Only a military necessity justifies the use of military means. For example, to lawfully resort to force a State must have no other options.
Similarly, during battle, a military may not exert any individual use of force not "imperatively demanded" by the situation. Here, the government intends to exert military means through a military system of justice. Under the Uniform Code of Military Justice (UCMJ), courts-martial, the keystone of military justice, are needed to dispense justice for our service members to maintain good order and discipline in our fighting force. The UCMJ also authorizes war criminals to be tried by military commission. A war criminal is someone accused of violating the law of war on a battlefield. In that situation, a military necessity exists - our military must deliver swift and fair justice in a theater of war for crimes committed during war. Our law and values long respected the notion that military justice is a narrow exception to civilian justice.
I do not question the evil intent or actions of the masterminds of the
9/11 attack. These are barbaric acts that are all rightly criminalized and subject to harsh punishment under U.S. criminal law. Unfortunately, after 9/11 the Bush administration immediately and retroactively characterized the situation as a "war" where the criminals would be subject to military justice. There is no legal precedent justifying terrorist's trial by military commission. Before 9/11, the last time the U.S. used commissions was during and immediately after WWII. Those convicted after WWII were accused of significant and heinous violations of the law of war. In contrast, al-Qaeda operatives are accused mostly of crimes not considered war crimes before the Military Commissions Act.
Terrorism is only a war crime when committed in an active theater of armed conflict. Rhetoric aside, 9/11 did not amount to an armed conflict under international law. Armed conflict requires "protracted armed violence" between two or more states or "protracted armed violence" within one state against "organized armed groups." War should not be a condition the government can invoke at its whim. The government may not distort the definition of armed conflict beyond significance. Many of the detainees facing a military commission, like 9/11 mastermind, Khalid Sheik Mohammed, were captured far from a battlefield accused of crimes not associated with a war. Mr. Mohammed should face harsh justice, but no one in the current or previous administration has ever demonstrated that he could not be prosecuted in a civilian court. Until the President can demonstrate that a civilian court cannot handle these cases, we should not discard them for military tribunals. The brutal and heinous nature of the crime does not justify the use of military means.
Justice is about more than simply levying penalties on wrongdoers. The system of justice used by a given society is a reflection of its values.
The policies and rules the United States is implementing in the military commissions do not reflect our true values. It is time to end this poor attempt at a justice system and try the detainees in well-respected and established courts of law.
Jonathan Tracy is the assistant director of the National Institute of Military Justice at American University Washington College of Law in Washington, D.C., and a former Army Judge Advocate.