Ethical Dilemmas Arising From the Use of Military Tribunals
Lieutenant Colonel Jeffrey S. Wilson
Department of English
Moral basis of the GWOT.
The objective of war is to secure a better
peace: a condition which, at the termination of hostilities, offers our own
political community a level of freedom from fear and a level of international
stability that are greater than those which existed before our political
leaders decided to enter into war. If we
are to fight, we must first clearly articulate what it is we are fighting for
and against. It is equally important for
our political leaders to articulate at the outset of hostilities precisely what
it is we are not setting out to
achieve, in order to placate concerns of allies and neutrals, possibly affect
the decision cycle of the enemy, cement international coalitions, and set aside
fears of friend and foe alike that we have ulterior self interested and
imperialistic motives for our actions.
In hindsight, we were ineffective in this sort of communication as we
commenced the invasions of
When we embark on a military expedition, we respect the notion of jus ad bellum, or justice of war, which itself rests on the notion of a just cause for which to fight. Most political philosophers and statesmen agree that the only universal moral justifications for going to war revolve around the defense of individual and collective rights. At the nation-state level, we ground this justification for violence in the proposition that each and every human being, simply by virtue of the fact that they are human beings possesses a certain set of undeniable (the U.S. Constitution uses the term "inalienable") rights, chief among them the right not to be harmed. When we entered World War Two, we did so under the grounds of self defense. We were attacked, and responded with a declaration of war against those who had directly attacked us and their allies. When we entered into the Gulf War, we did so on the grounds of other-defense. A sovereign nation (Kuwait) had been wantonly violated by a belligerent neighbor (Iraq), and we, in the broader interest of maintenance of international law and order and respect for the dignity of human rights, led an international coalition to restore the status quo and reduce the threat that Iraq posed to peace and stability world-wide.
Our current war, though undeclared in the sense that we have not issued a formal declaration of war with any single nation-state or group of nation-states, is unequivocally rooted in the proposition of self defense in the wake of the 11 September 2001 attacks upon us. The invasion and occupation of Afghanistan, toppling the Taliban government, was in direct retaliation for the attack on our soil. In this initial effort we enjoyed either the active support or passive acceptance of the overwhelming majority of the community of nations. With the invasion of Iraq, our moral justification shifted to anticipation of a real and imminent threat from weapons of mass destruction that Iraq was thought to possess. Anticipating such a threat justified pre-emptive aggression against Iraq. The international community (and, to some extent, the American people) is divided on the level of acceptance of our moral reasoning, and current international coalitions suffer to varying degrees from this ambivalence. In addition to self defense and anticipation, we have employed the moral justification of other-defense to assist allied nations in fighting terrorism, most prominently in the Philippines. Given the uneven international acceptance of our jus ad bellum moral justifications for our actions, we must be cognizant of the fact that maintenance of our moral legitimacy, and hence international support for our cause, hinges to a large extent on how we fight our war, or how well we attend to the concerns of jus in bello, or justice in war.
We have, as always, taken great pains to avoid civilian casualties, minimize non-military physical destruction, and allow ample opportunity for enemy surrender. We have been open and honest with the worldwide press corps, and have aggressively investigated instances of suspected humanitarian law of war violations by our armed forces. Always balancing the requirements of operational security with the need to assure the world that we have no hidden motives or objectives, we seem to have learned from past failures to maintain effective, unfettered information dissemination in war (the use of embedded reporters in U. S. units helped a great deal), and here is precisely the point at which the ill-considered use of military tribunals could wreak havoc on our own war effort, weakening our own position while perhaps even strengthening that of the enemy. When examining exactly what the 13 November order allows the President and the Secretary of Defense to do, the moral problems become evident.
Characteristics of military tribunals in the 13 November Military Order.
