Ethics of Military Tribunals

The Ethics of Military Tribunals

of Suspected Terrorists

Randy L Johnson

HSM 311: Ethics & Homeland Security

June 26, 2011

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While based on the United States Constitution and the Uniform Code of Military Justice, there is a possibility, while trying suspected terrorists, that natural human rights may be violated. It is a fact that terrorists are at war with the United States. Also, the rules of war are far different than the rules of societal criminal law. This is because some actions that are criminally wrong in society are not criminally wrong in warfare. Members of a military tribunal have both knowledge and experience to separate societal wrongs and military crimes. In a trial by jury, the jurists would not have the experience and knowledge to separate criminal actions and military actions. This paper will attempt to demonstrate why tribunals, are in fact, a more ethical approach to dealing with the adjudicating the guilt or innocence of known or suspected terrorists.

To understand whether a military tribunal is an ethical way of rendering justice for both the victims and the accused, one must understand what a military tribunal truly is and how it differs from a criminal trial, specifically a United States Federal Criminal trial. Section 818. ART. 18. JURISDICTION OF GENERAL COURTS-MARTIAL states: "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war." (UCMJ) Most believe that a courts-martial can only be brought against a member of the United States military. But a courts-martial can be convened for any person regarding the law of war. A tribunal is a type of courts-martial where in the accused is judged by a panel of 3, normally high ranking and highly experienced, military officers. This compared to a criminal trial where one has the opportunity of being judged by a peer jury, (but even in a civil criminal trial, the accused can request to have their case heard before a single judge). The military is also not the only body that uses a tribunal system. The United States Immigration uses Boards that operate in the same manner as

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the military style tribunal. There is a caveat with the immigration style board or commission, and that is that there rulings can be over ruled on appeal based on the rules of evidence. (Fisher, 2009).

A major difference in a tribunal is how a verdict is rendered. In a jury trial, the jury must come to a consensus and the decision must be unanimous. But in a tribunal, it only need be a majority, or 2 vs. 1. The only time that it must be unanimous is if the verdict is the death penalty. When the highest penalty is to be rendered, then the highest standard needs to be employed.

In a federal or state court, evidence from unreasonable searches and seizures can be excluded if it is found that the search violated an individual's Fourth Amendment rights. In a search there is also supposed to be a warrant to secure said evidence. The exceptions to these rules can be that the evidence was in plain sight or that it would have been discovered during the normal criminal investigation. In a tribunal there is no provision or procedure that would bar the search or seizure. In the case regarding illegal combatants the constitution is not really an issue. It would be unreasonable to insist that a warrant be issued to search a building in let's say Baghdad. "In a military tribunal, rules of evidence are not applicable, nor necessary, because trained military jurists can, like other judges, weigh all the evidence." (Dean, 2001)

Most of the evidence that is obtained and secured comes from areas that are not governed by the United States Constitution. There are those though, in our government, who feel that since these combatants should have the same protections as United States citizens being arrested

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for a crime inside our national borders. It could be considered proper only if the illegal combatant is a United States Citizen, who has decided to fight alongside if the terrorists. The argument could be made that an individual does not give up his rights in those types of situations. The ability to use or not use this evidence would be the Secretary of Defense. It would also not be ethical to allow the enemy the access to how much of this evidence was obtained. In a civil criminal trial the extent of knowledge of how evidence was obtained would allow the enemy to be able to take action against those who provided it and could give them information that they should not be privy to.

The next area that has shown some concern both domestically and internationally is tied into the sixth amendment. This will include a speedy and public trial, the right to confront their accusers, by a trial by jury. As stated prior, this is a right afforded to United States citizens and legal residents or those who are here for a legal purpose.

In a federal court system the trial is to begin within 70 days after the incident or arrest. The accused can delay this by applying to the court for an extension which must be granted by a judge. Regarding the detaining of illegal combatants under the UCMJ has no provision that a tribunal be held at any specified length of time. The individual can be held or detained indefinitely. This became an issue when, Attorney General Holder, wanted to have a federal trial for those accused of planning and executing the 9/11 attacks. His basis is that this should be considered a criminal act and not a military act. Khalid Sheikh Mohammed admitted that he was the mastermind of the 9/11 attacks and that he was involved in some 30 other attacks. He also admitted that he was involved in additional plans that had not taken place. The information that

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would have had to have been produced, in a public federal trial regarding the extent of his actions, could have provided sensitive information that could assist in further attacks. This information would not be released in a tribunal and the proceedings being closed would not allow for the potentially unethical use of this information against the United States and troops fighting overseas. Mark A. Drumbl wrote an article and quoted Ruth Wedgwood that this could ""provide terrorists