New York Times
President Bush's plan to use secret military tribunals to try terrorists is a dangerous idea, made even worse by the fact that it is so superficially attractive. In his effort to defend America from terrorists, Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law.
The administration's action is the latest in a troubling series of attempts since Sept. 11 to do an end run around the Constitution. It comes on the heels of an announcement that the Justice Department intends to wiretap conversations between some prisoners and their lawyers. The administration also continues to hold hundreds of detainees without revealing their identities, the charges being brought against them or even the reasons for such secrecy.
The temptation to employ extrajudicial proceedings to deal with Osama bin Laden and his henchmen is understandable. The horrific attacks of Sept. 11 give credence to the notion that these foreign terrorists are uniquely malevolent outlaws, undeserving of American constitutional protections. Military tribunals can act swiftly, anywhere, averting the security problems that a high-profile trial in New York or Washington could pose.
But by ruling that terrorists fall outside the norms of civilian and military justice, Mr. Bush has taken it upon himself to establish a prosecutorial channel that answers only to him. The decision is an insult to the exquisite balancing of executive, legislative and judicial powers that the framers incorporated into the Constitution. With the flick of a pen, in this case, Mr. Bush has essentially discarded the rulebook of American justice painstakingly assembled over the course of more than two centuries. In the place of fair trials and due process he has substituted a crude and unaccountable system that any dictator would admire.
The tribunals Mr. Bush envisions are a breathtaking departure from due process. He alone will decide who should come before these courts. The military prosecutors and judges who determine the fate of defendants will all report to him as commander in chief. Cases can be heard in secret. Hearsay, and evidence that civilian courts may deem illegally obtained, may be permissible. A majority of only two-thirds of the presiding officers would be required to convict, or to impose a death sentence. There would be no right of appeal to any other court.
American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants' basic rights. Federal prosecutors in New York recently won guilty verdicts against bin Laden compatriots who were accused of bombing two American embassies in Africa in 1998. Osama bin Laden himself was indicted in those attacks. Federal courts have ample discretion to keep sensitive intelligence under seal, while still affording defendants a legitimate adversarial process. The law already limits the reach of the Bill of Rights overseas. American troops need not show a warrant before entering a cave in Afghanistan for their findings to be admissible at trial in the United States.
Using secretive military tribunals would ultimately undermine American interests in the Islamic world by casting doubt on the credibility of a verdict against Osama bin Laden and his aides. No amount of spinning by Mr. Bush's public relations team could overcome the impression that the verdict had been dictated before the trial began. Reliance on tribunals would also signal a lack of confidence in the case against the terrorists and in the nation's democratic institutions.
A better way to administer justice must be found. If Mr. Bush is determined to bring terrorists to trial abroad, he should ask the United Nations Security Council to establish an international tribunal like the one set up to deal with war crimes in the Balkans. The proceedings of this court have been fair and effective, and it is respected around the world. If Slobodan Milosevic can be brought to trial before such a court, so can Osama bin Laden.
More than half a century ago the United States and its allies brought some of history's most monstrous criminals to justice in Nuremberg, Germany. In his opening statement at the trial of Nazi leaders, Robert Jackson, the chief American prosecutor, warned of the danger of tainted justice. "To pass those defendants a poisoned chalice is to put it to our lips as well," he said. President Bush would be wise to heed those words.
President Bush's executive order justifying military tribunals to try foreign terrorist suspects, either abroad or within the United States, is a panicky, unnecessary abandonment of the legal rights and protections that distinguish a true rule of law from the arbitrary law of the ruler, such as defines the Taliban regime in Afghanistan.
Bush's order would make it possible for the president to determine who qualifies as a terrorist suspect and would empower the secretary of defense to appoint a military tribunal and determine ''rules for the conduct of the proceedings of military commissions.''
The order also says, chillingly, that, in terrorist cases, the president finds ''it is not practicable to apply in military commissions [tribunals] under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.''
Among the safeguards the accused could forfeit under Bush's military tribunals are the right to an impartial judge, the right of the defendant to confront his accusers, reasonable representation by defense counsel, proper time for such counsel to prepare the case, the barrier of having to establish guilt beyond a reasonable doubt, the requirement of a unanimous jury verdict, and the right of appeal.
These legal privileges are the glory of a democratic society and the distillation of long, costly struggles to protect the accused individual against the awesome power of the state. For Bush to cast away the legal guarantees of due process because of a fear that Osama bin Laden or some of his lieutenants could either escape conviction or score propaganda points in a civil courtroom is too high a price.
If Bush fears the disclosure of intelligence sources and methods, there are sufficient legal precedents in US courts for restricting such evidence to a judge's chambers.
But there is no need to bring bin Laden or his associates to the United States for trial. A substantial body of human rights law has accrued that undergirds tribunals for war crimes in Bosnia, Kosovo, Croatia, or Rwanda. The precedents go back to the Nuremberg trials at the end of World War II.