The Military Order gives the President of the U.S. unilateral authority to
n Identify the particular persons who will be tried by military commission.
n Create the rules under which the commissions will operate and change them at will.
n Appoint the judges, prosecutors, and defense lawyers.
n Decide the sentence upon conviction.
n Decide all appeals.
n Conduct the entire process, including executions, in secret, without any accountability to Congress, the courts, or the American public.
n Conduct the tribunals inside or outside the US (Olshansky 12).
According to the order, the President’s initial criteria for non-citizens who might be tried via military tribunal are those who are suspected of
n Being members of Al Qaeda.
n Are in any way involved in “acts of international terrorism.”
n Have “knowingly harbored” persons falling within the above two categories.
These criteria may change at any time at the whim of the President, and as stated are ill defined and subject to a variety of interpretations (Olshansky 14). On 21 March 2002, Secretary of Defense Rumsfeld issued Department of Defense (DOD) Military Commission Order Number 1, specifying initial procedures for conducting military tribunals in accordance with the President’s Military Order. Like the Presidential order, the procedures outlined in DOD Order 1 may change at the whim of the National Command Authority (President and SecDef). The key points in the DOD order are
n Sec Def may appoint tribunals or delegate that authority.
n Tribunals consist of between 3 and 7 US commissioned officers.
n Tribunals are open or closed to the degree determined by the Presiding Officer.
n Prosecutor is a US commissioned JAG officer.
n Chief defense counsel is a US commissioned JAG officer.
n Detailed defense counsels are US commissioned JAG officers.
n The accused may elect to utilize civilian lawyers as additional defense, but only if they
n Are a US citizen.
n Licensed to practice law in the US.
n Are eligible for a SECRET clearance (DOD Order 1).
Military Commission Order 1 also gives details about how verdicts are determined and acted upon:
n Tribunal members vote on findings and sentences are via secret ballot.
n Tribunal may sentence death by unanimous vote.
n There is no appeal process.
n Tribunal verdict forwarded to Sec Def Review Panel to validate whether procedures were followed to the Panel’s satisfaction.
n Once validated by the Sec Def Review Panel, the President (or, if he chooses to delegate, the Sec Def) makes the final decision. The President or Sec Def can reduce a sentence, defer, or suspend the sentence. The President or Sec Def CANNOT change a not-guilty verdict to a guilty verdict.
n Once verdict made final by President or Sec Def, sentence is carried out immediately.
Challenges to the legitimacy of military tribunals.
Thus far, I have discussed only the facts about the tribunal process as currently authorized without evaluating those facts in the light of law, morality, or prudence. At this point, I will offer some observations in all three areas, culminating in the proposition that military tribunals conflict with the moral philosophy upon which our law and government are based, and thus should not be utilized.
There are legal challenges to the Presidential Military Order from both domestic and international law. According to Barbara Olshansky, of the Center for Constitutional Rights, “both the subjective basis for detention and unlimited restraint of the accused permitted by the Military Order constitute undeniable violations of our Fourth Amendment guarantee against unreasonable searches and seizures (27). She claims that the Military Order violates the Fifth Amendment “guarantee against compelled self-incrimination” by permitting “the use of pretrial statements made by the accused regardless of the circumstances under which those statements were made” (24). The Sixth Amendment to the U.S. Constitution guarantees that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury” (Constitution). The Military Order denies the accused a jury and, at least potentially, a public trial. These domestic Constitutional questions, in addition to the larger problem of whether or not the Military Order deprives the accused of his rights under the writ of habeas corpus (which states that no person may be deprived of his liberty without due process of law) are questions that the current Administration has yet to publicly answer (Olshansky 30).
In terms of international law, the Center for Constitutional Rights contends that military tribunals conflict with specific provisions of the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Military tribunals, according to the Center, violate the ICCPR Article 9, which guarantees a person’s right to liberty and security, free from “arbitrary arrest and detention” (Olshansky 50). Further, the Center points out that a military tribunal is not the “due process…of a fair and public hearing by a competent, independent, and impartial tribunal” that the ICCPR’s Article 14 guarantees all people (Olshansky 51). The current U.S. Administration has yet to respond to these concerns publicly, either.
