by John Yoo
Moussaoui said that bin Laden had personally ordered him to fly a plane into the White House.26 A special jury trial was then held on the death penalty. This consumed yet another year of proceedings in which the prosecution rehashed the devastating losses of September 11. The defense dramatized Moussaoui's personal background (he was said to have been an abused child and alienated youth) and tried to put the government on trial by showing that it did little to prevent the 9/11 attacks. The defense, in other words, was that Moussaoui's decision to join al Qaeda's jihad was the product of a tough childhood, rather than his own choice, and that the United States was really to blame for 9/11.
Moussaoui had to be ejected several times during the death penalty phase for interrupting the proceedings. He began by execrating President Bush for his "new campaign, a revenge against terrorists." Then, he castigated his lawyers, calling them a "KKK lawyer" and a "geisha."27 As the prosecution described the events of 9/11, he smiled and then pumped his fists and shouted, "God curse America!"28 On the stand, Moussaoui proclaimed proudly, "I was supposed to pilot a plane to hit the White House," and said he'd known in advance about the plans to strike the World Trade Center. He described his great pleasure upon learning of the casualties on September 11, called the collapse of the twin towers "gorgeous," and predicted that "three thousand miscreants" will burn in "hellfire." In clear and calm tones, he announced, "I consider every American to be my enemy," adding, "Every American is going to want my death because I want their death."29 After listening to testimony about the deaths in New York, the Pentagon, and on United flight 93, Moussaoui testified that the September 11 survivors and family members were "pathetic" and "disgusting." He admitted again to joining al Qaeda and the 9/11 plot, told the prosecutor that the death toll was too low, and proudly declared he would join a suicide mission again if he could.30
After lengthy deliberations in which a single juror blocked the death penalty, the jury sentenced Moussaoui to life in prison. Nine of the twelve jurors found that his difficult childhood mitigated his responsibility. More than four years after he was first indicted, the trial ended, though not before giving Moussaoui a platform to air his anti-American speeches and insult those who died on 9/11 and their families. He also used the generosity of the American criminal justice system as a tool to force the government to reveal important secrets in the war against al Qaeda.31 Yet, our criminal justice system spared his life, based on psychological excuses that Moussaoui himself found insulting. As President Bush remarked after the verdict, "Mr. Moussaoui got a fair trial" and his life was spared, which "is something that he evidently wasn't willing to do for innocent American citizens."32
Those who believe the Moussaoui case shows that the criminal justice system can try terrorists have not paid close attention to the proceedings. If Moussaoui had chosen to fight on, as would be standard operating procedure with a competent defense counsel, his case would still be going on today. Then, in your mind, multiply that by hundreds or thousands of other terrorists.
II.
If Justice Department officials could do it all over again, they certainly would have sent Moussaoui to a military commission. Military commissions are the historic compromise between protecting a nation's secrets and its ability to conduct war, on the one hand, and due process for the accused on the other. They are flexible enough to respect the needs of wartime, and bring more expertise than a civilian court.
Unlike regular courts, military commissions can close portions of proceedings when classified material is involved or an enemy leader might testify. A fair trial is still guaranteed, because the defendant's defense attorneys are present. The defense attorneys must have appropriate security clearances. Assurances are obtained that neither they nor the defendant will leak any classified information.
A military commission can also use more flexible rules of evidence. Our criminal trials impose a very high standard on the information that reaches a jury. Witnesses generally must testify in person, hearsay evidence typically must be excluded, and the reliability of evidence must meet high procedural hurdles. This is because the jury is supposed to be kept ignorant of certain types of evidence that might be assumed to sway the novice. Juries are not trusted to make difficult judgments about the reliability of broad, contextual information. Military commissions, however, are staffed by professionals versed in the reliability of hearsay evidence, or in whether an item of evidence is more probative than prejudicial. Rules of courtroom procedure, like the exclusionary rule's bar on evidence that was obtained without a warrant, seek to regulate police conduct and have less to do with the relevance or credibility of evidence. These rules do not apply to war, because courtroom outcomes do not "regulate" how the military does its job on the battlefield.
Our military does not play the same role in our society that the police do. Police must follow the exclusionary rule and the Miranda warnings, or courts can let the suspect go free. Courts use these rules to encourage the police and prosecutors to respect the defendant's rights and because the costs to society of the occasional error in a criminal's favor are deemed low. These rules do not make sense in war, where the primary purpose of the armed forces is to defeat the enemy. If the military had to abide by a host of legal rules, it would interfere drastically with its ability to fight effectively. As one military analyst has put it, the job of the 82nd Airborne is to vaporize, not Mirandize.
