Already there have been questions over judicial jurisdiction. Spain, for example, has been reluctant to hand over 14 recently arrested suspects to the United States because of the Bush administration proposal to set up secret military tribunals. Some have suggested that terrorist suspects be tried in an international court instead. International crimes tribunals were set up to try war criminals in the Balkans, Rwanda and Sierre Leone. But David Scheffer, who played an integral role in establishing those tribunals, says they are not the best forum for dealing with terrorists. NEWSWEEK’s Jennifer Barrett spoke with Scheffer, a senior fellow at the U.S. Institute of Peace and the former U.S. ambassador at large for war crimes issues [from 1997 to 2001], about the challenge of bringing terrorists to justice at home and abroad.
NEWSWEEK: What are our options for prosecuting terrorist suspects involved in the Al Qaeda network and the war in Afghanistan?
David Scheffer: There are a lot of options, but the real question is which will be the most pragmatic to implement and which will be most politically acceptable–not only to the American people but to the international community. When you look at it from that perspective, you really come down to three options. Those are federal criminal courts, foreign-nation courts and military criminal courts.
Which would be most effective option–and which is the most likely?
In the end, there will be two truly effective options: either federal courts or foreign-nation courts. The reality is that many terrorist suspects will not end up in U.S. jurisdiction and will need to be prosecuted in foreign courts–that’s just the reality. Our courts need to stand on equal par with those foreign courts who are willing to take up these prosecutions, particularly if they are not willing to extradite those suspects to federal courts or military courts.
So far, the Spanish government is reluctant to extradite 14 Al Qaeda suspects in their custody. Spain has indicated it opposes President Bush’s push for the use of military tribunals and America’s use of the death penalty. How much of an obligation do U.S. allies have to turn over any terrorist suspects?
International terrorism conventions of recent years addressed the importance of either prosecuting terrorists domestically or extraditing them to courts that will. That is an obligation that European governments have embraced as have many other governments around the world. It is entirely understandable if foreign courts, particularly well-developed European courts, assume their rightful responsibility to prosecute terrorists. An extradition request is just that–a request. Either the country that has the terrorist suspects responds by saying no, we will prosecute this terrorist domestically, or they agree to extradite the terrorists. That conforms with the principles that we helped negotiate into these international antiterrorist conventions. The further reality is that European governments in particular simply will not extradite terrorists to any jurisdiction where the death penalty would be available upon conviction. In the United States, there are many examples where our federal courts have waived the death penalty in order to obtain the extradition of suspects.
Do you think trying suspects in a federal rather than a military court is a realistic option, especially if it means waiving the death penalty?
Yes, our federal government is shooting itself in the foot by projecting military courts so prominently as an option for prosecution. The military commissions will be very reluctant to waive the death penalty and military commissions can only prosecute crimes of war. Congress would have to widen the jurisdiction of the military commission to be able to prosecute terrorism crimes. Ironically, a military prosecutor would lack many of the potent federal antiterrorism laws that are specifically tailored to nail terrorist suspects. The question of due-process rights likely to exist in a military commission will further discourage any foreign court or government from extraditing suspects to stand trial here.
How should Osama bin Laden be dealt with? If he is captured and tried, what type of court would be the best venue?
We are acting in self-defense in Afghanistan right now and that self-defense principle was confirmed by the U.N. Security Council. If Osama bin Laden and his comrades resist arrest or happen to be in a location which is targeted as a command-and-control target in this conflict, then they risk being killed. But, even under the law of war, if they offer to surrender or do not resist arrest, then they must stand trial. I certainly believe that the most appropriate forum for that trial remains a federal district court somewhere in the U.S. I believe we must not be intimidated by the prospect of terrorist trials in U.S. federal court. It would be a concession to terrorism itself if we were to abdicate that responsibility. We need to show the world that we stand by the fundamental principles that this conflict is all about. It would be an assault on our antiterrorism laws and on the hard work of federal prosecutors in recent years if we were to abandon them simply because we are afraid of the challenge of standing up for what we believe in. We have a good track record of successfully prosecuting terrorists in court while successfully protecting classified information.
Do we really want to allow bin Laden the public forum offered by a federal court? And do we want to take the risk that his lawyer might find a way to get him off on a technicality or to get him a shortened prison sentence, raising the possibility that he might one day be freed?
