Reasons for a Military Tribunal
by Victoria Toensing
The carnage of
September 11, 2001, was neither a crime nor an act of war. It was an illegal
act of war intended to destroy our American society. As such, it is
beyond the scope of our criminal laws.
country by stealth (sans military uniform) to destroy “life or
property,” states our Supreme Court, is an example of a belligerent who is
an offender “against the law of war subject to trial and punishment by
military tribunal.” Therefore, those who decry military tribunals
cannot prevail on Supreme Court precedent. They must argue policy. I
supervised the U.S. Justice Department’s terrorism unit in the mid-1980s,
and faced the problems of investigating and prosecuting terrorism. I
know the practical policy reasons that require the president to have the
option to try these cases outside our criminal justice system.
requirements of a regular trial would overwhelm our federal law enforcement
personnel capability and subject government trial participants and buildings
to round-the-clock protection. Federal judge Michael Mukasey, who
presided over the1993 trial of Shiek Omar Abdel-Rahman charged with
conspiring to blow up five New York City landmarks, is still under 24-hour
armed protection, a condition akin to being a mobster on the witness
protection program. The sentences of defendants convicted in New York
City of the East African Embassies bombings were scheduled days after 9/11.
When I was
negotiating with the German government to extradite Mohamed Hamadi,
responsible for the 1985 hijacking of TWA 847 and the murder of Navy Seal
Robert Stethem, my husband Joseph diGenova was the D.C. U.S. Attorney who
would try the case. in the So both of us were government operatives
bringing a mid-East terrorist to trial. After we requested Hamadi’s
extradition, a U.S. Marshal showed up at Joe’s office asking our blood
type and insisting we move from our cul-de-sac so 24- hour surveillance
would be easier to maintain.
We had no problem with
these requests because fighting terrorism was a cause to which we were
dedicated. But when the Marshal also asked for locations and blood
types of our three children, my heart skipped a beat. They hadn’t
asked for this danger. We escaped that emotional call when the German
government refused to extradite and, instead, tried and convicted Hamadi.
Yet, the scenario made me keenly aware that the need for round-the-clock
protection from death threats involves not just the judge, the prosecutor
and the witnesses; it encompasses the families of those trial participants.
Even if we had enough federal law enforcement personnel to provide full-time
security for all parties involved in terrorism trials (and we do not), why
would we want to impose on our government servants a choice of a life of
confinement or vulnerability to terrorism for doing their jobs?
And then there is the jury.
Who wants to serve as a juror, deciding guilt knowing that Osama Bin Laden,
his lieutenants, and worldwide cells would hold us accountable?
Ireland, long ago in its Offenses Against the State Act, gave up using jury
trials for terrorism cases because its citizenry was too intimidated to
A further security concern
is protection for the courtrooms. Any building utilized would become a
citadel with the lives of all workers, trial related or not, at risk. Who
wants to live or work within a bomb’s blast of a building housing a
In cases requiring evidence
from outside the United States, there are problems that could prevent
all relevant evidence of guilt to be used. The only situation worse
than not capturing any terrorists is capturing them, bringing them back to
the United States for trial and having to release them because evidence of
guilt was kept from the U.S. government or not admitted into evidence.
When I was at the Justice
Department, we refused to request arrest or extradition of a terrorist
unless and until we had evidence beyond a reasonable doubt and were certain
of its admissibility in a federal trial. There is no such luxury
during war where we round up combatants whose names or evidence against them
will not be known until weeks or months after capture.
September 11, 2001 was not
a bank robbery in Sheboygan. Few, if any, U.S. located witnesses or
documents will be relevant. It was an international plot planned by
foreigners mostly outside our borders. Evidence of guilt will be
gathered by foreign governments, either by their intelligence agencies or
police forces. Obtaining admissible evidence is difficult under both
As a Justice Department
official I had information of a foreign intelligence service possessing a
tape of a terrorist’s involvement in an attack in which a U.S. citizen was
a victim. We should have prosecuted the case. However, under no
circumstances would the intelligence agency give us the tape, the only form
in which a U.S. court would allow a jury to hear the words on the tape.
(“We’ll give you a summary if you don’t tell where it came from.”)
To provide us the tape would mean that the fact of wiretapping would be
known, revealing to the terrorists the phones being monitored. For
this country, preventing a future attack was more important than prosecuting
To all who claim we have a
law for admitting such evidence, I assure you that the Grey Mail Act,
designed for spy cases and leaks of classified information, works in only a
handful of cases. Many times sources and methods cannot be
sufficiently hidden. The government does not reveal when disclosures
required by the Act result in declinations.
Evidence collected by a
foreign police force presents another problem but with the same result: the
probability of not being used at trial. U.S. courts do not use
relevance and reliability as the only factors for admitting evidence.
In criminal cases, the courts can exclude evidence, no matter how probative
of guilt, if the police officer does not follow certain rules such as
obtaining a proper search warrant or giving Miranda rights. Under U.S.
law, “guilty” persons can go free if the constable blunders.
For example, a foreign
police officer enters a known terrorist cell and finds credible strong
evidence of guilt: diagrams of Dulles airport, notes describing the speed
and angle necessary to demolish a structure, and bank records showing
transactions with the hijackers named on the Pentagon plane. However,
U.S. law is unclear whether evidence is admissible that does not comply with
U.S. Constitutional standards. Some courts allow it, others do not.
In many countries there
would be no warrant signed by a judge finding probable cause to search.
Congress rejected a law ensuring this type of foreign evidence could be used
in terrorist trials. U.S. prosecution means risk of losing credible
strong evidence of guilt because a foreign constable blundered, a result
that could mean release for the accused terrorist.
A jury trial of a person
charged with crimes associated with September 11 will not necessarily be
fairer than a tribunal procedure. Both defendant and government are
entitled to a fair trial. Any defense attorney, not just a good one,
will take one nano second to argue there is no American city where the
defendant could get a fair trial. If Timothy McVeigh’s trial for
bombing the Oklahoma federal building had to be moved to Denver because of
local publicity and community outrage, where in America are those factors
absent from a jury pool for the September 11th attacks?
On the other hand, the
government could be deprived of a fair trial if the jury votes not guilty
because it is so intimidated for fear of retaliation.
deciding our options for response to September 11th,
we must not forget that,
unlike ordinary crimes, our goal in war violations is not only to find the
perpetrators. We must prevent another attack on our citizens. In
that regard, perhaps the most practical argument for the President to have
the option of trying non-U.S. belligerents in a military tribunal is that he
already has one: to kill them.