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Stop this tribunal

The Supreme Court struck down President Bush's system for trying terrorism suspects. Now he's back with a proposal that's no better.

By TIMES EDITORIALS
Published July 28, 2006

It is typical of the Bush administration to view any attempt by the courts to bring its policies on terror suspects in line with the Constitution as an obstacle to be overcome. Last month, the U.S. Supreme Court struck down the military tribunals system that President Bush had designed for Guantanamo detainees. Now the White House is floating draft legislation to resurrect largely the same system. Congress should come down on this plan with both feet, not a rubber stamp.

When the nation's high court found Bush's tribunals to be defective, by violating the separation of powers (Congress never authorized the use of military commissions) and the Geneva Conventions, Bush promised to "find a way forward." The implication was that the Supreme Court decision would be the basis for revising the way terror suspects are prosecuted and conforming with our nation's due process standards. The fair approach, and the one approved under the Conventions, would have meant adopting the rules of the Uniform Code of Military Justice and then tailoring them to fit the needs of trying enemy combatants held at Guantanamo.

But this president and his administration don't easily accept the rulings of a court. From the start, Bush has wanted a kangaroo proceeding where the accused is prevented from mounting a full defense. The draft legislation would retain many of the most offensive aspects of Bush's original tribunal system.

Terror suspects could be excluded from their own trials and would not see the evidence against them if it was deemed in the interest of national security. It is impossible to defend yourself against evidence you can't see from a source you don't know.

Under the White House plan, hearsay evidence would be admissible if it was considered reliable, yet there is no way to cross-examine the source of such third-party testimony. The suspect also could be denied evidence that could exonerate him, if national security was raised as a concern.

But the worst aspect of the proposed legislation is that it would allow the introduction of evidence obtained through coercive interrogations short of torture. Of course, the administration's view on what constitutes torture is so crabbed that exposing prisoners to hypothermia or leaving them chained to the ceiling doesn't count.

The civilized world has collectively agreed that there can be no legitimacy to a legal process that relies on coerced testimony. If this provision is allowed to stand it will violate our founding principles. No outside observer would mistake these trials as fair.

There are three key Republicans who will be instrumental in keeping the administration true to the Constitution, the Conventions and the Supreme Court ruling. Sens. John Warner of Virginia, chair of the Senate Armed Services Committee; Lindsey Graham of South Carolina, a former military lawyer; and John McCain of Arizona, a former Vietnam prisoner of war, have all expressed doubts about any tribunal scheme that doesn't adhere to the fundamentals of our courts-martial system. They need to stand by their principles and not cave in to pressure from the White House.

[Last modified July 28, 2006, 01:10:53]