It is unlikely bin Laden will be taken alive, but other masters of terrorism might be, and they should be brought before an international war crimes tribunal. The venue could be The Hague, in the Netherlands, or any other country willing to host such a court. The symbolism of terrorist suspects being tried before an international tribunal according to civilized rules of due process would do more to defeat bin Ladenism than any American kangaroo court established by Bush.
At the usual speed of the American justice system, it would have been well into the Truman administration before six Nazi saboteurs got what they deserved. Instead, the six, who landed in 1942 in Florida and New York intending to blow up targets in several cities, including Chicago, were tried by a military tribunal set up by President Franklin D. Roosevelt. It took less than seven weeks to try, convict and execute them. The U.S. Supreme Court affirmed the tribunals, reasoning that the six were "unlawful belligerents'' waging war against the United States and could be handled differently than your average felon.
The six did not accomplish their deadly terrorist mission, but on Sept. 11 a band of other enemies of this nation did. That terrorist attack was not only on the World Trade Center in New York and the Pentagon in Washington but on America and its way of life. Now, civil libertarians are complaining that those foreign enemies who would destroy America and its ideals ought to be protected by those ideals. Reminds us of the old joke about the man killing his parents and then pleading that he's an orphan.
The Bush administration has proposed a way to deal with enemies accused of terrorism against civilians that is reasonable and constitutional. Foreigners--not American citizens -- accused of terrorism would be subject to special military tribunals with fewer rights than they'd enjoy in our criminal court system. Defendants still would be afforded a lawyer, but military officers, rather than juries, would render verdicts. Also, these trials could be held outside public view to protect sources of classified information. Most likely any such trials that do occur would be held outside the United States.
Osama bin Laden has vowed not to be taken alive. That's fine with us. But some terrorists will be captured. We don't need years-long trials or our courtrooms turned into political circuses by fanatics making preposterous claims about the Sept. 11 attacks. Military tribunals are the appropriate forum for handling these war crimes. "The United States is at war,'' Attorney General John Ashcroft reminded the nation this week. Tough times call for tough measures. That said, we are not persuaded that Ashcroft has the right to decide on his own to monitor talks between suspects and their lawyers. There may well indeed be reason to suspect that some such privileged conversations might be used to transmit messages and information for terrorist purposes. But Ashcroft should be confident enough in his suspicions to take them to a judge to get permission to monitor these communications.
After the attacks of Sept. 11, many predicted that the demands of domestic security would eventually clash with traditional American reverence for civil liberties. Few predicted that the clash would come so soon and so starkly, or that the government would come down so decisively on the anti-liberty side as would be permitted under President Bush's new executive order on military justice. The order allows the president to order a trial in a military court for any non-citizen he designates, without a right of appeal to the courts or the protection of the Bill of Rights.
We understand the temptation to jettison civilian justice and the shields against excessive government power that this country has nurtured for more than two centuries. The United States is, as Attorney General John Ashcroft said, at war, and with an implacable foe. There are potential terrorists, likely living in this country, who would do Americans great harm if they could -- greater even than what their brethren accomplished at the World Trade Center, the Pentagon and the field in Pennsylvania. We can imagine cases in which the government might take custody of such a person, too dangerous to be released or deported, against whom the evidence came from sources too sensitive to reveal in open court, or was insufficient to win conviction in a normal court. We can also imagine cases in which fighters captured overseas might best be tried in military courts. But the potential damage is so great, to U.S. credibility abroad as well as U.S. liberty at home, that such courts should be viewed as an absolutely last resort, particularly in domestic cases.
Instead, Mr. Bush has authorized military justice as an option for the government in a far wider array of cases than could ever be necessary. Any non-citizen whom the president deems to be a member of al Qaida, or to be engaged in international terrorism of virtually any kind, or even to be harboring such people, can be detained indefinitely under his order and tried. The trials could take place using largely secret evidence. Depending solely on how the Defense Department further refines the rules, the military officers conducting the trials might insist on proof of guilt beyond a reasonable doubt, or might use some far lesser standard. The accused can be convicted without a unanimous verdict but with a two-thirds majority. Those found guilty would have no appeal to any court; and if found guilty, they could be executed. Such a process is only a hair's breadth from a policy of summary justice. The potential to imprison or execute many innocent people is large, the chances that such mistakes would become known much smaller. Mr. Bush is claiming for himself the authority to unilaterally exempt a class of people accused of particular crimes from the protections of the Constitution. In this as in other recent balancing acts between law enforcement and liberty -- the roundup without accounting of more than 1,000 people, the authorization of government eavesdropping on conversations between imprisoned clients and their lawyers -- it seems to us the president is not being well advised.
