Wolfowitz Discusses Military Commissions Trying Terrorists
By Jim Garamone
American Forces Press Service
WASHINGTON, Dec. 13, 2001 The United States is at war with international terrorists, and all the tools of war must be brought against them.
Deputy Defense Secretary Paul Wolfowitz told members of the Senate Armed Services Committee Dec. 12 that military war crimes commissions are legitimate tools in punishing these terrorists. Wolfowitz told the senators he was also speaking for Defense Secretary Donald Rumsfeld on the matter.
U.S. actions against the terrorists are "not a law enforcement action; it is war," Wolfowitz said. "When coalition forces storm a Taliban compound or an Al Qaeda safe house, they cannot ask for a search warrant. When they confront Taliban or Al Qaeda fighters in the caves and shadows where they hide, (coalition forces) are in combat. Their objective is to stop the terrorists and prevent them from continuing to threaten our country."
These terrorists attacked the United States contrary to the rules of war. "The president has made it clear that we will hunt them down wherever they hide," Wolfowitz said. "When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country's disposal for doing so. One of those tools is the establishment of military war crimes commissions."
Bush signed the order authorizing the commissions on Nov. 13. "The president's military order to the secretary of defense is as serious as any the president gives as commander-in-chief," said DoD General Counsel James Haynes, who also testified before the committee. "The secretary is determined to be deliberate and careful in implementing the order."
The president in his role as commander-in-chief has issued a military order that would permit individual non-U.S. citizens to be tried by military commissions. "As yet, he has not designated anyone to be tried by such a commission," Wolfowitz said. "He may do so; he may not."
The deputy secretary stressed the commissions will only try non-U.S. citizens. The department is developing procedures for these commissions now, Wolfowitz said.
"We are consulting a wide variety of individuals and experts inside and outside of government to discuss how such commissions should operate and how they have operated in the past," he said. The goal, he said, is to establish rules to ensure that any non-U.S. citizen tried by a military commission is handled in a measured, balanced, thoughtful way that reflects America's values.
Military commissions have been used since the Revolutionary War. The most recent use of these commissions was during and just after World War II.
"We did not bring German and Japanese war criminals to the United States for trial in civilian courts. We tried them by military commissions," Wolfowitz said. "In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions, of which 856 were convicted."
Wolfowitz said U.S. ability to bring justice to foreign terrorists is critical to the ability to defend the country against future terrorist threats.
"A foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution," he said. There are other reasons a military commission might be preferable.
"By using military commissions, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trial itself," he said. "Because of the ongoing threat from terrorists, the risks to jurors are of a kind that military officers are trained and prepared to confront, but that are not normally imposed on jurors in civilian trials."
Wolfowitz noted the civilian judge who ruled in the 1993 World Trade Center attack is still under 24-hour protection by federal marshals.
Another advantage is that military tribunals permit more inclusive rules of evidence, "a flexibility which could be critical in wartime, when it may be difficult, for example, to establish chains of custody for documents or to locate witnesses," he said.
Military commissions can allow the use of classified information without endangering sources and methods. "This point is critical," Wolfowitz said. "During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the U.S. monitors terrorist activities and communications.
"They could be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national security," he continued. "Do we really want to be in the position of choosing between a successful prosecution of an Al Qaeda terrorist or revealing intelligence information which, if exposed, could reduce our ability to stop the next terrorist attack, at a cost of thousands more American lives?
"A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the same time ensuring a full and fair trial for any individuals that might be designated by the president."
Wolfowitz reiterated that the Sept. 11 attacks were acts of war. "The people who planned and carried out these attacks are not common criminals. They are foreign aggressors, vicious enemies whose goal was and remains to kill as many innocent Americans as possible," he said. "And let there be no doubt: They will strike again unless we are able to stop them."