REVIEW & OUTLOOK
Due Process for Terrorists
Those who warned of "kangaroo courts" were guilty of a rush to judgment.
So what was all that fuss about anyway? We're referring to the uproar last November about military tribunals and a "shadow" system of justice. With the Pentagon's release yesterday of the tribunal regulations, the critics look more out of touch than ever. Guess what? The Defense Department decided not to run a Star Chamber.
This was predictable from the start, if only the critics would have given the U.S. government the benefit of the doubt. Instead they assumed the worst, as if the first impulse of U.S. officials was to use the terror war as an excuse to abridge American freedoms. The critics now taking credit for these rules instead owe Donald Rumsfeld an apology.
The regulations ensure that suspected terrorists will be treated nearly as well as American soldiers facing a court martial. They will include more than adequate due process protections, including the presumption of innocence and proof beyond a reasonable doubt.
Terrorists will face a jury of three to seven military officers, with a two-thirds vote needed to convict, except that death-penalty cases will require unanimity. The government will also supply the defendant with a military lawyer, though the accused has the option of hiring Johnnie Cochran, who just might take the job since the trials will be open to the press. Convictions will also be subject to appellate review, by a three-member panel that may include two civilian members.
The military commissions will have their own special rules of evidence, but for eminently sensible wartime reasons. Mr. Bush's original tribunal order requires that military courts consider any evidence deemed "probative" (or tending to prove) to a "reasonable person." That means hearsay evidence will be admissible.
As law professor Ruth Wedgewood has explained, this means that if Osama bin Laden's mother tells someone that her son told her about a terrorist attack, that witness would be able to testify before a military commission; he'd be barred in a normal court. Another example might be evidence found in abandoned al Qaeda hideouts in Afghanistan. Under the exclusionary rule, such evidence--where were the search warrants?--might be thrown out of regular courts. These are understandable exceptions given the national-security risk.
There will also be provisions for secrecy. A trial may be closed if classified or other sensitive material is presented. Again, this is a matter of common sense. Fighting terrorism is hard enough without compromising intelligence sources in open court. That said, the defendant's military lawyer will see every piece of evidence.
Our main complaint about the regulations is that the Pentagon took four months to produce them. If they had come out earlier, we might have been spared some of the shouting from rights groups and European capitals. Or maybe not. The ACLU and Amnesty International won't be satisfied unless a terrorist is treated like someone who stole a car. They were to quick to object again yesterday, which suggests that they've lost the ability to distinguish between genuine and false threats to freedom.
As we went to press last night, the Europeans hadn't yet been heard from. But if the French follow their pattern since September 11, they'll be appalled. Their response to news that the U.S. may seek the death penalty against Zacarias Moussaoui (the alleged "20th hijacker") has reportedly been to threaten to stop cooperating in antiterrorism cases. This attitude comes despite that fact that Moussaoui is being tried in a federal civilian court. We wonder if France's moral sensibilities would be so refined if terrorists had flown two airliners into the Eiffel Tower.
The Moussaoui trial, by the way, shows how sparing Mr. Bush may be in using military tribunals. The President is the only person who may assign a defendant to a tribunal and he said this week he has "nobody in mind yet."
"It's early in the process to be making prosecutorial decisions," Defense General Counsel William J. Haynes explained to us. "Just like any prosecution, you have to build a case." The al Qaeda fighters in detention in Afghanistan and Guantanamo are "singularly uncooperative," he adds, in the understatement of the century.
Our own view is that there's no hurry to bring any of the detainees to trial; nor to send a defendant home even if acquitted of a specific war crime. Under international law, the U.S. has the right to detain enemy combatants until hostilities cease. Until al Qaeda and its allies are broken up, it would be irresponsible to release them to kill again. In World War II, American POWs didn't come home until after the Germans and Japanese had been defeated.
All in all, the tribunal regulations strike a balance in protecting national security and safeguarding the rights of the accused. Both are important. But the first priority now must be national security.
