Baltimore Sun
After Sept. 11's horrifying attacks, defending ourselves against terrorism is understandably the nation's top priority. Even so, President Bush's plan to use secret military tribunals to try suspected terrorists shows a disturbing disdain for the rights of the accused and the rule of law that could undermine the values we seek to defend in Afghanistan and around the world.
Under the executive order Mr. Bush signed last week, any non-citizen the president suspects of terrorism, or of harboring or abetting terrorists, would be prosecuted in a court whose procedures ignore many of the due process standards that govern civilian courts.
Hearsay and illegally obtained information could be admitted as evidence. Proceedings could be held in secret. Defendants would have no right to choose their attorneys. Military officers would serve as judge and jury, and guilty verdicts, even death sentences, could be applied even if one-third of the officers disagreed. No civilian court could review the verdict or the president's decision to try the case in a military court.
Vice President Dick Cheney assures us that defendants will receive "a fair trial," but the rules sound more like those governing kangaroo courts in totalitarian states than anything we would recognize as a fair judicial proceeding.
Such trials would be unworthy of a country that boasts of its reverence for human rights and the rule of law. Indeed, the United States has regularly criticized countries such as Turkey and Peru, which have waged long battles against terrorism, for trying suspected terrorists in secret courts that resemble those the president would create. Can we hold ourselves to a more lenient standard and expect the world to take our vaunted principles seriously?
Throughout the nation's history, we have in many times of great threat compromised the freedoms we treasure. But in retrospect, episodes such as the internment of Japanese-Americans during World War II and the witch hunts for Communists at the Cold War's zenith appear shameful.
On the other hand, cases such as the Nuremberg trials, in which we upheld the rule of law despite great stress and provocation, remain wellsprings of national pride.
In fighting terror, just as in prosecuting Nazi leaders, we need to uphold the values that distinguish us from our enemies.
Atlanta Journal Constitution
Even in times like these, there's no need to hide American justice -- the most open and fair in the world -- behind a veil of secrecy as President Bush has done by creating a secret military tribunal to try suspected terrorists.
The justice of an open society is the most important message we can send to an Islamic world in which democracy is still a stranger.
Under Article II of the U.S. Constitution, the president has the power to create military tribunals during war. That option was used most recently in World War II, when German saboteurs entered this country.
While the U.S. Supreme Court upheld the constitutionality of that earlier tribunal, the Bush order is far more questionable. It represents the most dramatic departure from due process standards in the nation's 225-year history and strikes at the heart of time-honored standards of justice. Among other things, it eliminates the need to prove guilt beyond a reasonable doubt; it removes the requirement that military panel members be unanimous in their guilty verdict before imposing the death penalty; it allows no review or appeal to a higher court.
While the temptation to go outside the normal judicial process to prosecute the likes of an Osama bin Laden is understandable, it's not likely that bin Laden will ever stand trial here. It's far more likely that a secret court might wrongly convict and sentence an innocent person to death.
The administration was already skating on thin ice constitutionally by holding hundreds of detainees without bringing charges, ignoring bipartisan pleas from members of the Senate Judiciary Committee for the accountability that was promised when Congress agreed to the recent anti-terrorism bill. In addition, the Justice Department is no longer honoring attorney-client confidentiality for certain prisoners.
In the trial of those involved in the '93 World Trade Center bombing, civilian courts proved they can try and convict suspected terrorists, while also protecting information important to national security.
There is also another option. If Bush and his advisers believe that al-Qaida terrorists are war criminals, they can be tried in an international court just as Nazi war criminals were tried in Nuremberg, and as Slobodan Milosevic and other accused Balkan war criminals are now being tried.
The president of the United States has unnecessarily placed his executive thumb on the scales of justice. If we hold up our judicial system as the model for other nations to emulate, shouldn't we trust it ourselves?
