In Defense Of Secret Tribunals

The war in Afghanistan is going well. The Rockaway plane crash is looking like an ordinary accident. And there are no new anthrax victims. Seems like a good time to enjoy a breather, a holiday from seriousness, the seriousness we woke up to on Sept. 11. Hence the righteous fulmination from critics left and right against measures the Bush Administration has put in place to detain, question and try suspected terrorists.

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Yes, more than 1,000 have been held in connection with Sept. 11, many on flimsy charges like visa expiration. Well, Zacarias Moussaoui, arrested in August, signed up for flight school in Minnesota to learn how to fly but not land or take off. He will not talk. Shall we let him go?

Do the Bush measures bend the law? Of course they do. But law is designed to punish past crimes. Unfortunately, we are at war. And in wartime, the imperative is to prevent the enemy from perpetrating future crimes.

The paradigmatic ethics-class scenario for breaching the law during war is this: there is a nuclear bomb hidden in New York City. It is set to go off in 30 minutes. You have captured a terrorist who knows where it is. To find out, are you allowed to torture him, let alone suspend his Miranda rights?

Only a moral idiot would say no.

We are not in quite such extremis. But we are in a situation of critical danger. Newly discovered documents in Kabul confirm that al-Qaeda was working on chemical and biological poisons, and the group was eagerly pursuing materials to build an atomic weapon. No one doubts bin Laden would use it. Taliban leader Mullah Omar declared last Thursday that his objective was the "extinction of America": "The plan is going ahead...this will happen within a short period of time; keep in mind this prediction."

Yes, this sounds like bravado. But so did bin Laden's anti-American rants before Sept. 11. Al-Qaeda has agents in dozens of countries, including the U.S. George Washington, Abraham Lincoln and Franklin Roosevelt, to cite just three wartime American leaders, bent the peacetime structure of rights to avert national disaster. President Bush is right to follow their example. As Justice Robert Jackson said, the Constitution is not a suicide pact.

The critics are particularly outraged that the President has authorized special military tribunals--like those set up by F.D.R. for Nazi saboteurs captured during World War II--to try the likes of bin Laden swiftly, secretly and without Miranda niceties. An apoplectic New York Times called the tribunals "a travesty of justice" and "a dangerous idea, made even worse by the fact that it is so superficially attractive."

I'll take the superficial attractiveness, thank you. For one thing, it avoids the insanity of bringing Osama to trial in the U.S. or at the Hague. Just imagine the scene. It would be the biggest media circus in history. It would make the O.J. trial look like a school-board truancy hearing. It would offer the greatest platform for the propagation of a murderously evil ideology since Weimar Germany launched Hitler's career with the 1923 Munich trial for his pathetic beer-hall putsch.

Critics of Bush's F.D.R.-style military tribunals grandly point to the model of the stately Nuremberg trials. But the analogy is absurd. Nuremberg occurred after Nazism had been beaten, broken, banished to oblivion. Nuremberg marked the closing of a bankrupt account. It was less a trial than a form of documentation of crimes the world had known little about. The crimes of Sept. 11 hardly need publicizing. Moreover, radical Islamic terrorism is by no means dead, even after a major defeat in Afghanistan and even if Osama is captured. What sane nation gives the enemy a megaphone in mid-battle?

And finally, there is the wartime imperative for secrecy. In a by-the-rules bin Laden trial, we would inevitably have to compromise myriad sources to document his links to various terror attacks. Bin Laden used to communicate by satellite telephone. In the New York City trial of the bombers of the U.S. embassies in Africa, a January 2000 release of documents revealed that these communications had been intercepted by U.S. intelligence. As soon as that testimony was published, Osama stopped using the satellite system and went silent. We lost him. Until Sept. 11.

Those who wish to repeat our disastrous experience with open trials show their toughness on terrorism by pointing out that we have already curtailed the normal rules of legal procedure. "The law already limits the reach of the Bill of Rights overseas," the New York Times reassures us. "American troops need not show a warrant before entering a cave in Afghanistan for their findings to be admissible at trial in the United States." Such are the Upper West Side's concessions to war.