John Yoo, a former top lawyer in the Bush administration, has a simple remedy for the Supreme Court decision striking down the military tribunals created for war crimes trials at Guantanamo. Congress, he says, should pass a law overruling the Supreme Court. From a legal point of view, that is not entirely implausible, and given the breadth of the court’s ruling, the administration may be tempted to try to show the court who’s boss.
But that would be a mistake. First, it’s a political loser: Even prominent Republican senators like John Warner of Virginia and Lindsey Graham of South Carolina have made it clear they think some changes are in order. Second, it would delay any trials indefinitely, until the courts can decide whether it’s constitutional–which it may not be.
So the real question is not whether to adopt changes, but which ones. The court ruled the Pentagon’s tribunals illegal because they don’t follow the rules established for trials by the Uniform Code of Military Justice. Critics, however, rightly note that in some respects, those rules would be absurd in this context.
They require, for instance, that suspects be given a Miranda-style reading of their rights, a procedure that is not exactly practical on a battlefield. They mandate a speedy trial, which could deprive the military of the chance to fully interrogate captives about Al Qaeda operations.
Fortunately, the court acknowledged that different circumstances could warrant different procedures, if the executive branch can justify such departures. But the justices refused to countenance some of the expedients established by these commissions–like allowing the accused to be barred from the courtroom to protect “national security interests” and admitting evidence obtained through torture.
Trying accused terrorists on war crimes charges does present special risks, such as exposing informants and revealing vital secrets. But those problems are generally not insurmountable. Federal law provides means to safeguard such information in a criminal or military trial.
Judges can bar defendants from demanding classified material if it is not necessary for their defense. Documents can be redacted to minimize disclosures.
Experience shows that the government can get convictions even in civilian criminal courts without putting national security in peril. U.S. Atty. Patrick Fitzgerald of Chicago, a veteran of terrorism cases, once said, “I don’t think people realize how well our system can work in protecting classified information.”
There may be cases, of course, when the government can’t get a conviction because it refuses to reveal critical secrets. In a criminal trial, that could mean letting a dangerous person go free. At Guantanamo, the consequences are far less dire: Even if a suspect is acquitted of war crimes, he can be held as an enemy combatant for as long as the war lasts.
Everyone agrees that terrorists fighting against America should be brought to justice. The sooner the president and Congress work out a trial system that respects the Supreme Court’s ruling, the sooner that will happen.