Washington Times
Just before dawn on a June morning in 1942, four Nazi saboteurs landed on Long Island, N.Y. They quickly changed from German marine uniforms into civilian clothes and, with supplies of explosives and timing devices, went on the scout to New York City. Four days later, four more saboteurs slipped ashore in Florida. The FBI quickly rounded up all eight. They were tried in military courts and four of them were swiftly hanged. Three decades on, as al Qaida and their Taliban hosts flee south into the caves of Afghanistan, we face the prospect of dealing once more with captured saboteurs in America. What to do with them is the subject of an executive order signed Nov. 13 by President Bush authorizing, as FDR did in 1942, that such prisoners be tried by special military tribunals.
As tempting as it may be to follow the FDR example, Mr. Bush should not.
Various arguments are advanced in favor of the special tribunes: Captured terrorists pose special problems both here and abroad. Intelligence information that may have led to their capture would be admissible in a normal criminal trial, and making that information available to the terrorists would endanger the lives of the sources of that information. Our civilian courts have no jurisdiction overseas. Can we trust foreign systems of justice to ensure fair trials and fair punishments?
We are meant to be reassured that military tribunals will reach only those who are not American citizens, and who are identified as either current or former members of al Qaeda who have participated in acts against the United States, or those who have aided or abetted al Qaida's acts. The executive order empowers the Defense Department to detain, try and punish those people, either in the United States or abroad. But the scope of the order is extraordinarily broad, the legal implications uncertain and the precedent it sets is dangerous indeed.
The U.S. Supreme Court has upheld such tribunals in the past, citing precedent going back to the American Revolution. In Ex Parte Quirin, the 1942 decision upholding FDR's order, the high court ruled that there are "lawful" and "unlawful" belligerents, and that the latter -- such as terrorists and saboteurs who are disguised as civilians -- are not entitled to treatment as prisoners of war.
But this does not make the precedent right this time. We are engaged in a "war on terrorism," but we are not actually at war, without the quotation marks, because Congress has not declared war. And there are precedents, you might say, for the Supreme Court upsetting its precedents. There are other ways of dealing with terrorists, and it is neither necessary nor right to abandon the spirit and guarantees of our judicial traditions. Battlefield justice, without ceremony, would be quicker, and as just, as the special tribunals.
Mr. Bush's executive order has brought both right and left together in opposition and disbelief, in concern for American principles and due process. Some of the opposition is fuzzy-headed, such as concern for the vapor of "world opinion." America must always do what it must do, and "world opinion" will follow. But the concern is real. Rep. Bob Barr of Georgia, a former U.S. district attorney and as staunch in his conservatism as anyone, and the American Civil Liberties Union, the fount of the kind of liberalism that infuriates conservatives, are making common cause this time. Several congressmen, including reliable friends of Mr. Bush, suggest that congressional hearings may be useful to discuss how to deal with terrorist threats to the nation.
Federal law and Senate Joint Resolution 23 give the president the authority to use all necessary military force to respond to the Sept. 11 attacks, and they are all the legal authority the president needed to issue his order. But this should not be taken as an invitation to a display of power. Osama bin Laden and his barbarians are not such supermen that America must stand its respect for its traditions of equality under the law on its head to deliver what the barbarians have coming to them. The president and his men should think again.
Boston Herald
The possibility that terror suspects will be tried by military tribunals may have the American Civil Liberties Union in a tizzy, but it ought to be good news for the rest of the civilized world.
While special military courts have been authorized by executive order, no moves have been made to actually set them up. Still, the ACLU is "deeply disturbed" by the prospect, which, we are told, could erode constitutional safeguards.
But the suspects who would be tried in such courts will not be U.S. citizens and terrorism isn't an ordinary crime.
With military courts, it would be easier to protect witnesses fearful of reprisal. And the courts could consider evidence without compromising intelligence sources.
During the trials of defendants in the 1993 World Trade Center bombing, prosecutors frequently expressed frustration at not being able to use classified information for fear of exposing informers and undercover agents.
The tribunals might allow conviction based on a lower standard of guilt - say ``probable to a reasonable man'' instead of beyond a reasonable doubt. They also could allow the introduction of hearsay and other secondary evidence.
Again, we are not dealing with ordinary criminals but mass murderers who operate in an atmosphere that makes convictions difficult if not impossible using the standards normally applied in criminal trials.
The tribunals would not be star chambers, but courts staffed by competent military judges and lawyers. During World War II, such courts operated fairly and effectively. Some defendants were convicted, others were acquitted.
