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Sunday Schedule
Program
Annual
Meeting
Home
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Sunday, January 5, 2003
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3:30-5:15 p.m.
Joint Program of Sections on Criminal Justice and Evidence
- Andrew Eric Taslitz, Howard University, and Chair, Section on Criminal Justice
- Christopher B. Mueller, University of Colorado, and Chair, Section on Evidence
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Virginia Suite B
Marriott Wardman Park Hotel
Lobby Level |
Trying Terrorists in Military
Tribunals--Can We Really Do This?
Moderators:- Christopher B. Mueller, University of Colorado
- Andrew Eric Taslitz, Howard University
Speakers:- Ronald Jay Allen, Northwestern University
- Robinson O. Everett, Duke University
- Eric E. Jasso, Counselor to the Assitant Attorney General, U.S. Department of Justice, Washington, D.C.
- Kim Lane Scheppele, University of Pennsylvania
On November 11, 2001, President Bush issued an order contemplating detention of non-citizens connected with al Qaeda for later trials in military tribunals. On March 21, 2002, the Department of Defense issued an order contemplating the creation of such tribunals and setting ground rules. By midsummer 2002, 600 people were incarcerated at Guantanamo Bay in anticipation of military trials, and the facility was to be expanded.
Defenders and critics became vocal by December 2001. Defenders argued that we've been down that road before: Lincoln did it during the civil war, and Roosevelt during World War II; noncitizen terrorists arrested abroad were not entitled to the due process rights of citizens charged at home with civilian crimes. Critics said the President lacked authority (only Congress can take such steps). Also the order was overbroad because it could reach resident aliens and others legally in the country, and the President could designate people to be detained in this manner, with no provision to check for errors by habeas corpus. And terrorists, who succeeded so well on September 11, could not be allowed to destroy basic liberties and process.
In its midwinter meeting in February 2002, the ABA urged caution. While the March 21st order went far to alleviate procedural concerns (the order provides, among other things, that defendants have a right to counsel, and to call and cross-examine witnesses), it fell short on two salient points: First was the continuing issue of over breadth; second was the lack of civilian court review.
Briefly, the military tribunals would be staffed by military officers-judges, prosecutors, and defense counsel (although the accused has the right to retain an American civilian lawyer). There are no juries (convictions may be had on a two-thirds vote by military judges) and no provision for civilian court review, neither by appeal nor by habeas corpus. Proceedings may be closed from public view to protect classified information, witnesses, intelligence, and law enforcement sources, methods, or activities, and other national security interests. Evidence "shall be admitted" if it "would have probative value to a reasonable person."
This approach to trying terrorists brings many issues. Beyond the question of over breadth, there are issues relating to separation of powers: Is congressional action necessary? Does the system concentrate too much power in the executive branch? (The President designates terrorists and resolves appeals. The Defense Secretary appoints judges, lawyers on both sides, and plays a role in appeals.) By summer 2002, jurisdictional issues had surfaced because of four cases that were handled differently (those of John Walker Lind, Zacharias Moussaoui, Jose Padilla, and Yasser Hamdi). More broadly, are these really military tribunals, and are we blurring the distinction between the proper roles of civilian and military tribunals? Can we proceed in this way, and is it wise? Can we expect substantial justice, and will we persuade outside observers that we are fair? Do we need Evidence Rules or procedural protections that were omitted from the Defense Department order?
Our speakers will address these important issues of fairness and legitimacy from a variety of perspectives.
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