Shrinking tribunals

President Bush’s decision to try the suspected 20th hijacker in a regular federal court is good news for those who feared the broad sweep of his harshly drafted Nov. 13 order authorizing military commissions or “tribunals” for the trial of any non-citizens thought to be involved in terrorism.

Zacarias Moussaoui, a French-Moroccan, was arrested in Minnesota in August after he had aroused suspicions at a flight school by paying $6,300 in cash to learn to fly jumbo jets when he didn’t have even have a novice pilot’s license. Subsequent investigation turned up recent movements that closely mimicked those of the 19 Sept. 11 hijackers. He got large sums of money from other suspected hijackers, trained in a terrorist camp in Afghanistan, studied crop dusting, bought knives, and seemed to be preparing to join one of the doomed passenger jets.

After the September attacks, conservative legal activists pressed the Bush administration to establish the special military courts, Mr. Bush issued his order, and some officials pegged Mr. Moussaoui for the first such trial.

Widespread criticism developed, however, over the projected military courts. Many lawyers and law professors questioned the details of the plan, both its wholesale coverage and its restriction of normal protections granted defendants in civil courts. European governments objected to its terms. Robert E. Hirshon, a Portland lawyer who is president of the 400,000-member American Bar Association, suggested that elements in the war on terrorism could erode the constitutional Bill of Rights.

As recently as last week, Attorney General John Ashcroft defended the use of the tribunals both at home and overseas. But in

a reported struggle within the administration over where to try Mr. Moussaoui,

Mr. Ashcroft apparently came out in favor

of a civil trial. Some Justice Department lawyers are said to have been reluctant to give up a major career-building case. Some

of them wanted it tried in New York, where bombers of two U.S. embassies in Africa had been tried successfully. But the decision was made to try the case in Virginia, where it was deemed that a death sentence could more easily be approved.

Secretary of Defense Donald Rumsfeld, who is said to have favored trial in a military court, has nonetheless hinted that the guidelines his department is drafting will soften some of the rough edges of the president’s order. Other officials have suggested recently that military courts will conform to the long-standing U.S. Code of Military Justice, which sets the rules for trials of members of the U.S. armed services and for prisoners of war. That code requires a unanimous vote by a military court for a death penalty, whereas the president’s order requires only a two-thirds vote for all sentences, and specifies an elaborate appeal process.

The decision on Mr. Moussaoui seems to mean that the special military courts will be used, if at all, only for top figures in the radical Islamic conspiracy such as Osama bin Laden. The original order said it covered any individual whom the president had reason to believe was a member of the al-Qaida conspiracy, aided international terrorism, harmed or threatened to harm the United States or its citizens, or knowingly harbored any such individual.

The order appears to have been drafted in a hurry. It looks as if cooler heads have prevailed and, with few exceptions, America’s judicial system can carry on as it has for more than two centuries.