Civilian courts would not allow into evidence important military evidence in at least two cases.33 Suppose Osama bin Laden called his mother to warn her of the 9/11 attacks and she told a friend. A civilian court would exclude this as hearsay testimony. But a military commission could allow it. A Wall Street Journal reporter found a hard drive filled with al Qaeda documents in a Kabul market. This information would likely not be admitted in civilian court, because its chain of custody from al Qaeda to the Kabul market couldn't be verified. A military commission could review the information if it thought it was reasonably reliable. Another example is information gained through interrogations, intelligence intercepts, and informants. None of this information complies with the Fourth Amendment's warrant requirement or Miranda, but if it is reasonably relevant, the military will act upon it.
In fact, thoughtful civil libertarians ought to welcome military commissions. Military commissions have the benefit of limiting any compromises between national security and civil liberties. Civil libertarians, most recently Geoffrey Stone in his Perilous Times, warn that courts historically bend too far to accommodate the needs of national security in wartime.34 Such patterns drawn from the past don't necessarily describe the present or predict the future, particularly in the face of unprecedented change. The main worry ought to be that compromises that favor national security will permanently affect our domestic criminal law in times of peace. Military commissions in fact have a civil libertarian function, by confining the more flexible rules for national security cases so they will not seep over to civilian cases. Trying enemy combatants in civilian courts could have the opposite effect, particularly in periods just after a major enemy assault like 9/11.
Military commissions are also more secure. Civil trials of terrorists in the United States make an inviting target for al Qaeda. Even before 9/11, our government recognized the threat to judicial personnel by placing heavy security in the New York City federal court building and putting federal judges who tried the al Qaeda cases of the 1990s under constant protection.35 Civilian trials tend to be in major cities, such as New York City or Washington, D.C., compounding potential loss of life if they were targeted for attack. In this war military tribunals are conducted at Guantanamo Bay, a well-defended military facility far from any American population centers.
Some critics believe the military can't run fair trials. They claim that they are secretive, unfair because they operate without juries, and presume the guilt of the defendant. The title of a recent book by a civil liberties lawyer says it all: Secret Trials and Executions: Military Tribunals and the Threat to
Democracy.36 Civil libertarians think military officers can't be effective defense attorneys because they are susceptible to "command influence"--being swayed by their superior officers' desire to convict. In short, they argue that military commissions are inherently flawed because their rules and procedures are just too different from those of the standard criminal trial system.
This viewpoint displays a serious lack of understanding of the military justice system. Millions of American servicemen and women serve today under the Uniform Code of Military Justice (UCMJ). That system has developed over many decades, and it provides a fair and open trial. Unlike our criminal trials, in which jurors are selected for their ignorance, military tribunals are populated by officers who are college graduates with extensive professional knowledge. The system requires defense attorneys to do their best to represent their clients free from command influence. Indeed, President Bush did not order the military to convict whomever he wanted to, but to provide each defendant a "full and fair trial." And the military is bound to carry out his orders.
Civil libertarians, members of the media, and academics portray military commissions as some Frankenstein creation of the Bush administration. According to the New York Times, "in the place of fair trials and due process," President Bush "has substituted a crude and unaccountable system that any dictator would admire."37 It is anything but. Only pundits with little knowledge of American history or no contact with the military and its legal system would voice such a view.
Military commissions are the customary form of justice for enemy prisoners who violate the laws of war. They have also served as courts of justice during occupations and in times of martial law. American generals have used military commissions in virtually every significant war from the Revolutionary War through World War II.38 As commander of the revolutionary armies, George Washington put John Andre on trial for spying in 1780 before a military commission.39 Major Andre had been found, out of uniform, carrying the plans for West Point, which he had received from Benedict Arnold. Washington's military "Court of Inquiry" convicted Andre and sentenced him to hanging. During the War of 1812, General Andrew Jackson employed military commissions in the areas under his command, and then used them again in an 1818 Indian War. These special military courts did not assume the name "commissions" until the Mexican-American War, when General Winfield Scott established two types, one to help maintain law and order in the occupied parts of Mexico, the other to try violations of the laws of war, such as guerrilla warfare.
