There may well be a case to be made for the use of military tribunals in cases of terrorism. For some, the interests of national security may trump constitutional guarantees of liberty and due process (I’ve heard it suggested before that “liberty isn’t much use if you’re not alive to enjoy it”). Granting this possibility, I present the case that advocates of this process must make in order to become convincing.
I: A working, operational definition of terrorism
In order to justify trying, convicting, and sentencing terrorists under a system of rules other than those described in the constitution, advocates of military tribunals will have to create a working and operational definition of terrorism — one that distinguishes it from other forms of criminal activity that we already deal with effectively in the civilian judicial system. Terrorism is vaguely defined by Merriam-Webster as the systemic use of terror as a means of coercion, but this will hardly do as a legal foundation for extra-constitutional handling of a “special” breed of criminal. Is terrorism defined by its target — that is, do a certain class of targets, such as government buildings, make an act “terrorism” — or by its motives? In the latter case, what motives would qualify as “terroristic”? Is a hostage situation terrorism if the hostage-taker has certain demands? Does a bomb threat to a school qualify as terrorism? And how, if the tribunal system is going to rely on usually-accepted rules of evidence and fact-finding, is the prosecution expected to prove motivation, particularly when these kinds of motives often have little direct connection to the crimes themselves?
II: Demonstrate the inability of the existing legal edifice in handling terror suspects
Handing terror suspects over to military tribunals represents a major expansion of executive power, and a subtraction of power from the judiciary. To justify this shift, advocates of military tribunals need to explain how the judicial branch is unable to effectively handle terror suspects, and further, why the supposed potential for “intelligence gathering” outweighs the people’s interest in a government limited in its ability to abrogate constitutionally-guaranteed human rights.
Further, the positive case must be made that military tribunals themselves can address whatever shortcomings exist within the civilian legal system. Contrary to certain strains of popular belief, the evidence does not suggest that tribunals are the foolproof terror-detectors they’re sometimes made out to be.
III: Explain the institution
As it stands now, military tribunals are exclusively the jurisdiction of the executive branch. Some new institutional arrangement needs to be created in order to guarantee that these tribunals will be somehow held accountable, and that the institution itself is stable. Returning to point I, the definition of terrorism must either be set in stone, to avoid a creeping expansion of the power of this new parallel justice system; or it must be fluid, in order to be useful to as-yet-unforeseen forms of terrorism. A gargantuan quandary faces anyone who choses either of these tracks. Beyond this, how can we inoculate this system from corruption and misuse?
So, there it is. Since it is the advocates for military tribunals who are making the case for a change to the system we have, I submit that it is their job to show the compelling need for them, and how they will actually benefit — rather than harm — the United States’ interests.