Military tribunal rules put our values to test

March 25, 2002|By Jonathan Turley

WASHINGTON -- With the release last week of the rules governing the administration's new military tribunals, President Bush stepped forward to answer widespread criticism of the tribunals as un-American and abusive.

He reminded Americans that they should judge the need for the tribunals on the basis of those who would be brought before them. "Remember," he advised, "these are the ones in Guantanamo Bay, [they] are killers, they don't share the same values that we share."

It was a statement that more than any other captured the growing divide between the administration and its critics over issues such as the tribunals.

It is a basic tenet of law that we do not judge legal rules or proceedings by our feelings or suspicions regarding the accused.

The entire point of a trial is to determine whether an individual is truly a killer or terrorist. When you structure a court on the assumption that they are, the legal process becomes a self-fulfilling exercise.

You deprive suspects of rights, and that in turn guarantees that they cannot prove you wrong in your initial judgment.

It is obvious that these are rules that only a prosecutor would love -- hardly a surprise since the prosecutors were allowed to write the rules that would govern their own prosecutions. These include the repudiation of rules that are viewed as essential for any legitimate legal proceeding.

For example, the tribunals will allow the government to introduce virtually any piece of evidence without authenticating it or showing a chain of custody.

Under these rules, the prosecutors can freely introduce evidence that would be thrown out in a real court.

Likewise, the administration has virtually barred the use of civilian lawyers by requiring that prisoners pay for any civilian lawyer themselves -- a highly unlikely prospect. In the federal system, prisoners are entitled to civilian counsel, but these "special" prisoners will be required to use largely inexperienced junior military officers for their defense.

For obvious reasons, the administration has kept the prisoners outside our borders to prevent courts from intervening and it has barred any appeal to the federal courts.

Instead, prisoners can to appeal only to hand-picked individuals who will serve as an ad hoc "appellate court" for these tribunals. To avoid any embarrassing inclinations of these judges, the administration has barred them from applying the U.S. Constitution or federal law and has restricted their review to whether the administration's own rules have been followed.

Mr. Bush is certainly correct that these individuals do not share our values. The question, however, is whether we agree on those values. As a people, we are defined by our Constitution and its values. The most important principle is the separation of powers that creates checks and balances between the branches. Yet the president is claiming the right to create not only his own court system but his own prison system outside our borders.

The Supreme Court has never addressed this issue, but instead expressly reserved the question in its earlier rulings on tribunals during World War II.

Mr. Bush said he would use the tribunals only in cases in which he believes that "open testimony would jeopardize sensitive intelligence." Putting aside the fact that federal courts routinely hear classified evidence in nonpublic hearings to protect such intelligence, this comment illustrates the arbitrary character of these rules.

For each case, the president will make a Caesar-like decision to send a prisoner to a real trial or to the tribunals. Thus, Zacarias Moussaoui, the so-called 20th hijacker of Sept. 11, will receive a federal trial with civilian counsel, while others will be sent to this makeshift court.

This is not to suggest that Mr. Bush is a despot or that the tribunals will necessarily reach unjust conclusions. However, Madisonian democracy is based on the belief that no free people should rely on the good faith of their leader to do the right thing.

The legitimacy of the tribunals cannot rest on either our faith in Mr. Bush or our hatred of these men. In the end, it is, as the president correctly noted, all about our values.

Every generation has faced the siren call of extrajudicial punishment for those we despise.

It is a test of faith that is all the more important when we are championing the rule of law against those who would destroy it.

Jonathan Turley is a constitutional law professor at George Washington University and has served as counsel in national security cases in both federal and military court.

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