Jacob Sullum
Of all the reasons the Bush administration has offered for its plan to try suspected terrorists before military tribunals, the most important one seems to be this: If they were tried in civilian courts with the usual constitutional safeguards, they might be acquitted. The New York Times reported that the administration was determined to avoid a disappointment like this year's trial of two Libyans charged in the bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland, in 1988. Only one of the defendants was convicted. "This would not be an outcome we would want here," a Justice Department official told the Times. The idea, then, is to make sure that conviction is a foregone conclusion. Toward that end, the tribunals would conduct secret proceedings, admitting any evidence they consider relevant, including hearsay and information obtained through illegal searches. Proof beyond a reasonable doubt might not be required. A two-thirds vote by the panel would be enough to impose a death sentence, and appeals would be strictly limited. To get an idea of what could pass for justice in this sort of quick and dirty process, consider the 1945 military trial of Japanese Gen. Tomoyuki Yamashita, who was hanged for failing to prevent his troops from committing atrocities in the Philippines. Supporters of military tribunals cite this case as an important precedent, but the details ought to give them pause. Although a majority of the Supreme Court upheld Yamashita's conviction, the two dissenters concluded that the trial violated the Fifth Amendment's guarantee of due process. Justice Frank Murphy said the trial (which was conducted after the cessation of hostilities) was characterized by "needless and unseemly haste," with "no serious attempt to charge or prove that (Yamashita) committed a recognized violation of the laws of war." Murphy noted that the defendant had been "deprived of the benefits of some of the most elementary rules of evidence." He warned that if the Court did not insist on due process in this case, "stark retribution will be free to masquerade in a cloak of false legalism." That is what is likely to happen if President Bush follows through on his plan to authorize rigged trials of suspected terrorists, including people arrested in the United States, as well as those captured in Afghanistan. The question is whether anyone will be fooled by the costume. Perhaps the weakest justification for military tribunals is the difficulty of finding a dispassionate jury, since everyone in America has strong feelings about the attacks of Sept. 11. This is true enough, but it's hard to believe that military officers, members of the armed forces that are actively participating in the war on terrorism, would be any more objective. The concern that a prolonged trial of Osama bin Laden or his lieutenants would invite terrorist attacks is also unpersuasive. Would the quick execution of al Qaeda leaders be less likely to make them into martyrs or enrage their followers? Other objections to civilian trials can be addressed without resorting to military tribunals. Jurors' identities can be concealed to protect them from intimidation or retribution, as is sometimes done in cases involving organized crime. Special procedures also have been established to prevent intelligence disclosures that could threaten national security. They were used in the successful civilian prosecution of the terrorists charged in the 1993 bombing of the World Trade Center. Vice President Dick Cheney says military tribunals are appropriate because a terrorist "is not a lawful combatant." But the concept of unlawful combatants, even assuming that it applies in a conflict where there are no (SET ITAL) lawful (END ITAL) combatants, refers to enemies who do not qualify as prisoners of war and therefore may be tried for the death and destruction they cause. The label does not dictate how they must be tried. "They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process," Cheney said. Justice Murphy had a different view. "The Fifth Amendment guarantee of due process of law applies to 'any person' who is accused of a crime by the Federal Government or any of its agencies," he wrote. "No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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