- The Washington Times - Friday, January 4, 2002

Ever since President Bush announced his order establishing military tribunals, his administration has come under heavy fire from the left and right for failing to include specific safeguards to prevent innocent people from being railroaded. The administration has clearly been trying to respond to critics' questions and come up with more specific information about how tribunals would function and what protections would be provided for the accused. If information leaked to the New York Times and reported last Friday proves to be accurate, the new draft contains marked improvements, which could allay some legitimate civil-liberties concerns.
The new draft would require a unanimous verdict to impose the death penalty, as opposed to a two-thirds vote required under the president's original plan, and it would require that a defendant be presumed innocent. The new regulations also specify that a tribunal may only convict someone after deciding that he is guilty beyond a reasonable doubt the standard of proof used in civilian criminal trials. Also, the tribunals would be open to the news media and would only be closed to prevent the disclosure of classified information. Perhaps the most significant change from the original Bush proposal would be the provision creating an appeals process. After the verdict and sentencing by the military tribunal, which would consist of at least five uniformed officers, the decisions would be reviewed by a separate three-member panel that would make a recommendation to the secretary of defense. The president would have the final word on approving a sentence.
One difference between the tribunals and regular civilian courts would be that military judges do not have to exclude hearsay and other kinds of evidence that a "reasonable person" would find useful, such as Osama bin Laden's infamous videotape. It definitely seems reasonable to include evidence from the mouth of the mastermind of the September 11 bloodbath as part of the suspects' trials.
Even so, the administration appears to have lost much of its earlier enthusiasm for employing military tribunals especially for suspects arrested on American soil. Mr. Bush's decision to try Zacarias Moussaoui in federal court in Virginia was a clear sign that the administration was rethinking the very concept of military tribunals for al Qaeda terrorist suspects. Mr. Moussaoui, who is accused of multiple counts of conspiracy in connection with the September 11 plot, seemed to be the very sort of individual Mr. Bush had in mind when he announced the formation of tribunals. Yet, Vice President Dick Cheney told The Washington Times last month that the president decided to try Mr. Moussaoui (whose trial is slated to begin in October) in federal court based in part on his assessment that an open trial would not compromise national security. The draft regulations for military tribunals are another indication that the administration understands that there need be no conflict between bringing accused killers to justice and ensuring a fair and open trial for the accused.

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