How evidence stacks up on military tribunals

When President Bush authorized the creation of military tribunals for suspected terrorists last November, he insisted they would provide "full and fair" trials.

Exactly how full and how fair is now coming into sharper focus. And as new details are disclosed, they're only adding more fuel to an already fiery debate over the propriety of the United States seeking to carve out a special, ad hoc brand of justice for those accused of terrorism.

It remains unclear how many tribunals may ultimately be held for suspected Al Qaeda and Taliban fighters. Some of the 550 detainees in Afghanistan and at Guantanamo may be transferred to their home countries for trial. Some may be designated as prisoners of war and held pending the outcome of the Afghan war. Others may be set free after interrogation and investigation.

And still others may be forced to stand trial before specially assembled tribunals of three to seven US military-service members, who – upon a unanimous vote – may order their execution.

The prospect of even a handful of military tribunals has some analysts concerned about how the world may perceive such an assertion of authority by the United States.

"It matters that justice be done and that it be seen to be done," says Allister Hodgett of Amnesty International in Washington. "It is difficult to imagine how justice will be done or be seen to be done if these military commissions operate as prescribed."

Lawyers at the Pentagon drafting the rules for tribunals have offered some modifications to address concerns of critics, such as guaranteeing a right to civilian counsel of choice, a right to examine evidence, and a right to open tribunals.

But the rules nonetheless offer no right to an appeal to an independent judicial authority, and they permit rules of evidence that are so lax that tribunals could, by a simple majority vote, agree to accept evidence and confessions obtained under torture.

Such lax rules are unacceptable in the US military-justice system, experts say.

Critics of the plan say it ignores US and international law and could establish a dangerous precedent that might condemn American military forces and civilians to identical treatment in future conflicts.

But Bush administration officials say the tribunals will help balance the need for a fair process with the need to protect the security of the nation. Supporters of the White House strategy say Osama bin Laden and his followers are stateless and lawless renegades who have disqualified themselves from the protections of the Geneva Conventions and international law through their own indiscriminately violent actions.

"Al Qaeda is different," says David Rivkin, a Washington lawyer who writes on international law and constitutional issues. "The Geneva Conventions do not apply to them, because they are not a state signatory [of the Geneva accords], they are a pan-national terrorist organization."

At the core of the disagreement between tribunal supporters and critics is the extent to which Mr. Bush has an obligation to conduct trials that are at least as "full and fair" as those of suspected war criminals facing justice before international tribunals and of US military personnel on trial before American courts-martial.

What is most controversial about Bush's plan is that it seeks to embrace the relatively low level of due-process protections that existed in Washington in 1942.

Instead of capitalizing on the nation's long tradition of leadership in the global fight for human and civil rights, critics say, the White House is seeking to conduct the tribunals at a level of justice that existed nearly 60 years ago – prior to a long list of significant advances in American and international legal systems.

"If they are to be effective in dealing with the war on terror, they have to be viewed at least by the majority of the civilized world as meeting accepted standards of justice," says Kevin Barry, a nationally recognized military-justice expert and board member of the National Institute of Military Justice.

Mr. Barry says the regulations and laws governing military justice have greatly evolved since 1942, including the US signing in 1949 of the Geneva Conventions, adoption of the Uniform Code of Military Justice in 1950, and the 1992 signing of the International Covenant on Civil and Political Rights.

"Our tribunals will be judged by those standards simply because those standards track with one another and all are derived from standards that the United States has proclaimed for all the world for a number of years," Barry says.

Mr. Rivkin disagrees. He says that, just as in 1942, those deemed to be "unlawful combatants" still exist outside the protections of international treaties and law.

"There are some due-process requirements [necessary in tribunals]," he says. "But there is a difference between people doing something in the international sphere and it becoming a binding norm."

Rivkin says that in the end, the quality of justice will depend on the fairness of those appointed to do the judging. "The notion that military guys are just going to railroad people just doesn't hold water," he says. "These are honorable people."