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Use Military Tribunals to Handle Terror Suspects

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Louie Gohmert is a three-term Republican congressman from Texas's First District who served in the U.S. Army Judge Advocate General's Corps.
Trial of the suspected 9/11 coconspirators has brought forth cries that "everyone should have the same rights under our Constitution." They misunderstand the Constitution. It guarantees due process, but that grants different rights in different settings. The burden of proof in criminal cases is quite different from that in civil cases, though the latter may result in the loss of major assets. Respondents in bankruptcy proceedings have very different rights from respondents in administrative or deportation hearings.

The Army taught me that defendants in a military court do not have the same rights as defendants in a U.S. district court. No one screamed that our military should be tried only in a district court. That is because the military system was constitutionally created by Congress. Our Constitution anticipated a military with more discipline, less right to question, and more command control than a civilian workplace. Military members are afforded "constitutional rights," but they're different from civilians'. Likewise, enemy combatants can be constitutionally tried before a military commission created by an act of Congress.

In Article I, Section 8, the Constitution says, "The Congress shall have Power . . . to constitute Tribunals inferior to the Supreme Court." Article III, Section 1, says, "The judicial Power of the United States shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish."

Article III allows creation of many types of courts, including military, bankruptcy, and administrative. Congress's constitutional authority clearly includes the power to establish tribunals for combatants at war with us. So, when Congress established such commissions under the Military Commissions Act of 2006, the Supreme Court upheld their creation.
Terrorist recruiting is not aided by a show of U.S. strength. After the surge in Iraq, terrorists had a difficult time recruiting when they saw we wouldn't flee. However, jihadist recruiting soared after our failure to respond with strength to the 1979 attack against our embassy in Iran, the 1983 Marine barracks bombing in Beirut, and the attack on the USS Cole. Weak responses are seen as terrorist victories, boosting morale and recruiting. It's not the existence of Guantánamo that has helped jihadists recruit. Waterboarding and enhanced interrogation occurred in the Middle East, not in Gitmo. When terrorists accuse us of using torture and can force closure of our best detention facility, it shows weakness to enemies of freedom. Gitmo is not Abu Ghraib.

Some say Article III, Section 2, requires 9/11 trials in New York because it requires trials in the state where the offense is committed. However, the section adds that if the crime is not committed in a state, the trial shall be where "the Congress may by Law have directed." Though Khalid Shaikh Mohammed has admitted assisting with planning the destruction in New York City, he was not there. The conspiracies were committed on foreign soil. Congress can clearly create the court and venue for such trials. That also applies to the alleged Christmas bomber, who was supposedly over Canada when he acted.

As Mayor Michael Bloomberg recently realized, holding Mohammed's trial in New York could bankrupt his city. We must use common sense. Osama bin Laden said in October 2004: "We are continuing this policy to bleed America to the point of bankruptcy. Al Qaeda spent $500,000 on the 9/11 attacks, while the incident and its aftermath have cost America more than half a trillion dollars." We must not play into this scheme. Holding or trying terrorists shouldn't be a jobs program, though some claim it would help local economies.
Most Americans understand the inherent danger in hosting terrorists' trials. It requires little elaboration for the thoughtful. The trials must occur, but in as safe a place as possible. Having studied courtroom design extensively, including Guantánamo, I was impressed that it is about as secure as is possible. For now, the president has reluctantly recanted the dangerous idea of a trial in New York City. However, no city should be subjected to terrorist trials if there is a better alternative. There is. Recall that historically, when a group declared war on us, captured members were held without trial until their comrades agreed they were no longer at war. Then they were either released or tried for war crimes.

In district courts, classified information is not as protected as in military tribunals. Civilian terrorist trials after the 1998 bombings of U.S. embassies in Africa required disclosure that we obtained intelligence through defendants' cellphone usage. Terrorists stopped using cellphones, and we lost information that may have saved lives. When court rules required disclosure of unindicted coconspirators, bin Laden had the names within two weeks. Trial before a military commission affords defendants constitutional protections but weighs them more effectively against the needs of classified information.

In a district court, the right to a speedy trial could result in dismissal of the case against Khalid Shaikh Mohammed. Attorney General Eric Holder said that we'd keep him in custody even if the charges were dismissed. That's a PR nightmare.

Our Constitution allows enough flexibility to prevent enemies from using our own system to destroy us. Accordingly, I filed H.R. 4127, which would require that "alien unprivileged enemy belligerents," as they are now called, be tried only by a military commission. That is constitutional and protects the American people. In their own pleading, Mohammed and his codefendants say that they are "terrorists to the bone." Our Constitution requires that we "provide for the common defense," not be an accessory to those trying to destroy us.