- The Washington Times - Thursday, February 14, 2002

Some problems don't have good solutions. How to deal with members of al Qaeda and other suspected terrorists who fall into U.S. hands, in Afghanistan or elsewhere, is one such problem.

In his Nov. 13, 2001 executive order, President Bush directed that "military commissions," not American courts, try any al Qaeda operatives, known or suspected, and other terrorists, provided they are not U.S. citizens.

Much in the order gives pause to anyone who believes that American standards of jurisprudence particularly Constitutional and statutory safeguards to protect the accused from the power of the state are an essential part of American democracy and our sense of fair play. The troublesome provisions are signaled in the sixth of the president's findings, "that it is not practicable to apply in [the] military commissions … the principles of law and the rules of evidence generally recognized in the trial of criminal cases in" U.S. federal courts.

The commissions, which presumably would sit abroad, are to proceed subject to rules to be prescribed by the secretary of defense, the president's lieutenant. In other words, the commissions will be adjuncts of the executive branch, not independent of it, as are federal courts. That alone raises doubt as to whether the defendants will be tried fairly.

Unanimous jury verdicts to find guilt will not be required. The commissions can find guilt by a two-thirds vote and impose sentences the order specifically mentions death and life imprisonment by two-thirds vote. Appeals can be made only to the president or, at his discretion, to his secretary of defense.

This is a stacked deck, and not pretty. The prosecution, trial rules and appeal are all in the hands of the president. Values Americans hold dear are compromised because of the exigencies of the war against terrorism.

And yet, this question arises: Are suspects who are not U.S. citizens, and who are taken into custody abroad in a war, entitled to all the constitutional provisions given to Americans? I, and people more knowledgeable than I, don't see that there is an automatic "yes" answer to that question.

But even if the answer is a confident "no," we Americans have to satisfy ourselves that we have behaved in a way that will not come back to haunt us. Think of Americans who may be prosecuted by foreign governments at some future time. Ask whether we will regret later that we deviated from our cherished principles.

If he is not to back off altogether which is most unlikely and opt for the international tribunals many would prefer, the president needs some damage control. There is a single modification he could make that would mitigate the defects in his executive order. He could require that the trials be open to observers and reporters from many countries.

With open trials, the world will know what the evidence was what the defense replied. If the officers sitting as triers of fact and law look down into the face of world opinion each day, they will be reminded each day that mankind is watching how they conduct themselves and how they deal with the defendants. They will be accountable, and they will know it.

The executive order provides for closing the trials to protect the identity and lives of informants in other countries, or perhaps to safeguard methods of gathering intelligence. Observers and the press might be excluded from the courtroom for brief intervals, as happens in our federal courts. (One wonders whether the government would seek to exclude even the defendant, who by assumption is a security risk.) The commission's decisions to close the proceedings could be appealed to a U.S. court under expedited procedures.

Although I might like to amend several provisions of the president's order, no change is as important as requiring that the trials be open. Otherwise, there will be endless speculation and rumor about what happened. And, inevitably, there will be comparisons to infamous closed-door trials under dictatorships, such as occurred in the Soviet Union.

Open proceedings will show the world that even in the exigent circumstances that now engulf us, and despite the trial conditions prescribed by the executive order, the United States is committed to fair trials. The world must recognize this if we are to continue to serve as a model of democracy.


Edward Cowan, a retired New York Times correspondent, is an editor at the American Enterprise Institute.


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