- The Washington Times - Monday, April 1, 2002

When the president announced last November that he would order military commissions to try terrorists for their crimes, there was substantial opposition to his order among both liberals and conservatives. Conservatives were skeptical about the need for the commissions and the level of due process that any defendant would be given. Liberals concluded immediately that the commissions would be kangaroo courts. Last week, the Defense Department finally issued the regulations setting out how the commissions will operate. They answer most but not all of the legitimate concerns.
The regulations describe a trial that looks quite a bit like a court martial under our Uniform Code of Military Justice. All commission members will be active-duty military officers. They will be in odd numbers from three to seven and the presiding officer will be a qualified military judge advocate. The accused will be provided a military defense lawyer and can also hire a civilian lawyer at their own expense. Only those civilian lawyers who can qualify for a security clearance can practice before the commissions, which presumably makes all the Ramsey Clark clones ineligible. There will be protection against self-incrimination and the normal rights to cross-examination and presentation of evidence. Even in the handling of classified information, the commissions will function very much like civilian courts do under the Classified Information Procedure Act (CIPA). Under CIPA, and in the commissions, the government must choose to share the information with the accused or get the court's permission to substitute a summary. Perhaps most importantly, the defendant can only be found guilty if the commission determines guilt beyond a reasonable doubt by a two-thirds vote. The death sentence can only be imposed by a unanimous vote.
The Defense Department regulations leave two of the most important issues unresolved: Do we still need the commissions, and which of the "detainees" will be tried by them? There is reason to doubt the need for the commissions at this point. Zacarias Moussaoui the so-called "20th hijacker" is being tried in a civilian court, and there is no reason to suspect that the trial will fail to be concluded with a jury verdict. Moussaoui, who is not an American citizen and is charged with having been deeply involved in the September 11 hijackings, seemed the perfect candidate for trial by a commission. He wasn't put before one because he was arrested here, and was thus entitled to a regular trial. But if he can be tried in a civilian court, why can't the others? There may be those whose trials would threaten the lives of the judges and juries. If so, the president can make the case for the commissions to proceed. But when he does so, Mr. Bush should announce who among the prisoners will face trial by the commissions, and under what criteria they will be selected.

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