Something fundamental - international terrorism - is missing from Attorney General John Ashcroft's defense of the presidential order authorizing US military commissions to prosecute international terrorists in truncated judicial proceedings. The terrorist suspects are war criminals, Mr. Ashcroft testified, and should be tried for violations of the law of war.
Military commissions may be needed for certain key suspects, but they should be the exception. When used, they should be subject to rules that protect critical due-process rights of defendants and permit appeal to federal courts. The president's military order is so loosely drafted, though, that the administration shot itself in the foot.
The order is framed as a legal assault on international terrorists, but then it turns them into war criminals. There is an important difference between terrorists and war criminals.
An international terrorist has no legitimate target, civilian or military. If a terrorist attacks a military target and kills only military people, that act is still criminal. That is what recent international antiterrorism conventions and the tough US criminal statutes enacted to prosecute terrorists in federal courts provide. Keeping terrorists in their slimy terrorist box has its advantages for prosecutors.
Using antiterrorism laws, federal prosecutors have convicted terrorists in successful trials, respectful of due-process rights and protective of classified information, for the 1993 World Trade Center bombing and the '98 US Embassy bombings in Africa.
In contrast, once a terrorist suspect is categorized as an alleged war criminal and prosecuted before a military commission for violations solely of the law of war, his successful prosecution can be precarious. Even if the individual is regarded as an unlawful belligerent because of the character of his warfare or perhaps his membership in the Al Qaeda network, that alleged war criminal or his comrades-at-large may still wriggle their way into lawful belligerency and thus seek to justify attacks on military targets. Why risk conceding any belligerent status, lawful or unlawful, to terrorists? They do not deserve it.
Military commissions have limited jurisdiction over violations of the law of war and, if authorized by statute, other offenses. But the Uniform Code of Military Justice establishes jurisdiction only over the law of war. Absent a new act of Congress, a military commission would lack authority to enforce antiterrorism laws or even crimes against humanity that do not overlap with the law of war. Reliance only on the law of war would deny military prosecutors potent laws that have proved their worth in federal trials of terrorists.
Most terrorist suspects who aren't killed likely will be apprehended by foreign authorities. The military order is drafted so dismissively of due-process rights, it is improbable foreign authorities would extradite terrorist suspects to stand trial in any US court. Unless the much-awaited Defense Department rules of procedure and evidence allay concerns, foreign governments will balk at the paucity of due-process rights in the military commission and refuse to take the heat for transferring an alleged "war criminal" into the black hole implied by the military order.
Already, Spain has signaled its unwillingness to extradite captured Al Qaeda suspects to the United States because of the prospect of trial by military commission and of the death penalty.
Antideath-penalty governments will bar extraditions to military commissions less inclined to waive the death penalty than would federal courts. But even if extradition to a federal court were probable, the military order could require that court to transfer the suspect to a military commission that would exercise exclusive jurisdiction, may operate in a free-fire zone for due process, and could aggressively seek the death penalty. How can foreign authorities risk that?
Foreign officials may accept the responsibility to prosecute individuals in their custody who planned or committed terrorist attacks against US targets. In terms of building a robust international legal architecture for dealing with terrorism, the practical benefits of having trials in US and foreign courts are significant.
The best course would be to fix the military order with congressional action that makes military commissions more user-friendly for foreign authorities and that casts the order as an exceptional option for use only when US federal courts truly cannot assume their rightful role in prosecuting international terrorists.
David J. Scheffer, former US Ambassador at Large for War Crimes Issues, is a senior fellow at the US Institute of Peace, which recently released his report, 'Options for Prosecuting International Terrorists.'