Last week we were treated to a leak of
some of the draft regulations which will guide the Bush military tribunals for
At first glance, there seem to be
over what the procedures could have been under the overly broad military
order issued by George Bush which first authorized the tribunals:
- not all tribunals would be held in
- defendants could hire their own
lawyers in addition to the ones the government would appoint for them
- a reasonable doubt standard of
guilt would be used
- defendants could not be forced to
- death sentences would require a
There is, of course, a widespread
belief among many observers that the tribunals are not needed at all, that
our normal criminal justice system, which has already tried and convicted
several terrorist defendants in the last decade, is perfectly capable of
handling any upcoming trials related to September 11.
That being said, in the event military
tribunals are used, there is, unfortunately, less here than meets the
eye in these draft regulations:
First, hearsay and other types
evidence which are normally inadmissible because of their unreliability,
would still be allowed.
Second, and most critically, there
still does not appear to be any means of appeal to an independent judicial
body. In other words, Bush still gets to choose whom to prosecute, and
to appoint the judges. The judges would be government or civilian
employees who, essentially, work for Bush. There would be no right of
appeal other than to Bush.
Without a right of
appeal to an independent body, there can be no fair trial.
Laurence H. Tribe is a professor of constitutional law at Harvard:
"All the rules about proof
beyond reasonable doubt and other similar protections can look tremendous
but not add up to anything if in the end there is no guarantee of an
appeal outside the executive branch.
"The most important thing
is that the appeal be to people who do not depend on the president's
approval for their continuation in office..."
Scott L. Silliman, a Duke University
Law School specialist on the military, concurs:
"If the administration really
wants to go the final step to full, fair and impartial justice, they need
to build in some kind of judicial appellate review, like in the Uniform
Code of Military Justice."
As might be expected, civil rights
groups expressed similar views:
Jamie Fellner, director of the
United States program for Human Rights Watch, said her group was pleased
with the reports of guarantees of due process but added that the matter of
appeals "goes to the heart of the process."
"You can't have justice without
an independent and impartial proceeding, and they have not addressed
that," Ms. Fellner said. "You still have a system in which the
president determines who should be tried, who the commissions will consist
of, and the president will determine what punishment will be levied on the
accused. He's the prosecutor and the ultimate judge."
George Bush on Tribunals: Better
Than the Taliban
George Bush just doesn't seem to get
it. He said that "whatever the procedures are for the military
tribunals, our system will be more fair than the system of bin Laden and the
Taliban. That is for certain."
Better than the Taliban is not what
the United States is about. If we just want to be better than the
Taliban, we can amputate the fingers of thieves, not the entire hand.
What the United States is about is
fairness and justice. That is the standard the tribunal rules must be
judged against, not whether they provide a better system than maniacal,
Why Be Concerned About the
While none of us have any sympathy for
the actual murderers who planned and carried out the September 11 attacks,
it's illogical to use that feeling as a basis for not caring about the
fairness of the tribunals. The reason is -- as the scores of innocent people being released from
death row after being convicted of murder attest -- innocent people are
sometimes arrested, charged and convicted.
So we need to be certain that whomever
is convicted by a military tribunal is truly guilty. The fairness and
openness of the trial would be one way to ensure that the innocent are not
Moreover, on a personal note, some of
us continue to be very nervous about Attorney General John Ashcroft's testimony
last month before the Senate
Judiciary Committee, essentially equating criticism of the Bush
administration with treason:
Your tactics only aid
terrorists, for they erode our national unity and diminish our resolve.
They give ammunition to America's enemies, and pause to America's friends.
Right now the military tribunals are
only for non-citizens. But given Ashcroft's fascist inclinations, I
want the tribunal procedures to be fair, just in case any citizens who
are strong critics of the Bush administration -- like myself -- somehow wind
up in an Ashcroftian-induced proceeding before such a tribunal for the high
crime and misdemeanor of exercising our First Amendment rights.