Col. Ralph H. Kohlmann

UNCLASSIFIED

NAVAL WAR COLLEGE

Newport, R.I.

FORUM SHOPPERS BEWARE THE MISMATCH BETWEEN THE

MILITARY TRIBUNAL OPTION AND UNITED STATES NATIONAL

SECURITY STRATEGY

Ralph H. Kohlmann

Lieutenant Colonel, United States Marine Corps

The contents of this paper reflect my own personal views and are not necessarily endorsed by the Naval War College or the Department of the Navy.

1 March 2002

[*2]

Introduction

Americans reacted to the events of September 11, 2001 in true American fashion. First, individuals on the scenes of the attacks at the World Trade Center and the Pentagon engaged in heroic and selfless rescue efforts on behalf of those injured or in harm’s way. Next, as the dust settled, and as lifetimes of mourning began, we started planning and acting to prevent further acts of international terrorism, to identify the wrongdoers and administer justice. On November 13, 2001 President Bush surprised most observers by announcing the authorization of military tribunals for the trial of crimes associated with terrorism against the United States by members, aiders or abettors, or coconspirators of the organization known as al Qaeda.[1] Support for the president’s overall handling of the terrorist crisis has been extremely high. The executive order regarding the tribunal option, however, has engendered ongoing criticism.[2] Immediate concerns were raised by domestic experts from a variety of disciplines concerning the constitutionality of the prospective tribunals and their implications with regard to civil liberties in the United States. Subsequently, the debate expanded to include international concerns about both the fairness of the prospective proceedings, and the treatment of potential defendants held by United Stales forces in Guantanamo Bay, Cuba.[3] [*3]

Since announcing the tribunal authorization, the White House has campaigned steadily on behalf of the operational necessity of the tribunal option, and the Department of Defense has described evolving tribunal rules that will provide substantially more procedural safeguards than were originally envisioned by tribunal critics. Considerable effort has also been expended to convince onlookers that the treatment of detained suspects s appropriate in light of practical security concerns. Unfortunately, the procedural fairness of the prospective tribunals arid the precise conditions of the suspects’ “pretrial confinement” are transient concerns that may he obscuring policymakers view of matters of more enduring importance. With all the fuss about matters ranging from rules of evidence to curtains for jail cells, little discussion has been afforded to the fundamental mismatch between the proposed ad hoc nationalistic proceedings and the United States’ broader National Security Strategy.

One cause of this “non-discussion” is the fact that the Bush Administration has not clearly defined its national security strategy in classical terms. Analysis of the United States’ method of operation in the international arena in the recent past, however, describes a de facto strategy of cooperative selective engagement In accordance with this pattern, President Bushes call for international unity against terrorism implies an intent to both help and depend on other nations to address a long-term transnational problem. A unilateral, decision to employ nationalistic military tribunals on the other hand is more reflective of a national security strategy of primacy. And while the United States can surely do as it wishes with regard to the impending prosecution of al Qaeda terrorists, American policy makers should more fully consider whether the benefits of self-interest in this case will justify jeopardizing the potential for international cooperation in the [*4] difficult times ahead,

National Security Strategy and the War Against Terrorism

The decision concerning the proper forum for prosecuting allegation of misconduct associated with international terrorism is simultaneously driven by specific circumstances and broader questions of national security affairs. If the campaign against international terrorism is viewed as a war effort, then several fundamental concepts of military theory are relevant to the analysis. Foremost is the precept that in wartime decision making, furtherance of policy aims must dominate over expedience in the realm of operational strategy.[4] Stated differently, plans for dealing with specific situations, even extraordinary situations, must be in accord with broader concepts of war aims that transcend the factual boundaries of any single operation or campaign. This is especially true if the war aims are extensive, or if the war is expected to be lengthy in nature, or if the war involves collaboration with other nations who enter a coalition with their own varied sets of political expectations and pressures. History provides ready examples of arguably good strategic decisions that proved disastrous to war efforts because of a mismatch between the effects of situational strategic action and the broader aims of the implementing nation [*5] or coalition.

