Tribunal Justice

Revised rules for the military tribunals to try prisoners charged with terrorism are so fraught with restrictions that they risk being viewed throughout the world as kangaroo courts. So, it was appropriate that the military trial proceedings against two British suspects were suspended Friday due to lobbying from Prime Minister Tony Blair. Until better procedures are in place, the same should happen to the proceedings for the four other suspects.

President Bush has designated six suspects as eligible for trial by tribunal. Their names have not been given, but published reports say two are Britons and one is an Australian. Defense lawyers’ associations are so upset by the narrow rules that they may encourage a lawyers’ boycott of the military trials, which are expected to be conducted at the U.S. naval base at Guantanamo Bay, Cuba.

Rules were even narrower when Mr. Bush authorized the special military courts shortly after the Sept. 11, 2001, terrorist attacks. His original order said defendants could not retain private lawyers but had to rely on appointed military counsel. It also ruled out appeal to civilian courts and provided only a military chain-of-command appeal process with the president having the final say. It would have permitted hearsay evidence. And it required only a two-thirds vote of the military judges to impose a sentence including the death penalty.

After considerable outcry, the original rules have been relaxed somewhat, although it remains unclear whether a defendant could invoke habeas corpus or appeal a conviction to federal courts.

A recent outspoken complaint about even the revised rules came from Lawrence S. Goldman, president of the 11,000-member National Association of Criminal Defense Lawyers. Writing in the association’s Champion Magazine, Mr. Goldman said the rules were “stacked against the detainees.” He wrote that the American criminal defense bar has traditionally represented the despised ever since John Adams in 1770 represented the British soldiers accused of the Boston Massacre. He went on: “In view of the extraordinary restrictions on counsel, however, with considerable regret, we cannot advise any of our members to act as civilian counsel at Guantanamo.” He said the rules “are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally.”

A further complication has arisen in the civilian prosecution of terrorism suspect Zacarias Moussaoui. The Justice Department defied a U.S. district judge by refusing to let the defendant question an al-Qaida witness to support his claim that had no part in the Sept. 11 conspiracy. The impasse raised the possibility that the Virginia judge will dismiss the case, which might then go into a military tribunal. Since Mr. Moussaoui is a U.S. resident alien, that would raise the question of whether such a person would enjoy some of the protections guaranteed by the U.S. Constitution.

Increasing complications involving the tribunal system confront the Bush administration with the problem of how to convict and punish terrorists and at the same time demonstrate fairness that will persuade the rest of the world that justice is being done.

A further complication is the fact that the U.S. State Department’s annual reports on human-rights violations have castigated Burma, China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan and Turkey for using similar military tribunals to try civilians.

The world will be watching to see whether the United States practices what it preaches.