Dave Eberhart, NewsMax.com
Wednesday, Nov. 28, 2001

"I’ve made my decision, and it is the right one,” President Bush said at a press conference this week. "I must have the option of using military tribunals.” The latest catalyst keeping the nettlesome issue alive: Spain’s reluctance to turn over terror suspects if their trials were held in the extraordinary wartime forums that provide no trial by jury and can be held in secret.

Criticism of the military tribunals for terrorists has come not only from heads of state, but from Congress, constitutional law eggheads and self-styled civil rights advocates. Bush insists that the tribunals are necessary to, among other things, protect American juries from tampering by the insidious terror network.

But military law experts also point to the irony that without the tribunals, terrorists would enjoy more rights than our own U.S. military men and women who run afoul of the law of a foreign country.

Hypothetical case in point: An American Marine stationed on the Japanese island of Okinawa shoplifts a small item from a store in Naha, the capital city. On the way out, the young son of the owners confronts the Marine. He makes the mistake of his life and shoves the boy out of his way, translating – under Japanese law – a simple misdemeanor into a serious felony robbery.

By one thoughtless act, the American serviceman has put himself in harm’s way of seven years confinement at hard labor in a Japanese prison.

What is more, the American military member must now run the gauntlet of the Japanese justice system that provides for no indictment by grand jury, no speedy trial, no trial by jury and no absolute right to confront and examine witnesses – all in the name of the exigencies of military service.

The Marine knew what he was in for if he violated the laws of the host country that retained "concurrent jurisdiction” over offenses occurring off post or involving citizens of the host country. Counseled on the rigors of the Status of Forces Agreement, or SOFA, he had accepted the proposition that part of the risk of his deployed service was the potential loss of key rights.

Whether in Japan, Germany, South Korea or elsewhere, American GIs are perennially caught in the SOFA trap and are subject to criminal justice systems alien to the defendant-friendly American judicial system. Like Japan, Germany, for instance, provides no juries to hear cases – only one judge or a panel of judges, depending upon the seriousness of the crime alleged.

The point the military law experts make in defending military tribunals is that terrorists, like our own military members serving in foreign climes, should assume the risk that some of their rights may be compromised.

Perhaps even more telling say some experts is the fact that if given the opportunity, the errant military member would most likely choose an American court-martial over trial in the foreign country.

As for our troops poised to fight the war on terrorism in places such as Uzbekistan, they too are potentially in harm’s way.

Originally, Uzbekistan, which is on the northern border of Afghanistan, demanded that the U.S. negotiate a complete Status of Forces Agreement before it permitted use of abandoned air bases, once used by the Soviet Union.

Such a complete SOFA would detail how exactly to handle crimes committed by Americans stationed there, as well a myriad of other details concerning movement of troops and vehicles through the country, reparations for property damage, etc.

Secretary of Defense Donald Rumsfeld made a special trip to the region to talk his way to a quick agreement with Uzbekistan to use the country as a staging area for American operations in Afghanistan. The hammering out of a complete SOFA with the country would have taken time the U.S. did not have.

In practical operation, however, the lack of an adequate SOFA could operate to the detriment of the American military personnel. At least with a complete treaty, the American trooper in trouble with the local authorities would know, for instance, if his pretrial confinement would be in an American military brig or the local lockup.

Bush’s executive order allowing for the tribunals defines broadly the "individuals subject to this order,” saying that they include people who have "aided or abetted” terrorists or aimed "to cause injury to the United States, its citizens, national security, foreign policy or economy.”

"It is not practicable,” the order says, to apply "the principles of law and the rules of evidence generally recognized in the trial of criminal cases” in the United States to these military trials.

Next: an explanation of the limited nature of the extraterritorial jurisdiction of U.S. federal courts, another dilemma that explains why the concept of military tribunals was created in the first place.

Also see: Special Forces Presence Could Present Legal Problems

Read more on this subject in related Hot Topics:

War on Terrorism

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