For example, the Japanese decision to bomb Pearl Harbor reasonably furthered Japan’s strategic interest in severely damaging the American battle fleet. By late 1941, military officials in Japan had determined that war with the United States was inevitable. Japanese leaders assumed that their program of expansion in order to Secure the resources of Southeast Asian territories would soon prompt a military response in defense of Anglo-American interest in that same area. Japan had previously defeated a nation of superior size and resources in the Russo-Japanese war following a surprise attack of the Russian fleet at Port Arthur. That surprise attack was followed by a relatively short war, of limited effort, that led to a negotiated peace on terms very favorable to Japan. With this blueprint for success apparently validated, the Japanese decided that a strong first strike at Pearl Harbor could lead to a similarly short war and negotiated settlement with the United States.

Unfortunately for the Japanese, they failed to recognize that several factors made a limited engagement and negotiated settlement with the United States a fanciful outcome. First, the Japanese had allied themselves with the Nazi regime that was pursuing a war of unlimited aims against the United States and its allies. Additionally, well before Pearl Harbor, the United States had agreed with the British at the ABC Conference that in the event of war with both Germany and Japan, the Anglo-American alliance would pursue complete defeat of their enemies before agreeing to termination of hostilities.[5]

The same historical setting also provides an example of how subordination of [*6] immediate strategic preferences in the name of adherence to collective war aims has redounded to the benefit of the United States. Following the bombing of Pearl Harbor there via; significant interest in military, political and popular circles for an immediate and full effort against the Japanese in the Pacific theater. Despite these pressures, however, President Roosevelt abided by the agreements previously made with the British at the ABC Conference to work together to “defeat Germany first” before engaging in full scale offensive operations in the Pacific. Adherence to this larger war aim, despite the shock and resulting anger occasioned by the Pearl Harbor attack, is credited by historians as being a key factor in the Grand Alliance’s ability to prevail over the combined forces and considerable momentum of the axis of evil in World War II.[6]

Regardless of the forum choice, the trial of alleged terrorists is not an end unto itself.

Any prosecution of Osama Bin Laden, or any number of his associates or followers, should be considered for what is would be, that is, one small part of a larger war against the phenomena of international terrorism. In the grand scheme of things, al Qaeda is the current symptom, and international terrorism is the disease. At this point, al Qaeda may be an essentially vanquished foe. The threat to national security posed by international terrorism, however, persists.[7] As such, any decisions for dealing with the prosecution of al Qaeda members should not be dealt with as an end unto themselves, but rather as a small piece of the larger problem Additionally, actions with regard to the terrorists as an immediate concern must be in accord with the national security strategy for dealing with [*7] the terror threat in the long term.

Four generally recognized grand strategies compete in the public discourse to describe the United States approach to international security issues: neo-isolationism; selective engagement; cooperative security; and primacy.[8] None of these rand strategies provide a template for determination of subsequent strategic choices in the face of unfolding world events. Identification of a national grand strategy does, however, provide a helpful compass bearing to facilitate unity of effort between military, diplomatic and economic instruments of state and prevent counterproductive action in the name of international expedience. Without reference to an identified grand strategy, security mailers arc more likely to be dealt with sequentially, incrementally and, alas, inconsistently.[9]

As was the case with the Clinton administration and his father’s administration, the current President Bush has avoided articulation of a national security strategy in classic grand strategy terms. Positive “spinmeisters” for the administration might argue this non-policy allows for appropriate strategic flexibility in a complex world. Unfortunately, such deliberate ambiguity provides little in the way of a guiding principle for real life matters such as military procurement decisions, or when to employ the use of military forces or whether to conduct ad hoc nationalistic tribunals for alleged acts of criminal misconduct associated with international terrorism.

The words of the past several administrations do not provide a clear description of the [*8] United States’ grand strategy. Analysis of the United States’ method of operation in the international arena over the past several years, however, describes a de facto national security strategy of cooperative selective engagement. In cases ranging from Iraq’s invasion of Kuwait to ethnic and nationalistic wars in the former Yugoslavia and Kosovo, to the current operations in Afghanistan, the United States bas chosen to use military force only in eases affecting United States national interest and only within the framework of a coalition of nations. Given the vast disparity in resources between the United Stales and most of its coalition partners, often the United States’ most significant gain in a coalition agreement comes in the form of international legitimization for its course of planned operations. For while the United States may have sufficient resources - to periodically conduct a wide range of limited operations, we have apparently been unwilling to risk the cost of major regional confrontations that might result if we acted without proper political isolation of our chosen adversaries.

