francis’s assertion, its dicta support the proposition that military courts may lawfully try even American citizens under certain extraordinary circumstances.

Dr. Francis states: “[T]he tribunals confuse the functions of war and law enforcement, so that men who would ordinarily be considered criminals are considered to be prisoners of war, even though no war has been formally declared” (emphasis mine).  Apparently, Dr. Francis believes that only a formal declaration of war can change ordinary criminals into prisoners of war.  But what would such a declaration of war look like?  We could declare war on Al Qaeda, but that is just a name.  On Afghanistan?  But that is just one staging area among many.  On “terrorism”?  On Islamic extremists?  On the world?  No wording would be quite right, would it?  Yet our enemy has inflicted the most dastardly attack that this nation has ever suffered and threatens to do so again and again.  In order to find a solution to this conundrum, we must reexamine the facts: The terrorists constitute a well-financed, well-organized, highly motivated, extremely dangerous, multinational force warring against the people of the United States.  They are clearly not ordinary criminals.  An extraordinary process is therefore needed to deal with such extraordinary individuals, and military tribunals are both reasonable and appropriate to the purpose.  In this same vein, Dr. Francis correctly states that “POWs are not usually put on trial,” but an Islamic terrorist is not your usual POW: He does not fight in uniform, is functionally stateless, does not abide by, and is not bound by, the Geneva Convention, and—contrary to all the rules of war—he attacks unarmed civilians.  As Edmund Burke so rightly observed: “The circumstances are what render every civil and political scheme beneficial or noxious to mankind.”  In this time of unprecedented national danger, meaningless formalities and inapt distinctions are noxious in the extreme.

Dr. Francis believes that “[t]he underlying problem with the tribunals is precisely that they might be used against American citizens or serve as a precedent for such use.”  This is the crux of the matter.  The solution, it seems to me, is not to deny the government the use of a necessary and lawful means of defense because an unscrupulous person might abuse it in the future, but rather to ensure that our governmental institutions—and the people in them—refrain from unlawful behavior.  If some future official wants to violate his oath of office, he will do so whether or not we use military tribunals to bring terrorists to justice.

Finally, Dr. Francis argues that the use of military tribunals will “acclimatize the American public to the erosion of civil liberties and the rule of law.”  I think the American public is smart enough to understand that the use of military tribunals in this context, against these people, and in the manner proposed is no more a threat to our freedom or to the rule of law than the military trials that occur every day of the week.  I believe the case can be made that the Warren Court’s pro-defendant legacy has done more to undermine respect for the law than a million military tribunals ever could.  What would be the impact, I wonder, if a patently guilty, mass-murdering Al Qaeda terrorist is set free on a Miranda-style technicality?  Not only is such an outcome possible when the defendant is “arrested” by soldiers on a battlefield, it is far more likely than not.  The inevitable public outrage would force the government to take drastic measures—measures that would no doubt entail the sweeping and immediate curtailment of civil liberties.  Indeed, if the powers that be really wanted to destroy the rule of law, they could not do better than to engineer just such a result.

Military tribunals can only be justified if they are reasonably necessary for the safety of society and are conducted, insofar as practicable, in accordance with traditional notions of fairness.  In view of the precedents, and in view of our exceptional circumstances, I submit that they are not only justified but essential.

        —Theodore B. Hannon
Kailua, Hawaii

Dr. Francis Replies:

Most of Mr. Hannon’s criticisms are without merit.

(1) “There is every reason to believe that Al Qaeda is vastly more dangerous” than McVeigh or the WTC bombers.  I did not say that Al Qaeda was not more dangerous than McVeigh and the WTC bombers.  I said, as Mr. Hannon in his previous sentence accurately quotes me as saying, “There is no reason to suppose that trying Al Qaeda suspects publicly would be any more dangerous, and if such threats did appear, they could be dealt with as necessary.”  The difference is not in the dangerousness of the defendants but in the dangerousness of trying the defendants.  McVeigh may or may not have had allies (certainly he had many sympathizers), but I also mentioned such groups as Al Capone’s gang and the Manson family, and I could have cited many others: notorious criminals who nevertheless had devoted, disciplined, and physically dangerous followers.  I can think of none of these kinds of defendants in American history in which secret trials were necessary, and I can think of no reason why trying Al Qaeda suspects would be any more dangerous.  (In fact, the public trials for Zacarias Moussaoui and Richard Reid have so far not led to any intimidation or reprisals; moreover, even if trials are conducted in secret, terrorists could still launch reprisals against targets that had nothing to do with the trials.)

