A better tribunal, but to what end?

Calmer heads: Plans for trying terrorist leaders are at least better than expected.

March 26, 2002

THE RULES governing the new U.S. tribunals for suspected terrorist leaders, issued last week, are so much better than the ones that were being talked about last fall that it seems positively unsporting to point out the nagging doubts that still linger around the whole enterprise.

We're even confident that in practice the tribunals will be used appropriately - and sparingly - but they nevertheless raise fundamental issues that are undeniably disturbing.

The good news: Defendants will be presumed innocent until proved guilty beyond a reasonable doubt, and they'll be able to choose their lawyers.

A death penalty cannot be imposed without the unanimous decision of a seven-member panel.

The best news: Trials will be open to the public except when evidence that is classified is being considered.

There is no better way to ensure fairness than with open trials, and no better way to reassure the rest of the world that the United States is not setting up a system of kangaroo courts.

All this is a reversal of the early - and heavily criticized - proposals. It is encouraging to see that the worst ideas, hatched in a time of fervor and menace, have been so quietly put aside.

Defendants can be tried on charges that they broke U.S. law or the international laws of war. The tribunals will still operate under looser standards controlling evidence and testimony than would a civilian court or a court martial. Considering the chaotic conditions in Afghanistan - and the reality that evidence is going to be gathered in many cases by Afghan allies or U.S. soldiers on patrol, rather than by trained investigators - this is hardly cause for alarm.

(It should be noted, though, that representatives of Russia's Federal Security Service were dispatched to Guantanamo last week to interrogate Russian citizens being held there - presumably Chechens or their allies - and we would be uneasy about the evidentiary value of any testimony they might elicit, based on Moscow's brutal track record in Chechnya.)

In fact, it is not unreasonable to suspect that it is precisely the question of admissible evidence that led the Bush administration to persevere with the idea of these tribunals instead of turning to the courts, as many urged.

And that in turn would explain why the administration was careful to ensure there would be no independent court oversight of these tribunals or their verdicts. Guilty verdicts can be appealed only to a special panel appointed by the president.

That's not a particularly good solution. But now the word is, in any case, that few people are likely to be tried by these tribunals - maybe none at all.

Here are our objections, then: The tribunal system was created by presidential fiat. No law was passed. An entire parallel legal system was created, at least on paper, with its own rules. It has no expiration date. There's nothing that specifically limits it to Taliban or al-Qaida defendants.

Could those who set off the bomb in front of the U.S. embassy in Peru last week find themselves someday before a military tribunal? "As long as they're not American citizens," said Pentagon spokeswoman Victoria Clarke.

Who knows where that could take us in the future?

Who might someday be defined as having been "involved in international terrorism against the United States"?

We'd be better off if the administration would specifically define and limit the jurisdiction of these quasi-courts - right from the start.

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