Selective engagement strategy is realist in nature in that it recognizes that defense resource are scarce. As a practical matter, it is not economically feasible for the United States to muster sufficient power to unilaterally maintain international stability for a sustained period of time.[10] Pursuing a selective engagement strategy in a collaborative fashion recognizes that that Americans would be unwilling to sufficiently increase contributions in terms of lives or money such that the United States could assume global police duties or single-handedly dominate the world to force acceptance of sustained [*9] United States primacy.[11] Accordingly, the United States has chosen to conduct military operations by coalition as a matter of routine.

By design, the modern coalition system is more responsive and flexible than earlier generations of cooperative alliance systems. And while movement away from a structured set of alliances arguably lessens the possibility of a nation being dragged into an unwanted conflict,[12] the flexibility of ad hoc coalition politics carries with it the need to remain sensitive to the concerns of potential coalition partners. This is especially true in the case or the looming long-term effort against international terrorism wherein the list of potential coalition partners spans a broad range of political, cultural and religious fault lines.[13]

Noted political scientist James N. Rosenau’s “funnel of causality” theory described five general categories of factors that influence a nation’s foreign policy decision making They are: the external (global) environment; the societal environment of the nation; the governmental setting; the roles played by the central decision-makers; and the individual characteristics of the foreign policy making elites.[14] The external environment category draws attention to the reality that United States behavior will be viewed by other nations through different lenses than through those which it is perceived by members of the American society. This theory also recognizes, and should remind us, that policy decisions in the international realm affect a variety of stakeholders whose interests and [*10] responses often extend well beyond the apparent boundaries of a current policy issue.

The foreign policy decision making process operates best when the combination of societal, governmental role and individual sources bring a full range of viewpoints into a debate that are considered along with the predicted responses of external actors The emotionally charged events of September 11th have created an extraordinary level of political unity within the United States. Unfortunately, what may be descried as a powerful blend of domestic anger, urgency, solidarity and determination have also introduced a damaging measure of group think and narrow-sightedness into the decision making process. Reasonable concerns that should exist about international disapproval of an ad hoc military tribunal process have been swept aside or lost in less valid debates over the legality of such proceedings under United States law or the classification of the potential defendant during their pretrial detention in Cuba.

It’s Better to Look Good Than to Feel Good

The United States operates effective criminal and military justice systems that have been constructed and improved over the course of hundreds of years. Yet at a time when international credibility is a valuable commodity, the Bush administration has directed creation of an ad hoc trial process whose results will certainly be criticized regardless of their actual efficacy. Putting the relatively ancient cases of Nazi saboteurs and Lincoln assassins aside, the idea of trying alleged terrorists at military, tribunals was lust raised by then Attorney General William Barr following the 1989 bombing of Pan Am Flight 103 [*11] over Lockerbie, Scotland.[15] At that time, however, prospect of military tribunals was never a realistic possibility. Even when the suspects were identified as Libyan intelligence agents, they remained under Libyan protection for years until an agreement was reached that the trial be conducted by a panel of Scottish judges at a neutral national site in the Netherlands. Importantly, however, a negotiated international agreement on a trial forum was reached and ultimately a joint trial was concluded in January, 2001 with one of the. suspects being found guilty of charges related; to the bombing and one suspect being found not guilty.[16] The convicted terrorist received a 20-year prison sentence.

