U.S. justice for all

September 02, 2004

THE OPENING HEARINGS in the cases of four of the 585 U.S.-held terrorist suspects at Guantanamo Bay, Cuba, last week showed what many had feared: The system isn't working.

It's not just the trouble with interpreters, who occasionally but repeatedly mistake "decision" for "confession" and whose regional accents can't be understood by some defendants. Nor is it just the lack of law experience of four of the five judge-and-jury panelists, one of whom couldn't describe the Geneva Conventions, the chief source of international law. Nor even the strange lack of assistance for defense attorneys while prosecutors are stacked up on one another.

The fundamental flaw is the process itself. Updating the creaky protocols of military commissions - last used five decades ago and based on a concept of due-process rights that doesn't reflect current court thinking - has proved awkward at best. Though much improved from the kangaroo court set up in the administration's first draft, the rules still are weighted toward the prosecution - including denying the defense access to evidence considered classified. They also still permit coerced testimony and hearsay as evidence, a standard not used in U.S. or international law. And defendants cannot appeal the verdicts or the process except to the military itself.

The guidelines also are incomplete. One defendant wanted to be his own defense lawyer; no one was sure he could do that. Then he asked to have a fellow countryman as his defense attorney; it was unclear if he could do that, either. Yemeni native Ali Hamza al Bahlul was cut off before he could finish describing his ties to al-Qaida, by the presiding officer, who told his fellow panelists that what they had heard would not be admissible in the trial. The prosecutor disagreed, citing the evidence rule.

This is unacceptable, especially after all the delays and missteps that have caused these men to stew in prison for more than two years - while the remedy was readily at hand.

The United States already has answers to these questions - in its congressionally approved Uniform Code of Military Justice. These well-tempered rules, which also are used for military courts-martial, can handle all levels of classified material and all styles of defense. Adopting these as the operating rules at Guantanamo would be fair to all sides: Jurists, lawyers, observers, defendants and witnesses would know what was admissible, and who does what, where and when. Why reinvent the wheel?

The executive branch has the right to call these commissions, as President Bush did in November 2001, but their operation, at the least, should follow U.S. law. As the world watches the United States try people its commander in chief has called killers and its attorney general calls "uniquely dangerous," it behooves the administration to make its case in as lucid and just a manner as possible.

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