Title: Trying a Bin Laden and Others: Evaluating the Options for Terrorist Trials
Abstract: We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned challice is to put it to our own lips as well. (1) On November 13, 2001, in the wake of the September 11, 2001 tragedy and ensuing manhunt inside Afghanistan for al-Qaeda leader and alleged mastermind of the September 11 plot, Osama Bin Laden, President Bush signed a military allowing non-citizens to be tried for international terrorism before military commissions (the Order). While the recently promulgated rules improve how such commissions will function, the use of military commissions for terrorism trials does not seem sound. Alternative and preferable options include trying terrorists in U.S. federal court--as the United States has done successfully, and is doing for the trial of Zacarias Moussaoui--or creating an ad hoc international terrorism tribunal. Trial before an international tribunal could create the strongest statement that terrorism is universally condemned, and would be the most likely to result in widely accepted judgments. Part I of this article examines the use of military commissions to try suspected terrorists. Specifically, Part I.A examines the President's Executive Order authorizing military commissions and the recently promulgated rules for such commissions. Part I.B examines past use of military commissions in contexts such as the Revolutionary War, the Civil War, and World War II. Part I.C briefly examines past terrorist trials in U.S. and foreign courts. Part I.D raises questions about the scope of the Executive Order and whether there is precedent for trying terrorists using military commissions. Part I.E examines how trial procedures will be curtailed under the Executive Order and evaluates whether such abbreviated trial practices are necessary. Part I.F examines the perception that using such tribunals could create and how that perception may impact U.S. relations, future terrorism, and the trials. Part II examines the alternative option of trying terrorists in a U.S. federal district court. Specifically, Part II.A examines some procedures available in federal district court trials. Part II.B examines the benefits of using an established trial mechanism. Part II.C examines the appearance of legitimacy of such domestic trials. Part III examines another alternative, the creation of an international tribunal to adjudicate the crime of terrorism. Specifically, Part III.A examines some procedural mechanisms employed by international tribunals. Part III.B examines the crimes over which such a tribunal might have jurisdiction. Part III.C examines the appearance of legitimacy of an international tribunal. Finally, Part III.D examines whether such a tribunal should be modeled on (a) the International Tribunal for the Former Yugoslavia (ICTY) (2), the International Criminal Tribunal for Rwanda (ICTR) (3) or (b) the International Criminal Court (ICC), which soon will come into existence. (4) This article concludes that suspected terrorists should be tried before a federal district court or an international tribunal created for that purpose, rather than a military commission. I. TERRORIST TRIALS BEFORE MILITARY COMMISSIONS A. The Executive Order Calling for Military Commissions The Executive Order (5) signed by President Bush on November 13, 2001 states that subject to this order shall be tried by military commissions for violations of the laws of war and other applicable laws. (6) Section 2(a) of the Executive Order defines any subject to this order to include non-citizens whom the President determines from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al-Qaeda; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. …
Publication Year: 2002
Publication Date: 2002-03-22
Language: en
Type: article
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Cited By Count: 1
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