The military tribunal option was also not employed for the prosecution of the first World Trade Center bombing suspects. Following the February, 1993 truck bomb attack, six co-conspirators hailing from several middle eastern nations were prosecuted in New York’s Federal District Court. MI six were convicted of charges stemming from the conspiracy, and all received the same 240-year prison term and $10 million dollar fine.[17]

In the wake of the September 11th attacks, the Former Attorney General again floated the military tribunal option through his contacts in the younger President Bush’s administration.[18] The tribunal option was seen as a vehicle to address several concerns associated with possible prosecution of alleged terrorists in the forthcoming campaign against international terrorism. Given the nature of the likely defendants’ al Qaeda connections, it was feared that a federal district court trial would place judges and civilian [*12] jurors at too great a risk.[19] Concerns were also raised about the admissibility of evidence gathered b the intelligence community and the ability of Federal Prosecutors to secure convictions within the framework of the Federal Rules of Evidence.[20] Finally, there was a concern that disclosure of intelligence information in an open court would compromise the long-term anti-terrorism campaign.[21] It is unclear what level of staffing preceded the adoption of the tribunal executive order. It is clear, however, that the administration rushed to get the initial announcement of the option in place. By the beginning of November 2001, President Bush was pressing his staff to get the tribunal process rolling “before things started going well [in Afghanistan.]”[22] Although it is reportedly the final product of 18 preliminary drafts, the tribunal authorization order displays a striking lack of concern for the appearance of propriety in the contemplated trial process. After a brief restatement of the obvious that international terrorism poses a continuing threat to the United Slates and its allies, the President simply states “that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United Stales district courts.”[23] This is not a measured proclamation that certain rules of law and practice will have to give way to unusual concerns that may be presented in the trial of alleged terrorists. To the contrary, the order essentially states that even basic notions of due process (the legal word for fundamental fairness) will not be a required element in the tribunal process. [*13]

In a special report issued shortly after the announcement of the tribunal option, David Scheffer critiqued what he viewed as the eight viable options for prosecuting international terrorists.[24] The options include: U.S. Federal Court; U.S. Military Court (Courts-Martial); U.S. Military Commission (the tribunal option; Foreign National Court (like the use of the Scottish courts for the Pan Am Flight 103 cases); United Nations Security Council Ad Hoc International Criminal Tribunal (like the on-going proceedings arising from events in the former Yugoslavia and Rwanda); a coalition treaty-based criminal tribunal (like the Nuremberg or Tokyo tribunals following World War II); a special Islamic Court; or UN administered courts in Afghanistan.[25]

Scheffer’s report describes the benefits and di.cu1ties associated with each of the forum options. He properly points out that an analysis of a forum option includes not only an assessment of the effectiveness of a trial system, but also a determination of the political implications of its use. For example, although there is great appeal in extending the jurisdiction of the existing United Nations war crime: tribunals to encompass the prosecution of alleged al Qaeda terrorists, there would be “enormous pressure from certain governments to (then extend jurisdiction of the terrorist tribunal to all coalition [*14] military actions in the campaign against terrorism and to the conduct of Israel in the Middle East.[26] Similarly, even if a special Islamic court could provide reliable assurances of effective prosecutions in the current situation, United States acceptance of such a forum could prove problematic if that court then sought to apply its jurisdiction to United States or Israeli citizens for alleged terrorist activities.

A full discussion of the various forum options is beyond the scope of this essay. Scheffer’s report concludes that the practical and political problems associated with the United Nations, coalition and foreign court options leave the United States national court options as the most viable alternatives for potential prosecutions.[27] While that conclusion may be happily in accord with United States policy makers wishes to retain as much control over the proceedings as possible, the political implication screening discussed above should still be applied to the selection of a particular United States national trial process. In this regard, debates about the ultimate or actual fairness of these proceedings largely miss the point.[28] The current campaign against terrorism is not about any single case or set of cases that may be prosecuted in the days to come. Instead, the issue at hand is a contest between the world’s civilized societies and lawless organizations who seek to disrupt the coalescence of different cultures into a peaceful and productive world community. Accordingly, it is not sufficient that the guilty axe convicted in a relatively [*15] fair trial in order for a long-term victory over terrorists to be achieved, the trial process must appear to be fair and not simply the result of the United States’ obvious ability to have its way.

Even a Good Military Tribunal is a Bad Idea

Whether alleged terrorists are tried in U.S. military courts, or military commissions, or U.S. Federal District Court, claims of “hometown” or “victors” justice are sure to be attached to the proceedings. That being said, the platform of likely critics of American action in this regard can be significantly weakened by selecting the national forum least susceptible to serious jurisprudential criticism. The United States Federal District Courts are the best option emerging from this sort of analysis.

