Weather | Sports | Forums | Comics | Classifieds | Calendar | Movies
A Times Editorial
Congress should provide some oversight of the secret military tribunal and remind the president that overriding liberty for security could reduced our nation's credibility.
© St. Petersburg Times, published November 23, 2001
George Washington University law professor Jonathan Turley described President Bush's plan to institute a secret military tribunal to try foreign terrorists as "a legal system in a burqa." Turley was arguing that by throwing out the traditional rules of American due process for accused members of al-Qaida, Bush is embracing a proceeding that would be familiar to those who have lived under Taliban rule.
Turley's soundbite is bit of a stretch. However, many liberals and conservatives are expressing alarm -- and rightfully so -- over the dangerous direction in which the president is swinging our system of justice. Whether some form of military or international tribunal would be an appropriate venue for bringing foreign terrorists to justice is a question for legitimate debate. There are implacable terrorists who want to do even greater harm to Americans than was done on Sept. 11. In some circumstances, a tribunal might be justified as a facet of the military campaign against al-Qaida -- say, to try Osama bin Laden and his chief lieutenants if they are captured alive, which seems unlikely. Foreign nationals engaged in armed conflict with the United States are not entitled to the same constitutional protections that American citizens are guaranteed. This is a matter of war, not law enforcement.
That said, however, the president's executive order dangerously over-reaches and authorizes military trials in a greater array of cases than is necessary. The president is creating a largely secret military court answerable to the executive branch alone. Under Bush's order, the tribunal will be constituted by Secretary of Defense Donald Rumsfeld, who will appoint its members and establish court procedures. A tribunal, whether convened abroad or here at home, will be freed from most of the rules of evidence and standards of proof that are the cornerstone of American trials. When it deems it necessary to protect classified information, a tribunal can hold trials in secret. Depending on the rules the military lays down, a tribunal could insist that a defendant's guilt be established "beyond a reasonable doubt," or it could use a lesser standard. A verdict does not require unanimity; a two-thirds vote will be all that is necessary to convict. Execution will be among the punishments available, and no decision by the tribunal will be reviewable by an American court.
This special court, devoid of checks and balances and constitutional safeguards, has been established for foreign nationals only -- inside or outside the United States. Its jurisdiction applies to any non-citizen, even one legally residing in this country, designated by the president as a member of al-Qaida. The definition is designed to give the government maximum leeway, and it is broad enough to sweep in non-citizens in this country on the margins of the al-Qaida network, people whose cases belong in federal court.
Before the first tribunal is convened, leaders of the House and Senate Judiciary and Intelligence committees should hold hearings on the president's order. Bush may have the constitutional authority to issue such an extraordinary order, just as past presidents have, but Congress has an obligation to weigh whether a secret military tribunal is necessary for our national security and whether it could undermine U.S. moral authority and credibility in the eyes of other nations. With lawmakers on both sides of the aisle calling on the administration to explain itself, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has said he will open hearings immediately after the Thanksgiving break.
In recent weeks, the Justice Department has unilaterally diminished attorney-client confidentiality and detained people without accounting for them. Attorney General John Ashcroft so far has ignored congressional requests for more information on some of the administration's most troubling antiterrorism policies. It is well past time for Congress to provide some needed oversight and remind the president and the attorney general that there are limits to how far they can go in altering the delicate balance between liberty and security.