Courts-martial can put terror on trial

DURHAM -- The U.S. Supreme Court ruled last week that military commissions used to prosecute alleged terrorists at Guantanamo Bay were, as currently constituted, illegal. The opinion was immediately hailed as a sharp rebuke to the president. Some saw it as the death knell for domestic electronic surveillance, the CIA's use of "secret" prisons to hold high-value detainees outside our borders and other post-9/11 security efforts implemented by the Bush administration.

Now charged with considering how best to try the detainees, Congress has scheduled hearings starting next week in reaction to the court decision. Some on Capitol Hill have already indicated they will seek legislation that would simply give congressional authorization to the president's military commission system which the court struck down.

But the president and Congress should consider an option that needs no new legislation: courts-martial.

If Congress simply passes a law that merely sanctions the prior system for military commissions -- putting everything back in place the way it was -- there is no assurance that it would even pass judicial muster. There are lingering questions about the court's determination that Common Article 3 of the Geneva Conventions, which sets a baseline for humane treatment, was part of the "law of war" and therefore applied to the 10 detainees facing trial by military commission.

Can Congress, by statute, trump the application of international law in military commissions? Many legal scholars believe so, but we might find ourselves once again facing years of uncertainty as further legal challenges are made.

Congress could also create a completely new system for prosecuting terrorists that remedies some of the defects which the court cited in its opinion, but which allows for a more flexible standard for the admission of evidence. For example, less reliable testimony, such as unsworn statements or hearsay, is not allowed in our federal and state courts, but could be admissible in military commissions if Congress made that the rule. If there was some provision for judicial review of a conviction, and if a detainee was allowed to be present at all trial sessions unless he became disruptive, such a system would clearly satisfy domestic and international legal standards.

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In last week's decision, the Supreme Court clearly implied that courts-martial under the Uniform Code of Military Justice, the type of military trial system used to prosecute members of our own armed forces, could appropriately and with judicial approval be used to prosecute those at Guantanamo Bay. This is a fair and well-proven system of law, created by Congress some 56 years ago, that is more than adequate to the task. The president need only make the policy decision to use it, and trials could start immediately.

Some argue that using the court-martial system, with its higher standard for admissibility of evidence and all the other due process rights found in our federal courts, would prevent the government from getting convictions. We don't have available to us the type of reliable information, they say, that would meet such a high standard because some of the evidence we have against those facing trial may have been procured through interrogations using coercive or even torturous means.

That may be the case, and using courts-martial might mean we would lose the ability to convict and punish each and every terrorist we bring to trial. But in the worldwide court of public opinion we would gain far more than we lose.

By adopting the same system of military trials for prosecuting terrorists that we use for our own service personnel, we send a loud and clear message to all that we have set the bar high. Such a decision would be a first step in restoring our international credibility by proving that we are, in practice as well as rhetoric, a nation under the rule of law.

(Scott L. Silliman is a professor of the practice of law at Duke Law School and executive director of Duke's Center on Law, Ethics and National Security. Prior to joining the law school faculty in 1993, he served for 25 years as an Air Force judge advocate.)