Trial and Error

The government seems to be making up the rules on military tribunals as it goes along.


For criticizing President Bush's order authorizing military tribunals, I've been called "nuts," "high," "hateful," a "crybaby," and, perhaps worst of all, "left-wing." But many readers disagreed with me in more polite terms, and they raised points that are worth addressing.

The most common sentiment, which has also been expressed by Vice President Cheney and other public officials, was that terrorists simply "don't deserve" due process. One variation of this argument is that Al Qaeda is at war with civilization, including modern standards of justice, and its members should not be allowed to benefit from the institutions they seek to destroy.

The principle here is debatable: It's rather like saying that neo-Nazis don't deserve freedom of speech because if they ever came to power they would censor those who disagreed with them. But the main mistake lies in assuming that anyone accused of terrorism must be guilty.

As the Cato Institute's Timothy Lynch noted in recent congressional testimony, the argument against civil trials for suspected terrorists is circular. "We are told that a prisoner is not entitled to trial by jury because he is an unlawful combatant," he said. "The prisoner denies the charge and demands his constitutional rights so that he can establish his innocence. The government responds by diverting the case to a military tribunal."

If we're going to take it for granted that anyone the president thinks might be connected to Al Qaeda is a vile, vicious murderer, there's no need for any sort of trial. Just put a bullet in his head and be done with it.

But if we allow for the possiblity that someone suspected of complicity with terrorism might actually be innocent, we need some sort of procedure for determining whether he really did what the government says he did. The controversy over military tribunals is about what that procedure should involve–a question that has nothing to do with how we feel about terrorism.

The point is not that FBI agents or prosecutors are liars but that they're fallible. They may be wrong even though they have a good-faith belief that a defendant is guilty. In the current atmosphere, with law enforcement officials under tremendous pressure to find the perpetrators of past attacks and prevent future ones, such mistakes are especially likely.

In thinking about military tribunals, people tend to imagine Osama bin Laden himself on trial. Already convinced of his guilt, they are not terribly concerned about making sure that he enjoys all the benefits of due process.

Imagine, instead, some guy you've never heard of, a U.S. resident from a Middle Eastern country who is picked up because he happened to attend the same mosque as a member of Al Qaeda. Before this man is imprisoned or executed, anyone who cares about justice will want some assurance that he really is a terrorist.

It's not clear exactly how much assurance the president's tribunals will give us, because the government seems to be making up the rules as it goes along. The president's order empowers the secretary of defense to issue "rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys."

Some defenders of the tribunal plan see criticism as an insult to the Uniform Code of Military Justice, which governs courts-martial and, they argue, has a proven record of fairness. But the trials authorized by the President Bush are not governed by this code, and they will bear little resemblance to a conventional court-martial.

The president's order allows secret proceedings in which the defendant might not be allowed to choose his attorney (that's up to the secretary of defense), with conviction and sentencing by a two-thirds vote of the tribunal, based on a standard of proof that remains unclear. Judgments will be reviewed only by the president or the secretary of defense, with defendants barred from seeking "any remedy" in a civil court. The executive branch alone will arrest, prosecute, judge, and condemn each suspect.

The UCMJ, by contrast, requires a public trial with counsel chosen by the defendant, proof beyond a reasonable doubt, a unanimous vote for a death sentence, and review by the Supreme Court as well as military appeals courts. So no matter how admirable the UCMJ is, there's plenty of reason to doubt that the government will deliver the "full and fair trial" the president's order ostensibly guarantees.