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December 6, 2023

Military tribunals: gallows of injustice

By NIKKO PRICE | November 9, 2011

This week marks the 10th anniversary of President Bush's order authorizing the use of military tribunals, a system of justice not used since 1942. His order to the Secretary of Defense called for the detainment of non-citizens accused of international terrorism and their subsequent trial at Guantanamo Bay. On Wednesday, the alleged mastermind of the bombing of the USS Cole, Abd al-Rahim al-Nashiri,which killed 17 U.S. sailors in October of 2000, will go before the military tribunal system reestablished 10 years ago.

Obama must reconsider this misguided policy. Military tribunals ought to be outlawed as they subvert our system of justice, disregard our court system, undermine our moral standing on the world stage, and undercut our objective in the War on Terror.

To legitimize military tribunals is to allow the president to hold men without charge and strip them of their rights to effective counsel, assumption of innocence, appeal, due process and habeas corpus. It is to promote a system that runs contrary to the system of justice we have upheld for our entire history.

This nation is founded on the principle, as President Kennedy described, "that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny." If this nation's government does not respect the laws it orders its citizens to obey, then the laws of our courts and the writ of our judges are rendered irrelevant. Any liberal democracy must practice what it preaches or it runs the risk of degenerating into anarchy and lawlessness.

With Obama's acceptance of military tribunals as a credible form of justice, he is, in effect, undermining the criminal courts of this country. By choosing the tribunals over the courts, he is ignoring the long history of success in criminal courts and their precedent in trying and convicting hundreds of enemy combatants: when Timothy McVeigh blew up a federal courthouse in Oklahoma City, he was tried and convicted in a criminal court. When Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, he was tried and convicted in a criminal court. And when Zacarias Moussaoui conspired to kill American citizens in the 9/11 attacks, he was tried and convicted in a criminal court.

They were all convicted in courts which respect the rule of law set by government, defend the doctrine of justice afforded by the Constitution and ensure the success of liberty ingrained in the fabric of history.

Furthermore, these courts are better for justice. A military tribunal is inherently unfair: military officers, not common citizens, are the judges and the jurors. Anybody with a basic idea of the workings of our adversarial system will see this as the ultimate trespass upon the exercise of the law. The purpose of a jury of peers is to provide an impartial body to render a verdict on a case in which it has no vested interest. But in a military tribunal, this integral safeguard of justice falls by the wayside.

Any claims of impartiality in the tribunal system are rendered null and void. A military officer with a vested interest in the outcome of the case will clearly have a tendency to rule against the defendant. With such a system, wrongful convictions are inevitable, and thus necessary justice is not upheld. The real criminal might be left at large, and the suffering families of the victims of his barbaric crimes will be stripped of their fundamental right to see justice done.

But military tribunals go even further than this: they don't just erode our code of law — they dismantle our morality as well.

After 9/11, President Bush called on "all Americans from every walk of life to unite in our resolve for justice and peace." It is our duty, he declared, to "go forward to defend freedom and all that is good and just in this world." And throughout the War on Terror, this has been our rallying cry. This country has pledged throughout its history to try men, not to lynch them — to listen to their cases publicly, not to shove them into some dark private basement and besiege them with an unrelenting military brigade.

To that end, to win this War on Terror, we must live up to these claims of moral rectitude and fidelity to the rule of law. We must be the example to the world. If we are to fail in this regard, if we continue to condone these military tribunals, then everything we stand for falls too. If we do not outlaw this system of injustice, we will lose this war because we will come to resemble the very enemy we seek to destroy.

Obama must reconsider his stance on military tribunals to promote the cause of true American justice and to prove to the world that this law-abiding society respects the dignity of justice and the destiny of democracy.


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