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Leaked Military Tribunal Regulations: Less Than Meets the Eye

January 2, 2002

Last week we were treated to a leak of some of the draft regulations which will guide the Bush military tribunals for suspected terrorists.

At first glance, there seem to be major improvements 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 secret
  • 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 testify
  • death sentences would require a unanimous verdict

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, medieval terrorists!

Why Be Concerned About the Tribunals?

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 punished.

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.

This was a selection from The Daily Diatribe

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