Doing Justice During Wartime

Abraham Sofaer
Paul Williams, American University Washington College of Law


In November 13, 2001, President Bush issued a Military Order authorizing the Department of Defense to create military commissions to try non-citizens who are members of al Qaeda or who have attempted or carried out acts of international terrorism. The promulgation of the order was met with overwhelming public support, but with a stream of criticism from civil libertarians and others concerned with the possible dilution of due process standards. The Military Order has also sparked a lively debate among lawyers and pundits in the op-ed columns of America’s newspapers focusing on the legality of the commissions under international law and their actual utility in fighting terrorism.

What has unfortunately been missing from this debate is its proper political context. The question is not whether a military commission is a good or bad thing, but whether any adequate mechanism currently exists for prosecuting prisoners who end up in U.S. custody during the new terror war facing America and its allies. The narrow legalistic debate has failed so far to do justice to the magnitude and nature of the threat of terror war and the policy context for the decision to use military commissions. In this broader context, it becomes clear that current domestic and international mechanisms cannot respond effectively to the needs encountered in the current terror war, but that military commissions, properly used, can do so at least for now. In the longer run, the existing Yugoslav tribunal offers substantial promise as an international terrorism court for particular types of cases. But in the meantime, the need for an effective mechanism is acute, and the military commissions provide one.