The Bush Administration argument in favor of the tribunal option appears to be most firmly rooted in an understandable desire to secure the conviction of people who really are guilty of serious crimes and a concurrent desire to safeguard classified information. Any lawyer would agree that there is a “risk of litigation” inherent in any trial process. Assuming, however, that each of the established United States justice systems conduct effective trials, the results of prosecutions in the several national forum options should be largely the same. As a practical matter, the military rules of evidence used in courts- martial practice are a near verbatim reflection of the federal rules of evidence used in federal district courts. In turn, notwithstanding the tribunal executive order’s ill-advised repudiation of the applicability of principles of law and generally recognized rules of evidence, it is likely that the rules finally adopted for the conduct of any U.S. military [*16] tribunal will be largely in accord with fundamental jurisprudential principles.[29] For example, preliminary reports about draft tribunal rules indicate that: defendant’s will have the right to counsel, defendants will have the right to appeal; the presumption of innocence will apply until an accused is proven guilty beyond a reasonable doubt; and that except for portions wherein classified material will be discussed, tribunal sessions will be open to the public.[30] The “public trial” aspect of civilian proceedings also gives way in the case of classified material: Classified information is already protected from disclosure in civilian trials by the Classified Information Procedures Act.[31]

One specific concern voiced about conducting the al Qaeda prosecutions in federal district court has to do with the admissibility of evidence gathered by intelligence agencies. The argument suggests that much intelligence information is “inadmissible hearsay” ad that the government might have a hard time proving its case in an established national court forum.[32] As a practical matter however, the application of the hearsay rule in United States courts has become increasingly flexible. There are numerous longstanding exceptions to the rule’s general prohibition against the use of out of court statements. Additionally the now codified residual hearsay exception common to both the Federal Rules of Evidence and the Military Rules of Evidence provides for the admission of evidence that would have at one time been considered hearsay but is: (A) [*17] offered as evidence of a material fact; (B) more probative on point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and (C) the interests of justice will be best served by admission of the statement into evidence.[33] Given the increasingly open nature of United States trial practice in this regard, one former federal prosecutor has commented: “It’s almost inconceivable that a military tribunal could allow evidence to be admitted more easily and still claim to be fair.”[34]

Beyond the rules issue, tribunal advocates also suggest that civilian judges and juries should not be endangered by participation in a trial process involving international terrorists; This sort of argument cannot survive even superficial scrutiny. The successful use of civilian judges and juries in years of organized crimes prosecutions, not to mention the first World Trade Center bombing case, suggests that the existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends. For when the Executive Branch substitutes a panel of military officers in the civilian judge or jury’s role as trier of fact, a number of irrefutable appearance issues are created.

If one is unsure about whether military tribunals will have credibility problems in the international community, one need only consider the plight of traditional military justice practice in our own country. The United States court martial system is a virtual mirror of federal district court in terms of its rules of evidence and burden of proof. The rules of [*18] procedure governing United States courts-martial are created by the Congress and have been regularly validated during appeals of courts-martial cases to the United States Supreme Court However, despite the sound institutional foundation and certification of the United States courts-martial practice, the system is still subject to chronic criticism and mistrust within our own country because of the lack of clear systemic independence for military judges.[35] Military judges are appointed by the judge advocates general of the respective armed service and operate outside normal military chains of command during their judicial assignments. However, all military judges are subject to return to duty under the authority of the same commanders against whom some of their rulings may have been rendered. Not insignificantly, these commanders also comprise much of the pool of senior officers who sit on promotion boards that will consider the military judges’ records for promotion during or after the officer? judicial assignments have been completed. This same apparent lack of independence will exist for any military officers appointed as judges or panel members for the prospective military tribunals.

In reality, there is no evidence that the military judge appointment and evaluation system has any actual effect on the fairness of military trials or the decision making process of military judges. However, despite the Department of Defense’s own confidence in the integrity and professionalism of ifs military judges, this aspect of the military justice system is repeatedly attacked by critics of the system.[36] Once this discussion is taken beyond the friendly confines of the United States, this sort of criticism [*19] will only increase On the other hand, although it is still a national trial process, the Federal District Court system has a significant leg up on any sort of military adjudication system in that Federal District Court judge have lifetime tenure, Similarly, civilian juries who are selected from and return to private lives are immune from claim of working for the same company as the prosecutor. It should be stressed that none of this suggests that Federal District Court proceedings are any fairer, or better than a military court-martial. But in the world of international politics and coalition building, improper perceptions and appearances are a reality that cannot be dismissed simply due to a lack of evidence.

