Ethical
Dilemmas Arising From the Use of Military Tribunals
Lieutenant Colonel
Jeffrey S. Wilson
Assistant Professor
Department of English
On
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
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Identify the particular
persons who will be tried by military commission.
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Create the rules under
which the commissions will operate and change them at will.
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Appoint the judges,
prosecutors, and defense lawyers.
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Decide the sentence upon
conviction.
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Decide all appeals.
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Conduct the entire
process, including executions, in secret, without any accountability to
Congress, the courts, or the American public.
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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
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Being members of Al
Qaeda.
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Are in any way involved
in “acts of international terrorism.”
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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
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Sec Def may appoint
tribunals or delegate that authority.
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Tribunals consist of
between 3 and 7 US commissioned officers.
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Tribunals are open or
closed to the degree determined by the Presiding Officer.
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Prosecutor is a US
commissioned JAG officer.
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Chief defense counsel is
a US commissioned JAG officer.
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Detailed defense
counsels are US commissioned JAG officers.
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The accused may elect to
utilize civilian lawyers as additional defense, but only if they
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Are a US citizen.
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Licensed to practice law
in the US.
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Are eligible for a
SECRET clearance (DOD Order 1).
Military
Commission Order 1 also gives details about how verdicts are determined and
acted upon:
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Tribunal members vote on
findings and sentences are via secret ballot.
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Tribunal may sentence
death by unanimous vote.
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There is no appeal
process.
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Tribunal verdict
forwarded to Sec Def Review Panel to validate whether procedures were followed
to the Panel’s satisfaction.
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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.
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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.[1] 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).[2]
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
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Defeating our enemies.
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Building strong
international coalitions against further terrorist aggression.
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Acting in such a way that
maintains faith with our professed moral underpinnings of our system of
government.
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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.
Works Cited
Constitution of the United States. Washington, D. C.:
U.S. GPO, 1986.
Flanagan,
Owen. Varieties of Moral Personality. Cambridge,
Mass.: Harvard University Press,
1991.
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.
NOTES
[1]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.
[2] 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.”