America is at war, as both the president and Congress acknowledge. In wartime, the government needs greater latitude to protect the lives and liberties of all Americans. This is a time for justice that is swift and sure, not one that provides programming material for Court TV.
Seattle Times
The Bush administration and Attorney General John Ashcroft have taken a dangerous path with secret military tribunals and other alarming intrusions on American civil liberties.
No amount of patriotic zeal or fearful frustration can justify these shortsighted ideas. They are a boon for America's enemies, who seek this kind of erosion of long-held values.
What has been proposed also evades the checks and balances in our democratic system. Imposed by executive order, they specifically seek to avoid any advice or consent from Congress.
President Bush announced creation of military tribunals to try suspected terrorists, whether they were captured in Afghanistan, this country or elsewhere.
Such tribunals, intended to function with a military judge and jury in secret, operate with their own truncated procedures and rules of evidence, and can impose a death sentence with a two-thirds, not unanimous, vote.
History does not provide much support for this approach. They were used in World War II, a declared war. More relevant to current times, the administration offers no explanation why existing legal procedures are inadequate.
Terrorists from those who first attacked the World Trade Center in 1993 to Timothy McVeigh all received full, fair trials. Even the law-abiding Scots wanted nothing to do with military tribunals as proposed by the U.S. for defendants in the 1988 airline bombing over Lockerbie, Scotland.
Bush's military tribunals would apply to non-citizens only, as if the nipping and cutting of procedures for one group does not cause alarm to anyone else. Facile assurances in one set of circumstances always leave the nagging question of where does it all end?
As the military tribunals were announced, the Bureau of Prisons put out regulations allowing the government to listen in on conversations between prisoners and legal counsel.
This rule would cover anyone in federal custody, including people detained but not charged with a crime, and held by virtually any federal authority. Stung by criticisms, Ashcroft changed the definition to cover cases where a reasonable suspicion existed. That's cold comfort.
So how many people are being detained? The federal government decided to stop publishing running totals, because officials kept tripping over the numbers.
Rules are being changed faster than concerned citizens can keep track. Rules governing ethical standards for federal prosecutors have been watered down, and the FBI's role in domestic intelligence has been unleashed, along with the CIA's access to previously off-limits material.
The administration is moving too fast and not involving Congress, a point brought home by the observation of a senior Democrat who noted the leaders of both parties are learning about changes in the newspapers.
The enemies of America cannot be allowed to provoke self-inflicted losses on U.S. soil, just as they retreat on the battlefield.
Honolulu Advertiser
Our war on terror has spawned an astounding range of new tools for investigators and law enforcement personnel.
Few Americans want to see authorities handicapped in their war against this shadowy enemy. But there is rising concern that the balance between efficient law enforcement and civil liberties has tipped too far toward efficiency.
At some point, the United States could lose the moral high ground if it abandons the very freedoms it says it is fighting for.
One particularly troublesome proposal would use military terror tribunals rather than civilian courts to try those accused of terrorism.
"Foreign terrorists who commit war crimes against the United States in my judgment are not entitled to and do not deserve the protections of the United States Constitution," Attorney Gen. John Ashcroft said this week.
The problem with this appalling logic is that it assumes we know who is guilty and what they are guilty of even before we try them. Effectively, Ashcroft suggests suspending the Constitution for those merely suspected of terrorism.
Already, there are hundreds of foreign-born nationals being held in detention. No one suggests the Bush administration intends to simply run these people through a modern-day Star Chamber. But there is no way of knowing for sure.
As we move toward swift, secret and perhaps retaliatory justice, it is interesting to note what happened in Afghanistan last week within the Taliban justice system. Judges there said they were reluctant to proceed with the trials of Western aid workers (including some Americans) because they feared they could not be fair at a time the Americans were bombing their country.
Is there a lesson here?
Beyond insisting on maintaining our quality of justice, there is a practical reason for caution. If the rest of the world -- particularly the Muslim world -- perceives the process as a kangaroo court conducted in secret, it is likely to conclude we simply didn't have the evidence to convict fairly.
And if that happens, we gain nothing.
(Compiled by United Press International.)
