Terrorists on trial : Getting it right.

In his first speech to the American people after September 11, President George W. Bush said "we will bring the terrorists to justice or justice to the terrorists." In mid-November, the administration clarified what it meant by bringing justice to the terrorists--trial by military tribunal. Under rules drafted by the Pentagon, such tribunals are not subject to constitutional safeguards; they are without the normal burden of proof required in U.S. criminal trials; and they allow the possibility of presenting evidence in secret as well as admitting evidence that would not be admissible in U.S. trials. Judgment would be by two-thirds of the military judges appointed, without possibility of review by any civilian court. Convicted defendants would be subject to the death penalty.

Many individuals and institutions have already condemned this plan, ranging from the New York Times editorial board to conservative columnist William Safire. Most of these condemnations focus on the violations of civil liberties that Americans not only take for granted but also consider part of their birthright and their very identity as a people. These criticisms are well-placed and justified. Other objections concern the long-term impact on our ability to fight and win the war against terrorism. Convicting alleged terrorists in secret trials without the process due Americans, even American terrorists like Timothy McVeigh, will hand Al Qaeda an enormous propaganda victory and make it much more difficult to win hearts and minds across the Islamic world. Further, trial in military tribunals dignifies defendants as soldiers in an Islamic army, rather than treating them as the global criminals they are.

We are essentially fighting a particularly frightening and deadly form of global organized crime. Fighting organized crime at home poses many of the same difficulties: the tension between securing convictions and jeopardizing informants, security risks, the difficulty of actually getting sufficient evidence to convict. But we have developed laws and procedures that make it possible to hunt down and prosecute master criminals in global criminal networks of drug-runners, traffickers in women, illicit arms sales, and other dangerous activity. We can fight global terrorist networks the same way.

But isn't this a war? Yes, in the sense that the threat posed by terrorist networks is sufficiently lethal to justify, at least under present circumstances, the limited use of armed force to pursue them and to punish and deter the states that actively sponsor them. But unlike all previous wars, we are using force in pursuit of individuals whom we can only identify as the enemy once we have subjected them to the mechanisms of the criminal justice system--once we have demonstrated that they have engaged in the planning, preparation, or execution of either specific acts of terrorism or a general campaign of terrorism. We have no quarrel with ordinary Afghans or Saudis or Egyptians.

That means that we have to get it right. If the suspects tried, convicted, and sentenced before military tribunals are in fact terrorists, we will have significantly reduced a threat to our national security. If they are not, if they are wrongly convicted due to cases of mistaken identity, or an inability to challenge key evidence, or the difficulty of refuting circumstantial evidence that would normally not be admissible in U.S. courts, or simply through the over zealousness of two out of three military-tribunal judges not subject to ordinary appellate review, we will have sown dragon's teeth. We will be, and will be seen to be, fighting and killing innocent Muslims.

The point of the guarantees embedded in the Constitution is precisely to prevent the conviction of innocent people, the ultimate abuse of state power. Those guarantees will protect any U.S. citizens suspected of aiding and abetting terrorism. The guarantees of the German and the Spanish constitutions will protect the suspected terrorists found and tried in those countries (and Spain has said it will not extradite accused terrorists to the United States if they are going to be judged by military tribunals). But in Pakistan, Afghanistan, and even here in the United States in trials of noncitizens, we are proposing to depart fundamentally from those safeguards.

We are fighting and must win a new kind of war. We will ultimately have to craft new rules to govern this type of conflict, both domestically and internationally. But the best way to develop such rules is to work together with our allies and nations across the world that are similarly threatened. We should draw on the experience of nations with long histories of fighting terrorism--Britain, Spain, India, Sri Lanka, South Africa, Colombia, the Philippines. We should devise a system that draws on both national courts and an international tribunal. Setting ourselves up unilaterally as judge, jury, and executioner in closed military tribunals is a recipe for defeat.

Anne-Marie Slaughter is J. Sinclair Armstrong Professor of Law at Harvard Law School and president-elect of the American Society of International Law.