(2) “Dealt with as necessary”: If jury intimidation is undetected, how would we know it happened?  Why should we violate ordinary constitutional procedure on the assumption that it will happen?  My phrase “dealing with it as necessary” means taking whatever measures are needed to avoid intimidation of the court as it comes to the knowledge of the authorities.  Mistrials may indeed result.   (Are mistrials not possible in secret tribunals?  Does Mr. Hannon know whether they are or not?  Does anyone know?)  Such measures would probably involve simply added security for jurors, judges, lawyers, courtrooms, etc.  Mr. Hannon merely assumes that the worst case will happen and proposes to alter traditional court procedures on that assumption, whether it is true or not.  I believe we should abide by traditional procedure until events show it is no longer practical or safe to do so.

(3) Untrustworthiness of military officers: Mr. Hannon argues that, because military officers are subject to the UCMJ,  they are somehow more vulnerable than civilians to legal sanctions for security violations.  This is not valid.  Civilians can also have top-secret clearance or higher and are subject to legal sanctions if they violate it.  So would civilian jurors be in cases in which classified information was expected to be submitted as evidence.  Civilian jurors, as Mr. Hannon must surely know, are routinely exposed to highly confidential (but not necessarily “classified”) information (including one another’s identities) that is seldom exposed.  To say that we cannot trust any civilian jurors with classified information is equivalent to saying that the jury system is entirely bankrupt.

(4) My claim that “secret information would have to be made available to the defendants is likewise insupportable.”  Mr. Hannon says such information would “be made available only to the defendants’ lawyers.”  In the first place, some defense lawyers in some terrorism and national security cases are no more trustworthy than the defendants and may be more dangerous; giving them access to classified information is tantamount to giving it to the terrorists themselves.  Secondly, let’s take the following, not unreasonable, hypothetical: The government claims that defendant Ahmed was a participant in a terrorist cell that plotted bombings.  The defense wants to know what the evidence for the claim is.  The evidence is the statement of a CIA informant in the terrorist cell whose identity cannot be exposed without endangering his life.  Should defendant Ahmed be told the identity of the informant?  If he isn’t, how can he possibly defend himself?  How could his lawyers know what Ahmed may know about the informant and his reliability?  What if the informant is known to have a personal grudge against Ahmed, or is a notorious liar, or his mistakenly mixed Ahmed up with someone else?  There simply is no way in which evidence from classified sources can be withheld from the actual defendant without risking and encouraging the most grotesque injustice.

(5) “Our modern rules of evidence in criminal cases originated in the Warren Court.”  This is an absurd statement.  Some rules of evidence (e.g., the one on hearsay) go back a good bit further, but whenever they originated, they (including the much-modified Miranda rule) are now the rules under which all law-
yers, judges, and the investigators who collect evidence are trained.  To create new rules of evidence with which none of the above has any knowledge or experience is to invite chaos as well as injustice.  To alter the rules simply to facilitate convictions is also grotesquely unjust.

(6) Washington’s precedents: I do not understand how practices before the adoption of the Constitution can constitute precedents under it, at least as binding law governing life-and-death courtroom decisions.  In any case, we are not now legally at war, despite all the rhetoric from the press and government, and, during Washington’s time and in his circumstances there may have been no alternatives to military tribunals for some crimes.  I made the reference to Washington’s tribunals in the context of Judge Bork’s citation of them, but Bork says nothing about who was tried, for what charges, or in which circumstances.  I don’t know either, but their relevance on grounds of logic alone is suspect.