I am not a legal scholar, and will not attempt to base my argument against military tribunals on the legal questions such tribunals raise. It is enough, I think, to point out that the legality of military tribunals is by no means clear under either domestic or international law, and that the U.S. government must clarify these issues in order to give military tribunals any sort of legitimacy in the eyes of the international community. The fact that such problems exist should be enough to at least delay any use of military tribunals until the questions can be answered publicly.
In terms of the non-moral consideration of prudence, I do think that military tribunals are counter-productive in terms of how they affect the achievement of our ultimate war aims. I believe that the use of military tribunals undermines the moral legitimacy of our cause, and thereby reduce the effectiveness of our efforts to win the war on terror. I can conceive of no scenario where the use of military tribunals would make good prudential sense, even apart from moral considerations, because of the way they create a lightening rod for perceptions of recklessness, indifference to human rights and international law, and crass imperialism in the third world. However, I do not base my main argument on the non-moral consideration of winning the war: I focus my attention on how military tribunals conflict with the philosophical moral principles upon which our government is based. These arguments center around the Kantian notion of the absolute moral equality of each person and respect for each person as an end in himself, and are bolstered by other moral theories that contributed to the crafting of our basic documents of government.
Philosophical argument against military tribunals.
The U.S. founding fathers upheld Kant’s notion of respect for persons in creating the Declaration of Independence, the Bill of Rights, and the Constitution itself. Adherence to a concept of human rights which could not be infringed upon by any government demanded the crafting of law which accorded all people absolutely equal status under the law. In 1859, Abraham Lincoln eloquently expressed the uniqueness of the American philosophical cornerstone of government in a tribute to Thomas Jefferson:
All honor to Jefferson-to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers or re-appearing tyranny and oppression (Maier 206).
Military tribunals arbitrarily assign special legal status to a group of people who have been arbitrarily designated for such status, blatantly denying rights to some that the philosophy behind our basic documents of government ascribes to all. Michael Walzer wrote in Spheres of Justice that “[a] community’s culture is the story its members tell so as to make sense of all the different pieces of their social life-and justice is the doctrine that distinguishes the pieces” (319). The bedrock of American culture is the Kantian ideal of respect for each person as a person under the law. The diverse political, social, and economic views that have always characterized our social and our political life in the United States have in common that basic American ideal that no characteristic of a person, whether internal or externally ascribed, can diminish that person’s status under American law. A military tribunal basically allows the government of the United States to arbitrarily define a set of persons and subject that set (or those sets) of persons to a legal process that is fundamentally different from one that is based on respect for persons. In that sense, a military tribunal is un-American. Here, the Kantian argument against military tribunals links with an argument from virtue against them. A virtuous person acts in accordance with the beliefs he claims to profess. In this sense, authenticity is a virtue. A virtuous political community that claims to base its laws and societal norms on a Kantian moral equality of persons will treat outsiders who come into contact with its laws (non-citizens) in the same way they treat people within the community (citizens). A virtuous government should not disable the institutional checks and balances that ensure each person’s rights under the community rule of law are respected when a person is accused of a crime, regardless of that person’s citizenship status. To do so would undermine the practice of Jeffersonian democracy itself. In After Virtue, Alasdair MacIntyre notes that “…the ability of a practice to retain its integrity will depend on the way in which the virtues can be and are exercised in sustaining the institutional forms which are the social bearers of the practice” (195). In my view, allowing military tribunals to proceed is a form of allowing the “institutional form” that is the Executive Branch of our government, which is indeed a “social bearer of the practice,” or one of the real world entities within which the practice of governing exists, to diminish the integrity of the practice of democracy as we ourselves define it. Not only do military tribunals betray the morality of the philosophical foundations of our government, they also betray the psychology of those philosophical foundations. In other words, in addition to being non-virtuous, also military tribunals run counter to our intuitions about what the essential elements of Jeffersonian democracy are.
