July 27, 2003
By Glenn Sulmasy
The latest controversy
in the case of the alleged "twentieth highjacker," Zacharias
Moussaoui, highlights why we should be using military tribunals,
officially known as "military commissions," for terrorists captured
during the war on terror.
Department of Justice
attorneys, in attempting to satisfy exaggerated concerns about the
use of such tribunals, have been valiantly attempting to try the
case within our federal court system. Giving Moussaoui a fair
civilian trial was supposed to "showcase" our criminal justice
system and how well it works.
The effort is failing
in large part because Moussaoui wants to abuse the discovery
process, and is seeking intelligence from another terrorist. In
their training manuals, such as one seized by authorities in
Manchester, England, al-Qaeda foot soldiers are ordered, if
captured, to exploit the many freedoms and protections our justice
system provides. Moussaoui has certainly been doing things by the
administration initially raised concerns about trying the case in
public courts, noting that classified information could be
compromised. These concerns were validated recently. Acting as his
own lawyer, Moussaoui sought to interview another suspected foot
soldier of Usama bin Laden, Ramzi Binalshibh.
lawyers said they couldn't allow two alleged terrorists to sit down
to discuss their legal cases without possibly compromising
classified information, destroying intelligence gathering efforts
or worse. They refused to turn over Binalshibh, who is currently
being detained abroad and interrogated for his self-proclaimed role
in the Sept. 11 attacks. As a result of Justice's concern for
national security compromises, the court may now hold the
government attorneys in contempt.
In this case, the
legitimate fear of compromising national security collides head on
with the normal court rules governing trial preparation. This
conflict between two valid concerns is exactly why the Article
III courts should not be used for war on terror cases. This is
one of the reasons the Constitution gives the president the
authority, in appropriate cases, to convene military
commissions. Congress also has formally enacted legislation to
support their use through Article 21 of the Uniform Code of
The law establishes
two pre-requisites for convening military commissions and trying
individuals before them: 1) that we are in state of war, and 2)
that the accused be suspected of violating the laws of armed
conflict -- e.g. be war criminals. Both of these requirements are
met with Moussaoui.
The United States has
been in a state of war with al-Qaeda since the first attack on
the World Trade Center in 1993. Since then we have engaged in
attacks and counter attacks both here and overseas (some limited,
some more aggressive) and remained in a state of belligerency.
Further, in interviews, videotaped messages and written literature,
al-Qaeda continues to claim it is conducting jihad against the
United States. Therefore, we are at war, whether Congress has
formally declared it or not.
The foot soldiers of
al-Qaeda have clearly been involved in violating the laws of armed
conflict, which prohibit the targeting of civilians -- the very
thing al-Qaeda did repeatedly on Sept. 11. Moussaoui, alleged to be
the twentieth highjacker who was supposed to attack either
Washington or New York City, is thus subject to military commission
In sum, Moussaoui is
suspected of being an unlawful combatant, working on behalf of a
belligerent non-state actor, who violated the law of armed conflict
during a period of war. As in virtually every conflict since this
nation was created, a military commission is the appropriate forum
for adjudicating such a case.
The Framers were aware
of the need for such courts more than 200 years ago. Let's transfer
Moussaoui to Guantanamo Bay, give him a fair hearing before a
military tribunal, and prevent him from further manipulating and
mocking the domestic American judicial system.
Appeared on FoxNews.com
The latest controversy in the case of the alleged "twentieth highjacker," Zacharias Moussaoui, highlights why we should be using military tribunals.
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