(7) It is “not true,” Mr. Hannon writes, that Ex parte Milligan says “the Constitution is not suspended in time of emergency.”  My source for my statement that “Justice David Davis wrote that the Constitution is not suspended in time of emergency and that it remains ‘a law for rulers and people, equally in time of war and peace’” was drawn from the Oxford Companion to the Supreme Court (1992), a standard reference work: “ . . . Justice David Davis emphasized that the Constitution was not suspended in time of emergency, eloquently noting that it was ‘a law for rulers and people, equally in time of war and peace’” (p. 549).  The point is that Milligan holds that military courts are not permissible when the civilian courts are open.  Since September 11, the civilian courts have remained open, and no one disputes that.  Therefore, military courts, especially secret ones, are not permissible.

(8) “Apparently Dr. Francis believes that only a formal declaration of war can change ordinary criminals into prisoners of war.”  Dr. Francis believes “ordinary criminals” cannot be changed into prisoners of war by any legal measure.  He believes people who commit murder, robbery, hijacking, piracy, bombing, kidnapping, etc., are ordinary criminals who should be tried according to the same ordinary legal procedures regardless of their specific motives (greed, hatred, political or religious ideology).  As I noted in the article, it may be permissible and necessary simply to shoot known terrorists on sight, and a campaign of clandestine assassinations of known terrorists and their leaders is what I would propose as the most effective means of destroying Al Qaeda.  Those who authorize and carry out such a campaign must be prepared to accept the consequences if they assassinate the wrong people.  Let us not, however, corrupt our constitutional and legal processes by staging phony “trials” in secret, under phony “rules of evidence”; such procedures would only damage what remains of our constitutional tradition far more severely than acquittal of suspected terrorists would, and they would eventually be invoked as “precedents” to prosecute American citizens, as Judge Bork has already demanded.

(9) “The solution is not to deny the government the use of a necessary and lawful means of defense because an unscrupulous person might abuse it in the future.”  This begs the question whether secret military tribunals are “necessary and lawful” at all and, secondly, this is precisely why we should be cautious about what government does in the name of law—because unscrupulous persons might abuse it in the future by citing it as “precedent.”  (Lincoln, Stanton, Franklin Roosevelt, Lyndon Johnson, Richard Nixon, Bill Clinton—these are merely the most notoriously unscrupulous; leave aside the dumb and the well-meaning, such as Gerald Ford and Ronald Reagan, or the merely ambitious, shallow, and thoughtless, such as George W. Bush, his father, and John Ashcroft.)  If we are not concerned about such abuses, then consideration of what might become “precedents” is irrelevant.

(10) The American public may or may not be smart enough to understand what military tribunals are ostensibly being used for.  The American public is probably a lot less smart today than it was in Lincoln’s time, but it fell for quite a bit back then.  How smart it will be in the future is anyone’s guess, and how easily it can then be manipulated into condoning tyranny and injustice to its own citizens by “unscrupulous persons” through appeals to fear, greed, lust for power or for vengeance, phony patriotism, globalist ideology, thinly masked ethnic and religious prejudices, and other passions, I simply can’t say.  I leave it to Mr. Hannon to assure us that it can’t happen here.

“What would be the impact,” Mr. Hannon wonders, “if a patently guilty, mass-murdering Al Qaeda terrorist is set free on a Miranda-style technicality?”  The impact is that he goes free, although if he is “patently guilty,” I wonder why a civilian court of the kind that convicted McVeigh, Capone, et al., can’t convict him.  If he’s not “patently guilty” (which presumably means guilty beyond a reasonable doubt), then he should go free.  Guilty people go free all the time, including mass murderers who held power in communist states and who have murdered far more people than Al Qaeda has.  It is not a good thing for guilty people to go free, but that is a risk free societies ruled by law have to run.  Somehow we survive the acquittals or non-prosecutions of O.J. Simpson, Jane Fonda, Bernardine Dohrn, Abraham Lincoln, Franklin Roosevelt, and many, many others who have blood on their hands.  The point I tried to make in my article is that we can and do survive such miscarriages of justice.  What we cannot and will not survive is the deliberate establishment of precedents that will be used—and may have actually been designed to be used—to erode our constitutional traditions even more than they already have been.