July 27, 2006 | Commentary on National Security and Defense

Trying talk on terrorist trials

"The first thing we do, let's kill all the lawyers." Attorneys cite that famous line, uttered by would-be revolutionaries in Shakespeare's "Henry VI, Part II," as proof of their critical role in keeping "a nation of laws" from devolving into anarchy. Those less enamored of the legal profession cite it as proof that lawyers often serve the interests of the elite at the expense of the general public.

Whatever your view, Shakespeare's line makes for good theater. In today's world, though, lawyers play an unprecedented role in life-and-death matters. For the first time, they are defining the rules of a war -- the long war on global terror -- even as it's being fought.

The rule of law is essential to a free society, but it is a compact, not a suicide pact. Sometimes in their zealous protection of civil liberties, advocates can go too far. The response of some civil liberty and human rights lawyers to the Supreme Court decision about whether we should try detainees at Guantanamo Bay for war crimes offers a case in point.

Recently, the Supreme Court ruled in favor of Salim Ahmed Hamdan, an al-Qaeda suspect held at the U.S. military base in Guantánamo Bay, Cuba. Hamdan had challenged the government's right to try him by the military commissions established by President Bush.

The Court said that Congress had to authorize the commissions and that trials had to be held in a "regularly constituted court that affords the judicial guarantees recognized by all civilized peoples," a standard outlined in the Geneva Conventions.

Administration critics trumpeted the ruling as a wholesale rejection of the president's approach to the war on terror. In reality, there's no fundamental disagreement between the administration and the court. The Pentagon thought it had set up an adequate process when it established the military commissions, and it thought Congress had implicitly authorized them by approving the tribunals in the Detainee Treatment Act in December 2005.

The Court merely said that congressional authorization must be more explicit.

Now, prisoner advocacy groups want to use the court's decision as an opportunity to lobby Congress to shape the commission procedures more to their liking.

That's where things stood when I was called to testify before the Senate Armed Services Committee recently-sitting on a panel with four lawyers who all argued that the commissions didn't come close to meeting the standards for a fair judicial process. They offered a laundry list of what "judicial guarantees recognized by all civilized peoples" meant. It was a list probably anyone who watches "Law & Order" would recognize.

But according to the exhaustive standards these lawyers laid out, the post-World II Nuremberg Trials would have been patently illegitimate. For example, they tried individuals for "crimes against humanity." The court had to invent a crime to cover the magnitude of Nazi atrocities. That, however, violates one of the criteria set out in the Senate hearings-trying individuals against laws that didn't exist before the crimes were committed.

In retrospect, of course, we recognize the Nuremberg Trials as completely legitimate -- and rightly so. They prosecuted a terrible evil and followed the rule of law.

What the Nuremberg Trials did not do was bend over backwards to give the defendants every advantage. The civilized countries that put together the trials understood the difference between their task and the job of prosecuting everyday criminals.

Governments have dual responsibilities -- protecting the interests of the individual and the state. Normal law codes rightly put the interest of the individual first and then modify laws as necessary for national security interests and military necessity. That's what the lawyers want to do at Guantanamo.

But this is case where we are trying to protect civil society from people who want to utterly destroy it. A different approach is required.

Rather than seek to amend normal legal proce­dures to address security concerns, we should draft military commissions that put the interests of national security first, and then amend them to ensure that equitable elements of due process are included in the procedures. That's what the government has tried to do, just as the framers of the Nuremberg Trials did. It was the right call then, and it's the right way now.

Congress doesn't need to listen to zealous lawyers. Congress can satisfy its legal and national securi­ty obligations by explicitly authorizing the pro­posed military commission process. That would let the Bush Administration move forward expeditiously and demonstrate once again its unswerving commitment to fight the long war aggressively, according to the rule of law.

James Carafano is senior fellow at The Heritage Foundation and co-author of "Winning the Long War: Lessons from the Cold War for Defeating Terrorism and Preserving Freedom."

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow