Jeffrey Rosen: Military commissions or civilian trials for 14 terror suspects?

September 13th, 2006

A Terror Trial, With or Without Due Process
By JEFFREY ROSEN

SOME debates are so polarized, with the competing sides so certain that any compromise would be dangerous, that it's hard to imagine any middle ground emerging.

The argument over how to try the 14 terror suspects recently transferred from Central Intelligence Agency prisons to military custody at Guantanamo Bay seems to be one of them.

On one side is the Bush administration, which last week proposed that these suspects, whom it called the most dangerous in the war on terror, should be tried in military commissions under procedures that the White House asked Congress to endorse.

Under the Bush proposal, the trials would not resemble any civilian trials or courts-martial held in the United States. Hearsay evidence and evidence obtained under coercion or duress could be admitted. And suspects could be denied access to classified evidence, although it would be disclosed to their military defense lawyers.

On the other side of this debate are civil libertarians who insist that suspected terrorists can't receive fair trials unless they are given the protections of an ordinary court-martial – including the right to exclude hearsay and coerced evidence and the right to see evidence against them.

So, what's a fair trial and how much due process does it require? Can the suspected terrorists be tried by a tribunal that lacks some of the protections that military defendants ordinarily demand? Surprisingly enough, this is not a debate about what the law requires. Short of endorsing cruel and unusual punishments for terrorists, Congress can set up whatever military commissions it likes.
“The administration's proposals, if adopted by Congress, would almost surely pass muster with the Supreme Court,” said Peter Spiro, who teaches international law at Temple University. “Congress may not have complete carte blanche, but in the Hamdan case last June, four of the justices who voted against the commissions stressed that the president could always go back to Congress to get the authority he wanted.”

The issue, then, is more about the court of public opinion: how a trial, without the customary procedural rights, would be perceived in the United States and abroad.

Inevitably, the military commissions, whatever form they take, will be compared to the Nuremberg trials in which Nazi war crime defendants were given due process – up to a point.

“At Nuremberg, there was no secret evidence and no closed proceedings that the defendants' counsel was excluded from, although it's not clear how much physical access to the evidence the individual defendants had,” said John Barrett, who teaches at St. John's University law school. “Hearsay and evidence produced by coercive methods weren't formally excluded by the Nuremberg charter, but the American interrogators didn't do rough stuff like water boarding – although there might have been a corner or two cut that the coercion standard would find troubling.”

Many want the United States to meet this Nuremberg standard, which they believe gave it authority and credibility over the next half century to serve as a global model of due process.

“The trials shouldn't differ fundamentally from the fair trial provisions in any trial, especially when you have the potential death penalty or life in prison,” said Richard Goldstone, the South African chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. “To exclude a defendant from any part of the trial, or to withhold evidence from the defendant, seems to me, by any civilized standard, outside what is acceptable.”

He added, “The other objectionable provision is that evidence would be admitted even if obtained under duress or torture.”

But other legal scholars say that this is a different time. For one thing, they point out, the war is not over. “In a war situation, international commissions often use hearsay as long as it's reliable,” said Jack Goldsmith of Harvard Law School, who led the Office of Legal Counsel under President Bush.

Other scholars who defend the administration argue that national security cannot be compromised.

“The issue of access to classified information is pivotal,” says John Yoo, who helped the Bush administration draft an earlier version of the proposed commissions and who now teaches law at University of California, Berkeley. In his new book, “War By Other Means,” Professor Yoo argues that in the first World Trade Center bombing case in 1993, prosecutors had to give the defense a list of 200 unindicted co-conspirators. The list, he writes, was “delivered to bin Laden” and “was later found during the investigation of the African embassy bombings.”

Republicans in Congress are now negotiating with the Bush administration on a series of compromises. The military commissions may operate closer to the Nuremberg standard, but give the administration some of the authority it seeks. For example, one proposal would allow the use of hearsay and evidence obtained through coercion short of torture, while refusing to allow the use of evidence not disclosed to the defendant.

Could this satisfy critics? Some legal scholars suggest that a trial conducted along these lines could have international legitimacy as well as meeting basic standards of due process. Even Mr. Goldstone, the chief prosecutor for the U.N. tribunals, says that jettisoning the use of secret evidence would remove the “most objectionable” part of the proposal.

Professor Spiro of Temple University agrees. “The Republican moderates' proposal would come a lot closer to satisfying international opinion, and in part because it's coming from the Senate and not the administration,” he said.

Still, the atmospherics of the trial, and the fact that the defendants face the death penalty, may make it harder for the verdict to be internationally accepted.

“Guantanamo is now a rallying cry in Europe, so any trials that take place there will be tainted by that fact alone,” Professor Spiro said. “The administration would be well advised to allow the proceedings to be televised to avoid the image of a show trial.”

But televised proceedings might give the defendants a political platform to hijack the proceedings. “There's always a danger that this will degenerate into a political circus,” says Professor Goldsmith. “Slobodan Milosevic used the trial against him as a political platform, and Saddam Hussein is doing the same thing. The more procedural rights you give the defendant, the more you allow him to continue the war by other means.”

Professor Goldsmith says the debate about what a fair trial requires will continue throughout every stage of the terrorist trials – from the initial indictments to the actual trials to the Supreme Court appeals that would follow any death sentence. “There's a trade-off,” he said. “You can clamp down on access, but you do so at the cost of the perception of fairness, and finding the right balance of fairness and control is very hard.”

Jeffrey Rosen's latest book is “The Most Democratic Branch: How the Courts Serve America.”

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