Civilian terror trials are the violation of the law

Trying prisoners taken during a war in a civilian court is a crime.  I have long maintained that and am glad that I now have support from Robert F. Turner co-founded the Center for National Security Law at the University of Virginia School of Law in 1981 and chaired the American Bar Association's Standing Committee on Law and National Security between 1989 and 1992.

...detaining enemy combatants for the duration of hostilities without charge or trial is a long-recognized and lawful practice. Thus, the United States held more than 400,000 German POWs (and many Italians, too) at detention camps spread across 40-plus states -- without lawyers, charges or trials -- until World War II ended.


Before citing the 1949 Geneva POW Convention, critics should be aware what they actually say. Article 84 states: "A prisoner of war shall be tried only by a military court." And Article 97 says: "Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.)." [Emphasis added in both cases.]


It is only because terrorists like Khalid Sheik Mohammed & Co. don't qualify for full Geneva protection that we have the legal option of trying them in domestic courts.


But exercising that option is clearly unwise. The practical arguments are familiar: Such trials would likely result in theatrics like those we witnessed year after year in the Moussaoui trial (which cost tens of millions of dollars); they might endanger the lives of jurors and could compromise sensitive intelligence sources and methods.


And there's a very real risk that a judge might turn dangerous terrorists loose on American streets if the government refuses to identify and produce undercover witnesses who may have penetrated al Qaeda networks in foreign lands.


But a different issue ought to concern the ACLU: Civilian trials of these terrorists run a real risk of contaminating our own legal system.


For starters, such trials should plainly proceed in accordance with the applicable rules of international law -- rules that do not include the full panoply of protections provided by the Bill of Rights (which doesn't even apply fully to our own armed forces), Miranda warnings or our exclusionary rule.


Nor should we risk setting a precedent by holding the trials under US criminal law: Would we want some future Adolf Hitler or Saddam Hussein to have the right to try captured US soldiers under their domestic criminal laws?