Twisting the law to fit the tribunals

May 14, 2002|By Emily Livingston and Lexi Hunter

DURHAM, N.C. - The United States certainly has a reputation for a fair criminal justice system. So should the Guantanamo Bay detainees rest easy?

The Bush administration is trying to create new rules for the military tribunals that are intended to try suspected terrorists. These proposed rules would allow military prosecutors to charge detainees without evidence that they had committed war crimes.

The detainees, who have not been charged, are not confessing to atrocious war crimes in quite the way the administration had hoped.

Frustrated with the lack of information obtained during four months of interrogation, officials appear to be worried that they have insufficient evidence to put many detainees on trial, perhaps thinking what's the use of creating a military court if the government can't find any terrorists it can convict?

According to a New York Times report citing unidentified Bush administration officials, regulations are being considered that would lower the standards for trying a suspect. The new legislation would make it a crime simply to have been a member of al-Qaida and to have furthered its aims in an "identifiable" way.

But the administration has a problem. The proposed rules would criminalize behavior that sounds suspiciously like a "status crime." Such crimes are a catch-all that allow people to be detained by their appearance or association with a particular group - what Black's Law Dictionary refers to as one's "personal condition."

There's the rub. The Supreme Court repeatedly has struck down the practice of detaining someone based on this standard.

For example, in Robinson vs. California (1962), the court ruled that a status or condition alone cannot be considered a crime.

In Chicago vs. Morales (1999), the court upheld the decision of the Illinois Supreme Court to strike down the "Gang Congregation Ordinance," which gave police officers wide discretion to arrest anyone who appeared to be a member of a gang.

In its decision, the state Supreme Court wrote, "Our constitutional standards, fortunately, do not slide up and down according to the gravity of the crime problem we wish to combat. If it were otherwise, the fundamental ideals on which this country is based would slowly deteriorate."

Surely we appreciate the danger of terrorism and necessity of preventing future attacks. But are we willing to sacrifice our constitutional protections?

When the Supreme Court upheld the Illinois ruling, it stated that the state's ordinance was unconstitutionally vague because it failed "to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." It thereby violated the due process clause of the 14th Amendment.

Status crimes require only membership in a certain group, and Bush administration officials hope to make the new legislation just different enough to technically comply with established law. For example, they have added the requirement that one must be a member of al-Qaida and have "furthered their aims in an identifiable way."

Under the proposed rules, a suspect could be convicted without documented evidence or witness testimony. The jury would only have to find an "identifiable" contribution to the group to convict and, possibly, to execute a defendant. This wording does not offer a substantially different standard, but a vagueness that threatens our established standards of justice.

While appeals of the tribunal verdicts are limited to a three-member panel appointed by President Bush, officials believe that defense lawyers whose clients are convicted will ask federal courts to intervene. Hence the determination to have the new legislation follow Supreme Court precedent regarding status crimes. Does the addition of a few words really change the intent of this legislation? Or could it be that this semantic change is an attempt to manipulate our legal system?

How coincidental that these proposed lower standards are surfacing just as reports appear that the interrogations are yielding only frustration. Brig. Gen. Rick Baccus, who is in charge of the Guantanamo detention facility, referred to the United States as "a nation of laws."

Surely he was referring to the laws that already exist, not laws crafted to ensure the conviction of these 300 suspects in Cuba.

The Bush administration is making the law conform to the military commission. Shouldn't it be the other way around?

Emily Livingston and Lexi Hunter, senior public policy majors at Duke University, are conducting an independent study on the U.S. military tribunal.

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