Just Because You Can, Doesn’t Mart You Should

Unnecessary use of military tribunals in the face of reasonable international criticism is an ill-advised move toward unilateralism at a time when the long term campaign against international terrorism requires more than United States leadership. The shock of September 11th may reasonably cause policymakers to view international terrorism through a lens of temporal urgency. But the solution is not as simple as finding and punishing, or even killing, Osama Bin Laden and all the people associated with perpetrators of the events of September 11th. In dealing with the terrorists de jure, we must not allow currents operations to compromise our ability to deal with a broad range of international partners in the cases of other existing or future terrorist entities.

Although not clearly defined by the Bush administration, America’s de facto grand strategy for crisis resolution of national security issues is one of selective engagement [*20] supported and legitimized by formation of ad hoc international coalitions. Our continuing ability to attract support from nations across a wide cultural and political spectrum rest on the credibility of the United States as a fair and benign super power. Commentators have noted that part of the reason why a remarkable trans-cultural international coalition was able to be quickly constructed in the wake of September 11th was the perceived integrity of the United States in its stated intention to bring suspects to justice in courts of law.[37] This sort of credibility should be neither squandered, nor taken for granted.

Given the inextricable linkage between the war against terrorism and the prosecution of captured suspects, the forum choice for the trial of alleged terrorists should not be discussed as an issue unto itself. Credibility in international politics is often premised upon a series of apparently unrelated policy choices. For example one may reasonably argue that America’s ability to gain the cooperation of moderate Islamic States such as Pakistan in the current anti-terror campaign was in large measure due to the elder President Bush’s adherence to the limited Desert Stoma coalition goals of expelling Iraqi forces from Kuwait From an operational perspective, it is clear that on 27 February 1991, Gulf War coalition forces were well positioned to pursue fleeing enemy forces into Iraq and possibly even to occupy Baghdad and attempt to force the removal of Saddam Hussein from power. Instead, the hostilities were halted on what some authorities perceive to be unnecessarily favorable terms for Iraq that allowed Saddam Hussein to remain in power as e continuing threat to stability in the region. After the war, the elder Scheffer, supra note 24 at 2. [*21]

President Bush himself stated that he had miscalculated in thinking that the crushing defeat suffered by Iraqi forces and the domestic upheaval within Iraq would lead to the toppling of Saddam’s government without further action by the United States. However, this sort of Monday morning quarterbacking overlooks a number of points that made the Gulf War a successful limited war and a stable foundation for other limited actions by the United States in cooperation with Muslim nations.

As will hopefully be the case in the terror war, a significant aspect of the United States’ success in the Gulf War was the formation arid maintenance of a coalition that spanned abroad political, religious and ideological spectrum. The Gulf War coalition was an unlikely collaboration of effort, based on pursuit of limited objectives that did not include the removal of Saddam Hussein from power or the invasion of Iraqi territory.[38] Even though the United States may have wished for more; agreement on these objectives obtained world-wide political legitimacy for the coalition’s efforts and isolation of Iraq from its hoped for supporters.

On 27 February 1991, Saddam Hussein agreed to the demands issued by the relevant United Nations Security Counsel Resolutions.[39] The Iraqi’s had been evicted from Kuwait and the sovereignty, independence and territorial integrity of Kuwait had been restored. If the United States had decided to unilaterally proceed into Iraq in March of 1991, it would have moved beyond its well formed plan of limited war in response to Iraqi aggression, and away from its well constructed scheme of United States led friends [*22] versus an isolated Iraq.[40] The elder President Bush correctly resisted the temptation of operationally logical pursuit of retreating Iraqi forces in order to adhere to the limits of the Desert Storm coalition’s stated wax aim of expelling Iraqi forces from Kuwait. Shortsighted critics may persist in describing that decision as a missed opportunity. A Longer view of events, however, suggests that United States restraint in that instance established a measure of credibility in the Islamic world that has proved valuable in attracting the support of moderate regimes in nations such as Pakistan w Operation Enduring Freedom. It is likely that moderate Muslim State cooperation would have been less forthcoming if the United States had undertaken unilateral pursuit into Iraq at the end of Operation Desert Storm.