Osama bin Laden is already indicted for the 1998 U.S. Embassy bombings in Africa, so federal prosecutors already believe they have enough evidence to convict him just for that crime. A federal trial, without question, does have a certain amount of publicity to it. But this is not Paraguay, it’s the U.S.A. And if we are intimidated by the prospect of putting a terrorist on the stand and letting him rant a little bit and then defeating his argument with the truth–then what does our system exist for? We have to careful that we don’t emerge from this process with a hypocritical administration of justice. Our credibility is on the line here and it will play out in the courtroom just as it does on the battlefield. We have to be just as prepared for patience and diligence in the courtroom as we are to persevere over the long-term on the battlefield. The shortcuts offered by the military commission simply will not stand up over time as a credible administration of justice.
Could you envision any scenario in which a military tribunal might be the best option in trying a suspected terrorist?
I still believe we need the option of a military commission, but I think it was done so sloppily by the administration that they shot themselves in the foot. It needs to be the exception not the rule, and it needs to be structured in a way that honors fundamental due-process rights and constitutional requirements. If you structure the military commission properly with a higher floor of due-process rights and some kind of appeals process in the federal court, there could be good use made of military courts. In Afghanistan itself, where certain suspects or Al Qaeda operatives need to be dealt with in the armed conflict context for the Afghan campaign–particularly if there might be a large number of individuals whose responsibility might be difficult to prove but who still need some measure of justice rendered–I think a military commission might make good sense. Even for Osama bin Laden. If the commission were properly constituted and bin Laden was captured in Afghanistan, there might be an instance where trial before a military tribunal in Afghanistan might make sense. But not in the way the commissions are currently set up. It’s useful to have the option. But so far it has been exercised very sloppily.
Why not try these terrorist suspects in an international court?
In this case, there are international antiterrorism conventions that address the crimes and they require countries to enact the laws–very tough laws–to prosecute terrorists. It would be a disservice to those conventions and to our own federal criminal code to abandon those laws for the presumed convenience of U.S. military commissions or the international criminal tribunals, which really were not contemplated as alternatives to national criminal trials in the antiterrorism conventions. There is no legitimate target anywhere in the world for a terrorist. No legitimate civilian or military target–that is the essence of the antiterrorism laws. In contrast, in the law of war there are legitimate targets, and there’s no reason to suggest a terrorist could not somehow make an argument that a military target was somehow justifiable. There’s no reason to give him that opportunity. It’s possible that an international tribunal could be set up with antiterrorist jurisdiction but, pragmatically, it would be difficult to define terrorism for such a tribunal because it is such a controversial term in international politics. There’s a great risk that if you go down the international path the jurisdiction of any of these courts could be broadened to include actions of Israel or actions of the U.S. in Afghanistan. Everyone has their own definition of terrorism, but in federal law, we have been very specific.
What should be done with the thousands of predominately non-Afghan Taliban soldiers who have been captured over the last week? The Northern Alliance has been holding them captive [or executing them, some reports suggest]. How do you bring them to justice?
They are prisoners of war, and they are entitled to the rights of prisoners of war under the Third Geneva Convention. They can be prosecuted for crimes if they violated the laws of war, but they should be tried by military courts that offer essential guarantees of independence and impartiality. Those POWs can only be prosecuted for offenses that our own soldiers could be prosecuted for under laws of war. But again, if an individual is identified as a terrorist or Al Qaeda suspect, then that would isolate that individual from the Third Geneva Convention protection, and we should deal with them as terrorists. Most prisoners of war are not charged with crimes but released at the end of conflict. It will be dangerous for the Afghan victors to categorize large numbers of POWs as criminals unless there are specific violations of criminal law that can be cited.
You’ve said that “substantial international assistance” will be required to help instill the rule of law in that country and bring any remaining Al Qaeda operatives who have not been extradited to justice. What role do you see the international community playing, and for how long?
We’ve been there before. We faced judicial repair jobs in Kosovo and in East Timor and in many other parts of the world. We have a growing body of experience in this. We have learned that unless court systems are rejuvenated and strengthened, the long-term security and stability of society cannot be sustained. Therefore, one of the highest priorities in the reconstruction program for Afghanistan must be the emergence of a far more credible court system with integrity and recognition of international standards of due process. This will require a large amount of resources and outside expertise to accomplish. This is different from political reconstruction where you look to internal actors to get act together. When it comes to rebuilding a court system, it is not simply an indigenous project–it must be one where the international community steps in with a long-term plan for judicial reconstruction. That will be particularly true in Afghanistan where women’s rights are at stake and where criminal activity–whether it be terrorism or drug trafficking or human-rights abuses–will have to be dealt with by a credible law-enforcement system that includes functioning courts. Islamic law clearly has a role to play in Afghanistan but so, too, do international standards of due process and law enforcement. What happens in Afghanistan has such a direct impact on the rest of the world that we cannot let the old order of justice in Afghanistan continue.