When Americans accused of terrorism are tried in secret courts by hooded judges in Peru or other nations, the U.S. government rightly objects. To authorize comparable trials in this country will erase any legitimacy of such objections. Worse, it will erode throughout the world the image of America as a place where certain freedoms cannot be compromised -- freedoms that ultimately provide the most basic justification for this country to stake its claim to lead the world and wage the war on terrorism. And worse in turn than the blow to the U.S. image abroad will be the potentially irreversible injury at home if Mr. Bush proceeds, as his order would allow, to undermine the rule of law.
The Taliban seem to be losing their stronghold in Afghanistan. There are rumors that followers of Osama bin Laden are prepared to disclose his location. What if the terrorist and his cohorts are caught? Will they be brought to justice?
That depends on how justice is defined.
President Bush has signed a special order allowing military tribunals to try suspected foreign terrorists found in Afghanistan or linked to the events of Sept. 11. Bush indicated this was simply an option that he wanted in place. But courts similar to these haven't been used since World War II, and they deviate from the due process Americans are accustomed to.
In a tribunal, the president will decide who stands trial, and the court will be comprised of military officers. Concepts such as "reasonable doubt" and "burden of proof" don't apply. The penalty could be death, and defendants have no right to appeal the verdict.
Criminal defense attorney Stanley Cohen said the tribunal being proposed would "violate 200 years of jurisprudence in this country." But Bush said the terrorists "do not deserve the protections of the American Constitution." White House communications director Dan Bartlett added, "The conventional way of bringing people to justice doesn't apply to these times."
Perhaps. And the tribunal would certainly be quick and efficient. But one aspect of Bush's order is particularly troubling - the potential secrecy.
For example, hearsay could be permitted. A prosecutor wouldn't have to reveal where his information came from but could submit it as evidence. This is designed to protect informants. Proceedings could be held partially or entirely in secret. And the American public, as well as the rest of the world, could be shut out.
That defies all logic, particularly now. Being open is crucial after asking for global support in catching the terrorists. Now we simply close the doors? Add to that the fact that a tribunal, where a foreigner stands before a group of American military officers and has no real due process, looks like something from communist China. It's very nature is un-American at a time when this country should be treasuring and projecting what is truly American.
If a tribunal materializes, the proceedings must be open so Americans, and the world, can judge for themselves the fairness of the proceedings.
Because in the end, the United States is on trial, too, in the court of world opinion. And after the terrorists are gone, world opinion will be left. Everyone needs to witness how this country responds to those who took thousands of American lives on Sept. 11. If we're going to deviate from our cherished system of justice, we should at least take care to present our case in open court. The last thing the United States should initiate is a kangaroo court that results in the execution of a foreigner and leaves doubt about the American definition of justice.
Minneapolis Star Tribune
After the towers fell, Americans took stock. Shattered by a stunning loss, they counted their blessings and considered what more they have to lose. Topping the list is liberty -- this country's 200-year-old promise that people shall be free and government shall be limited. Though the terrorists of Sept. 11 leveled buildings and lives, they couldn't lay waste to that great guarantee. Sad to say, the terrorists may have reason to take heart: The White House may be finishing their work for them.
Take a look: Since Sept. 11, the Bush administration has been holding hundreds of noncitizens in secrecy and without charges -- flouting the demands of due process. It's moving to eavesdrop on private conversations between terror suspects and their lawyers -- boldly defying the Sixth Amendment right to counsel. It's hunting down thousands of Arab immigrants for "voluntary" questioning -- shrugging off a flurry of civil-liberties concerns.
Worst of all, the government is getting ready to use Star-Chamberish military tribunals to try foreigners charged with terrorism -- thus relieving prosecutors of the standard obligation to prove guilt beyond a reasonable doubt. Neither would these tribunals have to bother with the right to trial by jury -- or the entitlement to appeal. They could make and break their own rules behind closed doors -- answerable to pretty much no one.
How does the government justify these departures from tradition? Attorney General John Ashcroft does it easily: "Foreign terrorists who commit war crimes," he says, "do not deserve the protections of the American Constitution."
That assertion would make the Constitution's authors weep. They wrote it not to create special rights for Americans alone, but to enumerate and enshrine the "unalienable rights" the nation's founders considered a universal birthright. The principles it recognizes -- that people are born equal, that freedom must not be limited without just cause, that trials must be public and fair, that defendants are innocent until proven guilty -- are far older than this nation. The document was written to protect not just SUV owners in American suburbs, but also criminal suspects in poorly lit cells.
Ashcroft plainly hasn't consulted the founders, and it's a shame. But he's made an equally disgraceful mistake in failing to consult Congress -- the executive branch's natural partner in shaping the response to the terror threat. Replicating its old proclivity for bullying on the international front, the administration is now slipping into unilateralism at home.
This is a dangerous oversight -- and undemocratic to boot. In rushing to safeguard the American way of life, Ashcroft & Co. are starting to look less like freedom fighters than despots. They're snubbing another notion this nation's founders seemed to hold dear: that governments derive their just power from consent of the governed. It's just one more precept of American liberty -- now under threat from foes and friends alike.
(Compiled by United Press International.)