Conclusion

Careful students of world politics know that hegemony has never proven to be a winning strategy. … Until recently, American policymakers have acted as 1f the United States is somehow exempt from this pattern. But if recent events are any indication. this is wishful thinking.[41]

Just as the United States had the power to proceed into Iraq in March of 1991, it now has the power to prosecute suspected terrorists in ad hoc military tribunals, And just as there was potential benefit in a unilateral offensive into Iraq, convictions might be more [*23] easily secured arid secrets more easily guarded in trials conducted by military tribunals. However, if we view international terrorism as a world issue in which we expect the assistance of others, we should resist the easy solution of conducting ad hoc proceedings just because we can. If we elect to conduct national trials instead of seeking an international forum, we should seek to maximize the appearance of fairness so as to limit avenues for complaint of victor’s justice. The appearance of fairness may best achieved by prosecution of terrorist suspects in United States Federal District Courts.

The members of al Qaeda may or may not “deserve”[42] trials in a time-tested and jurisprudentially sound forum. However, the world-respected reputation of United States criminal courts has no been built nor maintained for the benefit of any evil person. For the benefit of rigorous due process is reaped not only by those that stand accused in our courts, but also by the larger portion of our society that never stand accused., but have trust and confidence in the fact that the government is both protecting them arid being as fair as possible. The use of an established court system at this critical time should not be viewed as a action on behalf of accused terrorists, but rather as a representation to needed international partners that the course of our ship of state is steady, and properly charted for the rough waters ahead.

[1] President Issues Military Order; Detention, Treatment and Trial of Certain Non-Citizens in War Against Terrorism, White House News Release, (www.whitehouse.gov/news/releases/2001/11/20011113-27.html) January 17, 2002.

[2] The criticism has transcended traditional party and ideological lines. See generally, Walter Shapiro. Bush’s Military Tribunal Order Needs More Polish (www.USAToday.com/news/e98/shapiro) January 17, 2002). Former President Carter also added his yoke to those criticizing the executive order, stating that he was “deeply concerned” the United States could weaken its international reputation and its ability to work for peace following the Afghanistan conflict. Ben Fox, Former President Carter Criticizes Military Tribunal Plan, The Sacramento Bee, December 6, 2001.

[3] Mackubin Thomas Owens, Consider the Latrunculi: Detainees or Prisoners of War? The Providence Journal, January 25, 2002.

[4] Carl von Clausewitz, one of the founders of modern strategic studies wrote: “Strategy is the use of the engagement for the purpose of the war. The strategist must therefore define an aim for the entire operational side of the war that will be in accordance with its purpose. in other words, be will draft the plan of the war, and the aim will determine the series of actions intended to achieve it: in fact, shape the individual campaign and, thin these, decide on the individual engagements.” Carl von Clausewitz, On War, translated and edited by Michael Howard and Peter Paret, Princeton, Princeton University Press, 1976, p. 177. See generally. Mackubin Thomas Owens “Thinking About Strategy,” Chapter 28 of Strategy and Force Planning, 3d ed., Newport, Naval War College Press, 2000.

[5] See generally, Richard Overy. Why the Allies Won, New York, W. W. Norton & Company, 1995. pp. 248- 55.

[7] Although al Qaeda is not a typical participant in a classical war scenario, concern for the post war implications of the victor’s actions should still exist. We should recall Carl Von Clausewitz’s observation that the results of war are never final. See Clausewitz, On War, supra note 4 at 80.

[8] Barry R. Posen and Andrew L. Ross, “Competing Visions for U.S. Strategy,” International Security, 21:3, Winter 1997, reprinted in Strategy and Force Planning, 3d Edition, Naval War College Press, Newport Rhode Island, 2000, p. 137. Professors Poses and Ross provide a full description of these four classic grand strategies and suggest that selective engagement is the proper choice for the United States in the post cold war era.