Military commissions witnessed their heaviest use in the Civil War. Union generals established military commissions in early 1862 to try suspected Confederate operatives behind Union lines, to prosecute violations of the laws of war, and to administer justice in occupied areas. Later that year, President Lincoln proclaimed that "all rebels and insurgents, their aiders and abettors within the United States," and anyone "guilty of any disloyal practice affording aid and comfort to rebels" would be subject to martial law, "and liable to trial and punishment by court martial or military commissions."40 Congress gave them jurisdiction over several other violations of law in the following year. After the North prevailed, Congress authorized their use as courts of occupation in the military districts of the conquered South. They were used most notably to try Lincoln's assassins and the commander of the Andersonville prisoner of war camp. According to a definitive study of military law, military commissions tried about two thousand cases during the Civil War, and about two hundred during Reconstruction.41
Several cases involving military commissions made their way to the Supreme Court during the Civil War. In Ex Parte Vallandigham, the Supreme Court held that it did not have the jurisdiction to hear a challenge to a sentence imposed by a military commission, and the Court did not hear another such challenge during the war.42 In Ex Parte Milligan, the Court held that the government could not try civilians on loyal Union territory by military commission, if the civil courts were open and if the civilians had not associated with the enemy. Implicit in this was that if Milligan had been an enemy combatant, not a civilian, a military commission could have tried him for war crimes. Lincoln's assassins were tried by a military commission convened by President Andrew Johnson and approved by an opinion of the attorney general. A federal court rejected a challenge to the use of the commission.43 The attorney general's opinion stated that long practice under the rules of warfare permitted assassins to be tried and executed by military commission.44
With the end of Reconstruction, military commissions disappeared, though they were used sporadically in the Spanish-American War and World War I. World War II, however, witnessed the use of military commissions on an unprecedented scale, both to try war criminals and to administer justice in occupied Germany and Japan. Military commissions administering law and order in occupied Germany heard hundreds of thousands of cases.45 They were also extensively used to try enemy combatants for violating the laws of war, the most famous examples being the Nuremberg Tribunal that tried Nazi leaders after the war, and the International Military Tribunal for the Far East that tried Japanese leaders for war crimes. American military commissions tried three thousand defendants in Germany and a thousand defendants in Japan for "terrorism, subversive activity, and violation of the laws of war."46
World War II military commissions operated both abroad and in the United States. FDR's commission order sparked a lawsuit, and the resulting Supreme Court opinion supported the legality of the Bush military commissions. Indeed, FDR took far more liberties with the constitutional law of the day than the current administration does.
In the 1942 case of the Nazi saboteurs, eight Nazi agents with plans to sabotage factories, transportation facilities, and utility plants landed on Long Island, New York, and in Florida.47 All had lived in the United States before the war, and two were American citizens. When their capture was revealed, members of Congress and the media demanded the death penalty, even though no law authorized capital punishment for their crime. FDR decided to try them by military commission. On June 30 he explained to Attorney General Francis Biddle: "[T]he death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American government."48 Roosevelt was determined to execute the saboteurs. "Surely they are just as guilty as it is possible to be...and it seems to me that the death penalty is almost obligatory." Biddle and Secretary of War Henry Stimson were of the opinion that the plot was too undeveloped to warrant more than a two-year sentence for the plotters in an ordinary criminal court. Stimson was surprised to find that Biddle was "quite ready to turn them over to a military court." Over dinner with Justice Felix Frankfurter, he was equally surprised to learn that Frankfurter felt the same way.
Biddle summarized the advantages of a military commission for Roosevelt: speed, easier standards of proof, and the availability of the death penalty. Plus, he thought the defendants would be disabled from appealing to the civilian courts: "All the prisoners can thus be denied access to our courts."49 Biddle did not commit to writing another important consideration, secrecy, but he did confide it to Stimson. He wanted to keep quiet both the identity of the informant and the ease with which the Nazis had infiltrated U.S. lines. Biddle recommended that FDR issue executive orders establishing the commission, appointing its members, defining the crimes, and excluding federal judicial review. Roosevelt did so on July 2. The first executive order created the commission and defined its jurisdiction over aliens or foreign residents "who give obedience to or act under the direction of" an enemy nation, and attempt to enter the United States "preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war." He also ordered that the Nazis be barred from any other court.50 FDR's second order established the procedures for the military commissions. Only one paragraph long, they guaranteed "a full and fair trial," allowed the admission of evidence that would "have probative value to a reasonable man," and required a two-thirds vote for conviction and sentence.
Because th
e Bush administration patterned its order on FDR's, the critics of military commissions have only FDR to blame. But in truth, FDR's handiwork intruded more on civil liberties than Bush's, and under the law of the time was of more questionable constitutionality. In 1942, the governing case on the books was Ex Parte Milligan, requiring the government to use federal courts if the defendant has not associated with the enemy and the civilian courts are open. Military counsel for the Nazi saboteurs challenged the commissions on just this ground--that the military commission could not exercise jurisdiction because courts were open, the defendants were not in a war zone, and a military commission violated the Articles of War enacted by Congress.
FDR intervened in the case in unprecedented ways, undeterred by the news that the Supreme Court had agreed to hear the case. Before oral argument, the Supreme Court Justices gathered in conference. Justice Owen Roberts said Biddle told him FDR might order the execution of the saboteurs, whatever the Court might decide.51 Chief Justice Harlan Stone, whose son was working on the defense team, commented, "That would be a dreadful thing." Stone did not recuse himself, nor did Justice James Byrnes, who had been serving as an informal adviser to the administration. Justice Frank Murphy, who was at the conference in uniform as a member of the Army Reserve, did. Biddle himself argued the case and urged the Court to overrule Milligan. After two days of oral argument, the justices decided to uphold the trial of the prisoners by military commission. The great pressure on the Court was reflected in its decision to deliver a unanimous opinion on July 31, the day after oral argument, even though its judgment would not appear publicly until weeks later. The military commission began its trial the next day. Three days later it convicted the defendants and sentenced them to death. Five days later, FDR approved the verdict, though he commuted two sentences.
