The U.S. Can’t Allow Justice to Be Another War Casualty

Far too much of the recent debate over military tribunals has focused on the hypothetical question of where and how to try Osama bin Laden or others accused of direct involvement in the Sept. 11 attacks.

As the hunt continues, however, it seems increasingly unlikely that Bin Laden will be captured alive or that many suspects linked to the attacks will be Afghan citizens captured in Afghanistan.

Therefore, the best legal solution is for Al Qaeda suspects captured in Spain, India and the U.S. to be bound over to U.S. courts for criminal trials by seasoned federal prosecutors using legislatively mandated procedures to handle classified information.

U.S. courts have more than 200 years’ experience trying international crimes by pirates, hijackers and other international terrorists, and they have successfully tried and convicted transnational drug smugglers--such as Panama’s Manuel Noriega--as well as Al Qaeda members.

Historically, misguided Americans who have inserted themselves into foreign conflicts have similarly been prosecuted before U.S. courts for violations of laws that criminalize private participation in foreign military expeditions.

Those who promote military tribunals have been misled by the O.J. Simpson fiasco to conclude that all U.S. courts--whether civilian or military courts-martial--are inherently incapable of rendering full, fair and expeditious justice in such cases.

Precisely because foreign courts may refuse to extradite Al Qaeda suspects to new and untested U.S. military tribunals, Congress should impose clear due-process limits on the use, rules and geographic reach of any such tribunals--limits that earlier this month Atty. Gen. John Ashcroft finally seemed ready to accept.

A far different scenario should apply to the scores of war criminals--whether from the Taliban, the Northern Alliance or third-country nationals--who may be captured in Afghanistan in the days ahead.

However horrific their crimes against other Afghan citizens may be, they have little to do with the U.S. and should not be adjudicated by U.S. courts that have little interest or expertise in the decades-old Afghan conflict.

Wherever possible, third-party combatants should be sent back to the country of their nationality to face national punishment consistent with international standards.

Afghan violators, such as Mullah Mohammed Omar and his close deputies, should be given treatment similar to that given brutal rebel leader Foday Sankoh of Sierra Leone: arrest, humanitarian treatment in custody, permanent exclusion from further governmental activity, no amnesty for war crimes or crimes against humanity and, eventually, a local trial for those crimes.

The precise shape of the emerging Afghan judicial system, created under the transitional administration now headed by interim Prime Minister Hamid Karzai, remains to be determined. Whatever happens, United Nations transitional support and involvement will be necessary to stabilize the post-conflict environment, to address pressing humanitarian needs of returning refugees, to promote the Bonn process of building a representative post-Taliban government and to address justice, accountability and truth-telling about past human rights abuses by all parties to the Afghan conflict.

We should not mix apples and oranges. Sweeping all “unlawful combatants” who have committed “war crimes” into untested U.S. military tribunals will invite hostile foreign governments to reciprocally “try” and execute captured non-uniformed American intelligence personnel before similar tribunals.

Instead, we should adopt a simple, clear division of labor: American prosecutors and judges should try crimes committed against Americans on American soil, while experienced foreign and U.N. lawyers should address crimes committed against Afghans on Afghan soil.

In surveying our justice options, we should carefully distinguish between our most pressing concern--how to redress and prevent the horrific murder of Americans on American soil--and much broader efforts to support the creation of an enduring post-Taliban system of justice in Afghanistan.

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Harold Hongju Koh, a Yale law professor, was assistant secretary of State for democracy, human rights and labor from 1998 to 2001 and a leader of two U.S. delegations to the U.N. Human Rights Commission.