Secret military tribunals worthy of condemnation

[thedrifter]

Secret military tribunals worthy of condemnation

In 1770, a young Boston attorney put aside his law practice to defend British soldiers accused of killing five people when a mob attacked them. He took the unpopular case because he believed in justice. And he won.

That lawyer was John Adams, who became the nation's second president.

How truncated our sense of justice has become more than 200 years later.

This month, President Bush authorized the Pentagon to convene military commissions (a form of military tribunal) to try six "illegal enemy combatants" under rules that exclude due-process rights that other military courts provide. Two of them are British citizens and one is Australian. And those countries, allies who sent troops to fight alongside ours in the invasion of Iraq, are angry.

Certainly there is nothing wrong with using military commissions to try foreign terrorists captured in the war in Afghanistan -- if the rules are fair, if undue secrecy is avoided and if there is a provision for independent judicial review. (National security is a lame excuse for excluding such review; American courts can hold closed hearings.)

Were it not for Australian and British sources, the American public would not know the names of any of the six individuals whom President Bush says he "has reason to believe" are al-Qaida members. The public still doesn't know the names of the other three. We don't know the likely charges, when or where they will be tried or where they are being held.

And we may never know. Final decisions about who will face a military commission -- a panel of five to seven military officers -- are being left to one of the Pentagon's best-known hawks, Deputy Secretary of Defense Paul Wolfowitz.

At one time, Defense Secretary Donald Rumsfeld said military commission rules would provide due process like other military courts. But the final rules resemble those of a kangaroo court. For example, they allow evidence to be presented secretly only to the military judges -- evidence neither the accused nor his lawyer will ever see.

As a result of such procedures, the National Association of Criminal Defense Lawyers warned its members it would be unethical to represent anyone before such a military commission. A lawyer could not prepare an independent defense because he would have to sign a pledge in advance to allow the government to monitor his conversations with his client, to approve his research and his interviews with witnesses on behalf of his client.

Eugene Fidell, president of the Military Justice Institute, says his organization urged the Pentagon to publish the rules and give lawyers and the public a chance to comment on them. (The Pentagon asked for comments on only one of its eight sets of rules.) Fidell, a well-known authority on military justice, says he personally believes it's a mistake to exclude, as the rules do, a chance for judicial review by the 52-year-old U.S. Military Appeals Court. That court's decisions can also be reviewed by the U.S. Supreme Court.

The overriding issue is the erosion of public confidence in America's administration of justice, not just at home but around the world. The Australians, for example, are already threatening to withhold, rather than share, some of their intelligence on terrorism. Congress should shore up justice in these cases by passing a law requiring judicial review of decisions made by the military commission. The nation needs a few more John Adamses.

Equal Time.......

Military commissions will provide detainees fair trial

By BRYAN G. WHITMAN


Al-Qaida is at war with the United States. Al-Qaida operatives flew airplanes into the World Trade Center and Pentagon, killing thousands, and another planned strike of unknown proportions was only thwarted by heroic passengers who caused a fourth plane to crash in a field in Pennsylvania.

In other cases, operatives attacked the USS Cole and most recently struck civilian targets in the Middle East. There is no reason to believe other equally sinister plots are not now being planned by al-Qaida. Only the concerted effort of all U.S. government agencies, as well as our allies, have prevented similar catastrophes of equal proportion to Sept 11.

As long as al-Qaida continues to wage war, the United States has the right to self-defense and to detain enemy combatants who would otherwise continue to attack the nation. The detainees at Guantanamo are those who would continue to attack America.

The United States has no interest in detaining anyone longer than necessary, and has released approximately 40 people from Guantanamo who were no longer a threat to the United States in the war on terror, had no further intelligence information to prevent future terrorist attacks and were not appropriate for criminal proceedings.

Some detainees may be prosecuted for war crimes. Military commissions have historically been used to try violations of the law of war. They take into account the unique battlefield environment that is different from peacetime criminal law enforcement processes in the United States.

Different does not mean unfair. And in fact, many of the same principles seen in civilian courts every day are part of military commissions.

Military commissions include the following protections: the presumption of innocence, proof of guilt beyond a reasonable doubt, an attorney to represent an accused, nothing said by an accused to his attorney may be used against him and no adverse inference for choosing to remain silent. Commission panel members will have as their primary duty ensuring a full and fair trial, and we have every confidence this will happen.

The war on terrorism is ongoing. Commissions allow for a full and fair trial while safeguarding protected and classified information to ensure intelligence information is not gained by al-Qaida that is used to launch new terrorist attacks. Although commissions allow for closed sessions to safeguard this national security information, the remainder of commission sessions will be open. The public will be able to see that the process is fair and that all accused will get their day in court.

Military commissions are the appropriate way to provide a full and fair trial, prevent future terrorist attacks and resolve the criminal cases of certain enemy combatants who have chosen to wage war against the United States.


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Bryan G. Whitman is U.S. deputy assistant secretary of defense for public affairs.



U.S. in Africa

Has the U.S. compromised civil liberties in its prosecution of terrorists?

http://www.ajc.com/opinion/content/o...4tribunal.html


Sempers,

Roger