To say that military tribunals run counter to our collective psychological identity as a people is to say, colloquially, that Americans just don’t do things that way. Tribunals raise images of totalitarianism and the slippery slope into an ethic of unfettered realism, where the ends justify the means. In Human Morality, Samuel Scheffler contends “both that moral beliefs make social relationships possible, and that the institutionalization of various social relationships makes moral beliefs possible” (138). Here, Scheffler establishes a link between the moral psychology of a people and the fecundity of the community that a people establish. In terms of the United States, Scheffler gives us a way to understand how our basic belief in the fundamental equality of all people and the moral necessity to respect all persons as ends in themselves makes possible a system of government that, when working authentically, tries each person accused of a crime at the same bar, regardless of whether they are insiders or outsiders. Simultaneously, because our society institutionalizes the “social relationship” of equality under the law, it is possible to promulgate a collective psychology as a people that sees such equality as the norm. Such a society will be one in which the statement that military tribunals are, in a way, un-American, will have real psychological and moral resonance. I think that examining the notion of military tribunals through the lens of the moral philosophy that forms the foundation of our political and legal system as well as the moral psychology that arises from that philosophy is one way of, as Scheffler says, “illustrat[ing] the way in which the ethical conversation of a culture like ours resembles a complex dance of moral judgment, psychological insight, and social analysis” (143).
Military tribunals run contra to the basic American philosophical and psychological notion of fairness, further undermining the credibility of our institutions of government in the eyes of the world community. One does not have to know very much about the details of military tribunals as outlined in the Military Order to conclude that the conduct of such tribunals is fundamentally unfair to the accused by the very definition of fairness that is embedded in our basic documents of government (which are based on the Kantian equality of persons) and is a cornerstone of our moral personality as a nation. In A Theory of Justice, John Rawls discusses individual moral personality in a way that I think can apply to our collective moral identity as a nation:
…[M]oral personality is characterized by two capacities: one for a conception of the good, the other for a sense of justice. When realized, the first is expressed by a rational plan of life, the second by a regulative desire to act upon certain principles of right. Thus a moral person is a subject with ends he has chosen, and his fundamental preference is for conditions that enable him to frame a mode of life that expresses his nature as a free and rational being as fully as circumstances permit. Now the unity of a person is manifest in the coherence of his plan, this unity being founded on the higher-order desire to follow, in ways consistent with his sense of right and justice, the principles of rational choice” (491-492).
At the collective level, I think that we achieve the kind of rational coherence that Rawls describes by refraining from the creation of disjuncts between our professed political and social ideals (which we not only claim to have internalize, but also seek to promulgate to other nations) such as that created by military tribunals.
In the preceding discussion, my aim has been to unify the threads of Kantian ethical theory, an ethic of virtue, and moral psychology to construct an argument against the use of military tribunals to try non-U.S. citizens accused of terrorism-related crimes that claims that the use of such tribunals runs contra to the philosophical underpinnings of our system of government, degrades the effectiveness of the institutions of government, and runs against our psychological moral intuitions about our identity as a people. Instead of using military tribunals, we could exalt the fairness and viability of our open court system to the world by trying suspected terrorists in full view of the world. We could turn to an international body such as the World Court to try suspected terrorists, emphasizing the universality of the moral condemnation of terrorist acts, rising above considerations of politics and national interest. Maximizing the good in the GWOT equates to
n Defeating our enemies.
n Building strong international coalitions against further terrorist aggression.
n Acting in such a way that maintains faith with our professed moral underpinnings of our system of government.
n Maintaining a place of dignity and respect in the community of nations.
