Nearly a month ago, U.S. President George W. Bush ordered the Defense Department to begin setting up special military commissions to try selected defendants charged with war crimes arising from the 11 September terrorist attacks on the United States. Even before the rules for the commissions have been published, many civil libertarians have denounced them as contrary to America's tradition of open trials.
Washington, 11 December 2001 (RFE/RL) -- As the United States prosecutes its war against the Taliban and Al-Qaeda in Afghanistan, it also must consider whether to prosecute an American citizen who fought with his country's enemy.
John Walker of the U.S. state of California was found among Taliban fighters after opposition forces, aided by American troops, put down a deadly prison uprising outside the Afghan city of Mazar-i-Sharif.
Walker, recovering from a gunshot wound to the leg, is now being held at a U.S. military base in southern Afghanistan. Officials there say his status is that of a "military detainee," not a prisoner of war.
Air Force General Richard Myers, chairman of the U.S. Joint Chiefs of Staff, says Walker is providing useful information. Nevertheless, it appears the young American may face criminal charges, including treason, murder, giving aid and comfort to the enemy, and conspiracy.
According to Walker's parents, the young man became enthralled with Islam several years ago and traveled to the Middle East to learn more about the religion and Muslim culture. They say he eventually wound up with the Taliban in Afghanistan.
Some believe the mood in America will make it impossible to try him on a charge of treason. Despite a pervasive anger and sorrow over the 11 September attacks, they believe Americans would not approve of bringing treason charges against Walker. One such person is Walter Berns, who specializes in constitutional law at the American Enterprise Institute, a policy analysis center in Washington.
"Well, there'd be, I suppose, some public sentiment that this is a poor, young, confused man who had certain illusions about the world and so forth," he said. "And there, of course, are his parents here who are sympathetic people, and one should take all that into account."
Whatever Walker's fate, it is virtually certain that he would be tried in an American civil court, not in one of the military tribunals that U.S. President George W. Bush has ordered set up to hear war-crimes trials of foreign nationals.
It was nearly a month ago that Bush ordered the Defense Department to begin creating the tribunals. And even now, Americans are debating their value -- and their constitutionality.
On 6 December, it fell to U.S. Attorney General [Justice Minister] John Ashcroft to defend the tribunals before the Senate Judiciary Committee, even though the "commissions," as they are called, are the responsibility of the Defense Department. Ashcroft's Justice Department provides only advice in organizing the tribunals.
Ashcroft expressed disdain for some of the harsher criticism that the commissions have faced: "The Department of Justice has sought to prevent terrorism with reason, careful balance, and excruciating attention to detail. Some of our critics, I regret to say, have shown less affection for details. Their bold declaration of so-called facts have quickly dissolved upon inspection into vague conjecture. Charges of kangaroo [one-sided] courts and shredding the constitution give new meaning to the term 'fog of war.'"
There are several aspects of the tribunals that worry some civil libertarians. One is that some evidence against a defendant could be kept secret if that evidence might compromise U.S. security. In civil trials in America, all evidence must be made public.
Another complaint is that the only avenue of appeal is to the defense secretary. Verdicts in civil trials in the United States can be appealed all the way to the Supreme Court in Washington, the nation's highest court.
A third concern is that only a two-thirds vote by the military jury is required for conviction. American civil courts require unanimous votes for conviction in criminal trials.
Berns, of the American Enterprise Institute, acknowledged in an interview with RFE/RL that such tribunals create the opportunity for vindictive or otherwise untrustworthy leaders to misuse the commissions. But he said he trusts America's current leaders and senior military officials, and he added that extraordinary circumstances require extraordinary responses.
"These people [defendants before military commissions] are not guilty of committing crimes in the ordinary sense against the United States, and they're not being tried under the ordinary rules, they're being tried under the president's authority to make war," he said.
Roger Pilon emphatically disagrees. Pilon is a specialist in constitutional issues at the Cato Institute, another Washington think tank. He told RFE/RL that Bush's order directing the defense secretary to set up the military commissions includes language so broad and unspecific that they could eventually try people with only the faintest and unintentional links to terrorists.
"There's no definition of terrorist, and those who aid terrorists can include American citizens, although he says it's not to include American citizens, there's no reason why in principle it couldn't," he said. "The aiding of terrorists can include everything from, you know, renting them a room, providing them with assistance unbeknownst to you that it's going to be used for terrorist activities, and it can go on and on."
Likewise, he disagreed with Ashcroft, who says critics are not giving the president the benefit of the doubt. Ashcroft and his supporters say Americans have no reason to believe that Bush, Defense Secretary Donald Rumsfeld, or the judges presiding over a military commission would deliberately acquiesce in injustice for the sake of expedience.
But Pilon said trust is not the issue: "It isn't a matter of trusting these people or not trusting these people. It's a matter of whether we go to the rule of man, as distinct from the rule of law. I don't want the rule of man even under the most benevolent of kings. I want the rule of law. And that's the big difference, and that's what the Ashcrofts of this world don't seem to understand."
But Pilon acknowledged that no one yet knows how the military commissions will work. The Defense Department, with the assistance of the Justice Department, is still drawing up the regulations that will govern them. And there is no word yet on when these regulations will be published. Until then, all opinions are based on speculation.