Just before the long week-end of the Fourth of July the Supreme Court shot down the military tribunals associated with the detainees in Guantanimo Bay, Cuba. Charles Lane of the Washington Post reported,
“The Supreme Court yesterday struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.
Brushing aside administration’s pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.”
While I look at the historical precendents left intact by the court such as being able to retain detainees until the end of a conflict or through other rules of war such as prisoner exchanges, I’m left to wonder exactly what it is our nation will do to address the special needs of terrorists.
Recently I’ve been reading the works of retired Generals and Fox News Commentators, Thomas McInerney and Paul Vallely. In their book, Endgame, published in 2004, they outline the need for a special legal process in our country. The term they use is the STC or Special Terrorist Courts. These courts if put into law by the United States Congress could solve the problem of brining justice to foreign nationals captured by American forces who are committing acts of terrorism against our country.
The Generals State the purpose of these courts would be:
“To expedite trials related to terrorism and keep them secure. In these courts, suspects initially classed as” enemy combatants” or criminals abetting terrorism would face a panel of three judges. The judges would both preside over the trails (with prosecuting and defense attorneys) and render the verdicts. There would be no juries (juries pose too many security-related risks) and there would be special rules to protect secret intelligence and counterintelligence information presented as evidence, protect witnesses who might be intelligence or law-enforcement agents or former terrorists, and provide security for judges and prosecutors. Another panel of judges would choose defense attorneys from volunteers who have substantial experience in criminal prosecution at the federal level; these attorneys would be vetted thoroughly and subjected to periodic security checks.”
While there are complications to this process lets look at the alternatives presented to us by the Muslim Extremists in the Middle East who also picture this as a war to the death between our cultures. They don’t even have judges when making judgment on beheadings like Mr. Berg. They passed judgment against Americans when they ran the planes into the world trade center. They passed judgment on our friends in Great Britain over a year ago when they blew up those busses and a year before that when they tried to influence the elections in Spain. I get that part. The Muslim Extremists already have their legal declaration of war to kill us all. The fact that we are more humanly preserving their lives in Guantanimo Bay, Cuba says even more about our culture and the mercy we even show our worst enemies.
I believe in due process of law and since our country has never had to go after a group of people that weren’t a wholly owned subsidy of a nation state, the war on terrorism presents some unique challenges in the arena of the courts as well as the battlefield. I would suggest that with the STC there are checks and balances associated with its operation. First, for the investigative sides relating to abuses of power the Justice Department should have a say in making sure the judges on that panel aren’t putting away innocent people. As with other justices, like the Supreme Court, these judges will be appointment by the President. Secondly, Congressional Oversight of the panel similar to that of the Foreign Intelligence Surveillance Court. Given this kind of power and secrecy to a court is as equally and potentially dangerous to the democracy as the military tribunal that the Supreme Court was trying to avoid. This power needs checks and balances and for that I commend the Generals for at least brining that idea to the public eye.
If only the bickering Congressmen and Congresswomen could get their game on. While they talk about their own political posturing to make themselves popular in an election year, they are failing to act on this judicial concept. They are attempting to capitolize on this Supreme Court Decision as it weighs against the Bush Administration for political points instead of taking the bull by the horns and doing something about the real problem. The Congres is rarely about real reform however, and the status quo and gridlock have been the name of the game on capitol hill for as many administrations as I can remember.
For that let’s leave this thought with a positive note. While the Congress investigated the events of September 11th, 2001 they had several suggestions for the executive branch of government and shortly after those suggestions were made to the Bush Administration they proceeded to make them happen. If the Congress can come up with a solution that will work by keeping our country safe, protecting our national secrets, including terrorist assets in networks we still are investigating, then something like the STC would work.