- The Washington Times - Thursday, December 27, 2001

Critics' reactions to President Bush's proposed use of military tribunals to bring accused terrorists to justice have been a bit unfair, not to mention premature. While their concern for civil liberties is admirable (and I share it), it is also misplaced.
Opponents suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals but that makes little sense. Many of those complaining earlier called for a military response to terrorism. Now they want to demilitarize it.
In effect, what the critics of military tribunals would have the president do is turn enemy belligerents over to civilian law-enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.
America is at war. Wars are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.
We are engaged in the legal equivalent of a formally declared war. Congress authorized Mr. Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." A formal war declaration would certainly have been made, in the days after September 11, had the enemy been known.
We have deployed soldiers, not peace officers. And although we are fighting terrorism with both a military and law-enforcement response, these activities should not be confused or conflated. In all past American wars, our law-enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different or the reverse this time.
Critics fail to acknowledge that the order calling for military tribunals is merely the first step. These are not courts. Rather, when employed during World War II, they were considered administrative proceedings to make findings and recommend sentences to the commander in chief. Mr. Bush has directed the secretary of defense to promulgate the rules and procedures for these tribunals.
The law is unclear, as are the intentions of Secretary of Defense Donald Rumsfeld, about what rights will be afforded those tried by tribunals. Presumably, he will recognize such Fifth Amendment rights as protection against self-incrimination, and due process, as well as the Sixth Amendment rights of speedy trial, informing the accused of charges, confrontation of witnesses, compulsory process to obtain favorable witnesses, and assistance of counsel.
The president's order states that he wants terrorists tried before tribunals to have fair trials. Thus, the secretary's rules should provide for many of the traditional constitutional protections for an accused. If not, the critics have a point.
Mr. Bush's order provides for convictions and imposition of even a death sentence upon a two-thirds vote of the tribunal. This question about fairness can be easily corrected by either Mr. Rumsfeld or any of the panels.
Normal rules of evidence will not apply to these proceedings, and the panels will surely call on highly experienced military officers with a background in the law to sit in judgment of the terrorists. In this context, the verdict of the panel should be unanimous, particularly before a death sentence is imposed.
Executions over the dissent of even one military officer would create serious credibility problems. The panels themselves could agree to only call for death when they unanimously agree. Similarly, the president, who has the final word, may have second thoughts and be reluctant to call for executions without a unanimous recommendation.
The president has been attacked for seeking secret trials. Yet his order does not take a position on whether or not these proceedings will recognize the Sixth Amendment right to a public trial. Historically, military tribunals have been both public and secret.
A powerful argument can be made that the public Nuremberg military trials truly showed the world the horrors of the Third Reich. Similarly, much could be learned about the evils of terrorism from open proceedings.
Secret proceedings are always fraught with potential problems. They have a way of coming back to haunt history.
Consider the secret trials of the eight Nazi saboteurs who arrived on our shores during World War II. J. Edgar Hoover had the world believing that his intrepid and invincible G-men had caught the Nazi spies as they had arrived law enforcement at its best. But in fact, Hoover, along with Attorney General Francis Biddle, had made a deal with one of the eight men, George Dasch who had turned everyone in within days of their arrival in the United States.
Dasch, who had lived in the United States and was married to an American, had joined the Nazis as a means of escaping Nazi Germany. He had planned from the outset to foil their sabotage, and turn everyone in. He was told if he cooperated, he would be pardoned by the president within six months. After all the men were convicted in the secret proceeding, Dasch was not pardoned; but President Roosevelt did commute his sentence to 30 years.
Six years later, a journalist discovered and publicized part of the true story. President Truman released Dasch, on condition that he would go back to Germany. Hoover, outraged that Truman had let Dasch (and potentially his secret) out of prison, snatched Dasch in the dead of night and whisked him out of the country before he could tell the full story. It took decades for the true facts to emerge. This is a cautionary tale about secret military tribunals.
Still, secrecy is sometimes warranted. A close reading of Mr. Bush's order suggests its concern is about compromising classified intelligence sources. At a military trial, such information could be provided to the officers hearing the case; it could not, however, be given to a civilian jury, due to the security risks. A military fact-finder in a closed proceeding can be trusted to hear and protect classified intelligence.
The bottom line on the tribunals is this: Stay tuned. Mr. Rumsfeld must fill in the blanks of the president's order, and the Senate Judiciary Committee has scheduled hearings to get the administration's explanation for use of these military tribunals to deal with terrorists.

John Dean is a former counsel to the president during the Nixon administration.

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