Acting contra to our professed respect for individual rights out of paranoia, insecurity, or desperation reduces the credibility of our defensive efforts and makes us appear two-faced in our true intentions, thereby decrementing our ability to maintain faith with our founding fathers and perhaps even inviting abuses against our own citizens who find themselves subject to trial in other countries. The use of U.S. military tribunals, with their attendant secrecy and unilateral character, allows one to look upon the GWOT as a unilateral U.S. war, perhaps diminishing the cosmopolitan character of the stated objectives and the coalitions we have mobilized to fight terrorism worldwide.
Some may argue that military tribunals may be worth the risk, though. A military tribunal can proceed more swiftly than a civilian hearing, and one might argue that the members of the military tribunal itself are the best qualified to make life or death decisions in the violent matters and violent suspects brought before the tribunal. Geographically, it may be more expedient to administer justice as close to the area of conflict as possible. We may also want to demonstrate the resolve to bring swift and harsh penalty against those whom we suspect of terrorism, as a deterrent to other terrorists and regimes who contemplate support for terrorism. In any case, the details are not worked out yet, and one might argue that we must wait until a tribunal is actually convened to accurately assess the problems and potential damage to the overall war effort.
On the other hand, one might simply ask, if our cause is just, and we are fighting justly, why do we require a cloak of military secrecy and a separate legal framework when administering justice to suspected terrorists? If one of the cornerstones of our desired endstate is to reduce or eliminate the ability of terrorists to operate individually and collectively across national borders, one may logically argue that that aim is best served by open legal proceedings conducted under the jurisdiction of a U. S. civilian court or a supra-national body such as the World Court, as was done in the Balkans. In a war that is in fact undeclared in the conventional sense, in which the full spectrum of U. S. political and military power is far from being unleashed, around which most people in most countries go about their daily business with minimal cognizance of the conflict that rages on the ground, it is extremely important that we do not give our enemy any sort of political or spiritual ammunition that he can use to solidify or gain support, fracture the sometimes fragile international alliances under which we are now fighting, and hinder the achievement of our stated political objectives. Decisionmakers must carefully weigh the arguments for and against the use of military tribunals in order that their use does not detract from the war on terrorism and open the U. S. to charges of moral hypocrisy.
Constitution of the United States. Washington, D. C.: U.S. GPO, 1986.
Flanagan, Owen. Varieties of Moral Personality. Cambridge, Mass.: Harvard University Press,
MacIntyre, Alasdair. After Virtue. Notre Dame, Indiana: University of Notre Dame Press, 1984.
Maier, Pauline. American Scripture: Making the Declaration of Independence. New York:
Random House, 1997.
Olshansky, Barbara. Secret Trials and Executions: Military Tribunals and the Threat to
Democracy. New York: Seven Stories Press, 2002.
Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1999.
Scheffler, Samuel. Human Morality. New York: Oxford University Press, 1992.
Walzer, Michael. Spheres of Justice. New York: Basic Books, 1983.
I do not mean to suggest that Jefferson and the other founding fathers were directly influenced by Kant’s philosophy. The Declaration of Independence (1776) pre-dates Kant’s Groundwork for the Metaphysics of Morals (1785) by nine years, and Kant’s other well known works follow even later. I claim that the ideals of absolute equality of persons and inalienable rights in our basic documents of government are best understood philosophically by appealing to Kant.
 In Varieties of Moral Personality, philosopher Owen Flanagan notes that “[h]appiness, [moral] goodness, and psychological health are not inexorably linked. There do exist, however, some relations among the three concepts, some patterns of co-occurrence, which we can seek to amplify by paying attention to creating social and political arrangements which raise self-esteem, project reasonable ethical standards, and widely distribute the resources necessary for happy, good, and healthy lives” (332). I think that maintaining consistency of message under our law, trying all people accused of crimes at the same bar, regardless of whether or not they are citizens, is a “social and political arrangement” that promotes integration between our actions and what we say we stand for as a nation, thereby promoting “happiness, [moral] goodness and psychological health.”