Military Tribunals Need Not Be Kangaroo Courts

There is still time for the Administration to specify credible fair-trial guarantees to protect against abuses

In America, people are not supposed to disappear the way they do in Argentina and Guatemala. Yet under President Bush's November 13 order authorizing trials of noncitizens accused of terrorism by presidentially appointed military commissions, the Bush Administration has assumed sweeping power to make such people almost disappear.

Unless the as-yet unwritten procedural rules contain far more specific fair-trial guarantees than those mentioned in the President's order, such presumptively innocent noncitizens could be plucked from their homes and families, jailed under harsh conditions, and charged, tried, convicted and executed, all in secret—even if there were too little evidence to prove guilt beyond a reasonable doubt or to convince more than two-thirds of the quasi-jury of military officers. Any trials of that kind would rank among the greatest outrages in our long history of excessive wartime curbs on our liberties.

But there is reason for hope, if not for confidence, that the Bush Administration intends no such outrage. In the course of an impressive defense of the Justice Department's much-criticized anti-terror campaign on November 28, Assistant Attorney General Michael Chertoff, head of the criminal division, assured the Senate Judiciary Committee that the detailed rules—to be drawn up by the Pentagon—would contain credible fair-trial guarantees. And a senior Administration official tells me: "I don't think that we're going to end up using military tribunals to try people captured in the United States"—not even accused Al Qaeda terrorists. Not many of them, at least. In addition, this official predicts, if and when military commissions are used, the rules will require a presumption of innocence and proof of guilt beyond a reasonable doubt, even for terrorists caught in Afghanistan. And White House Counsel Alberto R. Gonzales told me that any military proceeding would be public except to the extent necessary to protect "national security interests."

These are comforting words. If the President, or Attorney General John D. Ashcroft, or Defense Secretary Donald Rumsfeld publicly provides similar assurances, it would allay the concerns of many of the domestic critics who are alarmed by the breathtaking sweep of the President's order even though some (though by no means all) of them believe that a military-trial option should exist. (I endorsed the Bush order on that basis, with insufficient attention to the troublesome details, in my November 17 column.)

But in their insistence on leaving all possible options open, the President and his lawyers have raised legitimate concerns that they may be devising a system of kangaroo courts. These concerns are aggravated both by the President's peremptory dismissal of any and all criticisms of his order and by his unqualified enthusiasm, as governor of Texas, for executing murder convicts even when their trials were demonstrably flawed. Also disturbing have been the statements of some anonymous officials. Example: "The proceedings promise to be swift and largely secret, with one military officer saying that the release of information might be limited to the barest facts, like the defendant's name and sentence," The New York Times reported on November 25.

Although Michael Chertoff and some other officials seem apt to strike a careful balance between the requirements of liberty and of security, Ashcroft, Bush, and some of his White House aides inspire less confidence. It is unclear how much, if any, input Chertoff and others at Justice will have in drafting the rules for the military commissions to be issued by the Pentagon, which is in the business of waging war, not protecting civil liberties.

There is still time, however, for the Administration to specify credible fair-trial guarantees in the forthcoming rules—or, if necessary, for Congress to do so, and to challenge the President's expansive view of his unilateral power as commander in chief. Such guarantees should include, at the very least, the presumption of innocence, proof beyond a reasonable doubt, public proceedings (with narrow exceptions to avert real security threats), a unanimous verdict to impose the death sentence, a right for defendants to choose their own counsel, and a right of appeal to the highest military court. All of these protections are required by the Uniform Code of Military Justice for ordinary courts-martial. None are required in Bush's order authorizing special military commissions.

In addition, the military commissions should be composed not of current military officers—whose commander in chief would be the chief accuser—but of retired federal judges such as Patricia Wald, retired military officers such as Wesley Clark, and perhaps such people of stature as Al Gore, Warren Christopher, Jim Baker, Lloyd Cutler, Howard Baker, and others whose independence could not be fairly questioned.

In this regard, the now-famous 1942 precedent for the Bush order—the Supreme Court's decision in Ex parte Quirin upholding President Roosevelt's secret military trial of eight German saboteurs (six of whom were executed) who had been landed by U-boats on beaches in Long Island and Florida with explosives—should not be promiscuously applied today. Unlike some of the cases quite likely to arise now, that case carried no cost in world opinion. The guilt of the defendants was also fairly clear: As infiltrators sent into the United States to commit murder and mayhem, the saboteurs were quite clearly "unlawful belligerents" under both domestic and international law. Still, the trial was far from fair. And Supreme Court Justice Frank Murphy's warning in his 1946 dissent from another World War II decision, In re Yamashita, is worth recalling now: "Stark retribution [should not be] free to masquerade in a cloak of false legalism. And the hatred and cynicism engendered by that retribution [must not] supplant the great ideals to which this nation is dedicated."

Some legal experts are convinced that any presidentially ordained system of justice would be both unfair—with the executive branch acting as a totally unaccountable judge, jury, and executioner—and widely perceived as unfair, especially overseas. They are probably right on the latter point, if not the former.

Does this mean that even Osama bin Laden, if captured alive, should be given a full-dress, federal court trial extravaganza? On one side of the scales is the grave but unquantifiable risk that the conviction and execution of bin Laden or other Al Qaeda operatives by a military commission would gravely undermine our nation's stature in world opinion and hence the support we need to defeat our enemies. On the other side is the grave but unquantifiable risk that using ordinary criminal courts could help foment future mass murders, in at least three ways: It might be impossible to win convictions without severely compromising intelligence secrets and thus helping other terrorists complete their plans undetected. Defendants might take advantage of the media extravaganza to further inflame the Muslim world with kill-the-Americans propaganda. And their allies might seize the spotlight by targeting judges, jurors, prosecutors, witnesses, and courthouses, or by taking Americans hostage overseas.

I lean to keeping the military-commission option open—with the fair-trial protections specified above—but using it very sparingly, and only after painstaking case-by-case assessments of the costs and benefits. At the same time, I fear that the President may be on his way to convicting and even executing innocent people. Both Bush and Vice President Dick Cheney seem to have slipped into suggesting that only obviously guilty terrorists have anything to fear. But the law of averages suggests that some of the people who the President (in the words of his order) "has reason to believe" are terrorists may in fact be innocent.

Indeed, some of those who have already been detained for days or weeks—and treated shabbily, even outrageously, in the process—have already turned out to be innocent, only to be freed with brusque non-explanations instead of the apologies and compensation they deserve. The apparent reluctance of the President to admit the possibility of error, and of lower-level officials to admit even the fact of error, could create a powerful momentum toward convicting the innocent along with the guilty. A kangaroo-court approach would also undermine the very security that Bush is trying to protect, not only by forfeiting the moral high ground in world opinion but also by alienating Middle Eastern immigrants who—if treated with fairness and dignity—might blow the whistle on suspicious activities by possible terrorists.

"Infringements of civil rights, if genuinely required, should be open to scrutiny, and considered a painful sacrifice, or a purely tactical retreat, not as the mere brushing aside of irritating legal technicalities," in the words of The Economist. Seemingly indifferent to even the most thoughtful critiques, buoyed by a wave of patriotism and popularity, Bush is riding high. But so were Lyndon Johnson and Richard Nixon (not to mention Othello, King Lear, and Oedipus) before hubris laid them low. Here's hoping that a decent respect for the opinions of mankind helps this President avoid a similar fall.