The protests over the president's decision to authorize military tribunals to try terrorists call to mind Barry Goldwater's remark that "extremism in defense of liberty is no vice."
Stripping away the name-calling about kangaroo courts and star chambers, most of the arguments seem to be that there is only one way to conduct a trial, no matter what the offense and despite the fact that the Supreme Court in the past has not found these special tribunals to be inconsistent with the Constitution.
This inflexible approach is, in a way, as extreme as the views that condone terrorism itself, and the consequences of adopting it would ultimately help terrorism achieve its purposes. A little thought will reveal the problem the president confronts. Bringing Osama bin Laden and his henchmen to justice in a US court could require the government to reveal sensitive intelligence information, which could make it difficult to stop other terrorists. Yet without the information gained through intelligence sources, it could be impossible to convince a jury that these criminals and terrorists are guilty beyond a reasonable doubt.
Even in revealing secret intelligence, it may not be possible to meet the standards of a US criminal court for convicting Mr. bin Laden or his co-conspirators. When the criminal justice system deals with organized crime, it is frequently unable to gain convictions without the testimony of someone who has direct knowledge of the culpability of the Mafia boss.
That's why the traditional method of reaching the top of a crime organization is to convict those lower down and work up the chain with testimony of those already convicted or in jeopardy of conviction. These witnesses can provide evidence that a person ordered a crime, even though he did not actually perform the criminal act. This doesn't always work; witnesses may not be willing to talk or there may be none. Al Capone was famously convicted only of tax evasion, when he probably ordered many murders.
The inability to convict a criminal does not mean he is innocent. We have set the standards for conviction very high, because, in balancing society's risks against the risk of punishing an innocent person, we would rather let the guilty go free than convict the innocent. That is a policy with which few in a civilized society will quarrel, but we should recognize it as striking a balance between two competing objectives.
Should the same balance apply to trying terrorists? To answer this, it's necessary to distinguish between criminal and terrorist acts. Although there are exceptions, almost all criminal acts injure or kill relatively few people; they are carried out for reasons that we can connect to human impulses, such as greed or anger. We have a sense, then, that such acts are relatively rare, that we can take practical steps to reduce the chances that we will be victimized, and that society's risks are to some degree limited.
Acts of terrorism, however, are more than criminal acts; they are intended to kill or injure many people, more or less at random, simply to induce fear. Under these circumstances, when confronted by terrorism we must ask whether it is still good policy to let the guilty go free for fear of punishing the innocent.
Here, it seems sensible instead to strike a different balance - one that puts greater weight on protection of society than on protection of an alleged criminal's rights. If we have evidence that a person may be responsible for ordering an act that killed thousands, it makes no sense to let him go free - so he can do it again - because we don't have sufficient evidence to convict him beyond a reasonable doubt.
Thus, the issue is stark. Inflexible advocates of using the criminal courts must be willing to see some terrorists go free if there is insufficient evidence to convict. That's how our criminal justice system is intended to work, and that's the result it will inevitably produce. Those who advocate this should have the burden of demonstrating why society should be interested in striking this balance. To date, they have failed to recognize that there is a balance; they appear to believe that only the American civil jury can produce justice.
But this is surely wrong. We don't know how the terrorist trials will be conducted; trials that do not meet the standards of criminal trials are not for that reason kangaroo courts. American military officers sworn to do justice are not likely to be less fair than civil juries. It is not even clear that the trials will be wholly secret, only that the portions presenting evidence based on intelligence sources will be closed.
It has been said that the Constitution is not a suicide pact. The president's proposal shows us that, within constitutional constraints, we have the flexibility and capacity to do justice to terrorists and to ourselves.
Peter J. Wallison is a resident fellow at the American Enterprise Institute. He was counsel to the president in the Reagan administration.