Donald Trump has come under fire for recommending US citizens accused of terrorism be prosecuted before military tribunals. But despite the criticism, Trump’s concerns are not only merited — they are, in fact, within the bounds of the law.
In November of 2010, Ahmed Ghailani, an al Qaeda terrorist who bombed U.S. embassies in Kenya and Tanzania, killing 224 people, received a “near-total acquittal,” in the words of former Justice Department official John Yoo. Ghailani, in this case a non-citizen, was convicted of just one count of conspiracy, receiving an acquittal on 284 of 285 charges.
The odd verdict was in large part due to the exclusion of key evidence, like the testimony of a witness who sold Ghailani 1,000 pounds of TNT, a chemical compound used in explosives, but whose identity was learned through enhanced interrogation techniques and therefore excluded. This evidence might have been admissible in a military tribunal with less stringent evidentiary standards.
Perhaps more concerning than the verdict is the fact that trying terrorists in civilian courts exposes key intelligence information. In a civilian court, defendants are permitted to demand access to incriminating information, possibly bringing to light classified information in the war on terror.
Yoo writes, “That’s what happened when federal prosecutors tried the plotters of the 1993 World Trade Center bombing in civilian court. Al Qaeda learned which individuals the U.S. suspected of being in its organization…”
The troubling history of trying terrorists in civilian courts is precisely what led Trump to question the efficacy of — in Yoo’s words — “President Obama’s misguided effort to wage the war on terrorism in the courtroom.”
While Yoo proposes detaining al Qaeda members and delaying trials until the conclusion of hostilities, Trump has proposed using the more secretive and permissive military tribunal systems, not only for non-citizens accused of terrorism but also for US citizens arrested for the same crime.
Trump’s novel idea was met with criticism that his proposal was “in violation of federal law” or even “unconstitutional.” While the Military Commissions Act of 2006 limits military tribunal trials to non-citizens only, the federal law argument is still a flawed critique.
Consider the exact words of what Trump proposed. Trump was asked by a reporter, “Would you try to get military commissions to try U.S. citizens?” To which he replied, “Well, I know that they want to try them in our regular court systems, and I don’t like that at all. I don’t like that at all. I would say they could be tried there, that would be fine.”
From this, critics assumed he would circumvent or violate federal law rather than attempt to change it.
This assumption came despite Trump previously clarifying, in regards to the use of enhanced interrogation methods, “I do … understand that the United States is bound by laws and treaties, and I will not order our military or other officials to violate those laws and will seek their advice on such matters.” Given Trump’s deferral to authorities on matters of interrogation, we have no reason to assume his answer on military tribunals meant that he would necessarily violate US law.
Some critics have also suggested that Trump’s remarks would run afoul not only of the constitution but also of precedent, alleging that no prior US president has used military tribunals to try American citizens. That, however, isn’t the case.
As the Washington Times points out, the eight co-conspirators of John Wilkes Booth, President Abraham Lincoln’s assassin, were all tried in military court. Lincoln’s attorney general reasoned that this was permissible since they had associated with an enemy of the Untied States and had violated the laws of war, the universally accepted rules and customs for engaging in conflict.
President Franklin Delano Roosevelt likewise used military courts to try eight German saboteurs during World War II, including two US citizens.
Some skeptics might point to Ex Parte Milligan, a civil war era case where the Supreme Court decided that military courts did not have jurisdiction over US citizens if civilian courts were open. Though this may seem damning to Trump’s proposal, Ex Parte Quirin, a 1942 case dealing with Roosevelt’s trial of the German saboteurs, suggests otherwise. In Quirin, the court found that two US citizens could be tried before a military tribunal because they were “in violation of the law of war.”
The court distinguished this case from Milligan by noting that Milligan involved a citizen in Union territory who was conspiring to aid the Confederate forces but had not yet done so, and thus was not associated with the enemy. By contrast, the two citizens in Quirin, “associate[d] themselves with the military arm of an enemy government, and with its aid, guidance, and direction enter[ed] this country bent on hostile acts.” Hence, they were “enemy belligerents within the meaning of the Hague Convention and the law of war.”
With this precedent in mind, it seems that a US citizen accused of terrorism, such as Anwar al-Awlaki, would be a prime candidate for a military tribunal much like the two Quirin saboteurs. Al-Awlaki, a U.S. imam who joined Al Qaeda and advised recruits on how to build explosives, was killed by a drone strike in Yemen in 2011.
And while all U.S. citizens merit due process as required by the 5th and 14th Amendments and the various other constitutional guarantees for criminal procedure, there is at least some precedent for military tribunal applications to US citizens.
In an age when our heinous enemies are intent on violating the laws of war, it is admirable to see a US presidential candidate — namely Donald Trump — rethinking our so-far failed response.
