- The Washington Times - Saturday, September 23, 2006

On Nov. 13, 2001, President Bush issued an executive order authorizing the trial of suspected terrorists by newfangled military tribunals. Citing the “extraordinary emergency” created by the terrorist attacks just two months earlier, Mr. Bush rejected the procedures of civilian courts and of courts-martial convened under the Uniform Code of Military Justice, opting instead to create a streamlined system governed by rules the Pentagon would make up on the fly.

Five years later, no one has been tried by these tribunals, which the president implied were so urgently needed he had no time to consult with Congress — something he is getting around to only now, and only because the Supreme Court insisted. Had Mr. Bush taken a more collaborative approach, the issue of how to handle accused terrorists could have been settled sooner. His failure to do so reveals an administration so focused on asserting unilateral executive power that it undermines its own professed goals.

If Mr. Bush had gone to Congress in 2001, he probably would have won quick approval for special tribunals, and any subsequent litigation would have focused on the constitutional rights of noncitizens in military custody charged with terrorism. Because he declined to seek congressional authorization, he set the stage for (at least) two rounds of litigation, the first addressing the statutory basis for the tribunals, the second addressing their constitutionality — an issue the Supreme Court left unresolved in Hamdan v. Rumsfeld, the decision rejecting Mr. Bush’s original tribunal plan.

As it is, the House is poised to approve administration-proposed rules, while the Senate is likely to approve a deal reached with the White House Thursday to provide more protections for the accused. Dissident Republicans led by Sens. John McCain of Arizona, Lindsey Graham of South Carolina and John Warner of Virginia have objected to the admission of hearsay and coerced testimony and insist defendants should see all evidence against them.

Hearsay, testimony based not on direct knowledge but on secondhand reports or rumor, is generally inadmissible in civilian and military courts (with some exceptions) because it’s considered unreliable and cannot be rebutted by cross-examination of the original source. The original Bush plan would have allowed hearsay whenever the presiding officer thinks it is probative and reliable. The same standard would have applied to evidence obtained through coercion, usually seen as suspect because someone under physical duress tends to say what he thinks the interrogator wants to hear, whether true or not.

The combination of these two rules would have compounded the threat to a fair trial. Suppose a prosecutor tries to present a statement from a prisoner subjected to “tough techniques” — which might include methods like sleep deprivation, uncomfortable temperatures and simulated drowning — who claimed he heard the defendant underwent weapons training at an al Qaeda camp.

The aspect of the president’s plan that had aroused the strongest objections from congressional critics and military lawyers, including the judge advocate general of each service, is that it would have allowed convictions based on classified evidence he never sees, compromising a basic procedural safeguard that predates the Constitution. “‘Trust us, you’re guilty, we’re going to execute you, but we can’t tell you why?”’ says Mr. Graham. “That’s not going to pass muster; that’s not necessary.”

The president should be thankful to critics like Mr. Graham for their efforts to correct the most glaring deficiencies in his tribunal plan. Justice Anthony Kennedy, who is apt to provide the swing vote in future Supreme Court cases dealing with the tribunals, said repeatedly in his Hamdan concurrence that whatever rules Congress approves have to conform with the Constitution, suggesting the court may be receptive to due process challenges.

Beyond the constitutional issues, there’s no point to proceedings that will be perceived as show trials with foregone conclusions instead of honest efforts to arrive at the truth. Members of Congress might have told the president that back in 2001, if he had been willing to listen.

Jacob Sullum is a nationally syndicated columnist.

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