Military tribunals flunk test of American values

President Bush condemned those involved in the Sept. 11 terrorist attacks as people who "can't stand freedom; they hate our values, they hate what America stands for."

So it stands to reason that we respond to those attacks and those who perpetrated them by loving freedom, our values and all that for which America stands.When the president asked Congress and the nation to "uphold the values of America," in the wake of the attacks, columnist Anthony Lewis said that would be a fair test of Bush's own terrorism policy: Does it uphold the values of America? We agree that is an appropriate measure.

Bush's executive order giving himself the power to convene military tribunals does not pass.

While many -- including the president -- talk of war, Congress has not declared war. Yet Bush has taken for himself executive authority historically reserved for times of declared war.

Bush grants himself the astonishing power to order a military tribunal for anyone he has "reason to believe" is a terrorist or "conspired to commit acts of international terrorism." Bush would also have the sole power to grant reprieve or pardon to those accused and convicted.

The tribunals can be held in secret. Nothing would require that defendants be told the evidence against them.

With military tribunals, there is no jury in the conventional sense. Three to five military officers serve as judge and as jury.

A guilty verdict need not be unanimous; only a majority of the officers must concur, even to impose the death penalty.

There is no judicial review or appeal. The sole check on the validity of this brand of judicial process lies with the same person who authorized the arrest and the prosecution -- the president.

There are no limits on admission of evidence, including hearsay evidence. The prosecution would avoid the standard criminal court obligation to turn over any exculpatory evidence it may find. Further, it's unclear whether the prosecution would be held to the traditional civilian standard of proving guilt beyond a reasonable doubt or the lesser standard of a mere preponderance of the evidence.

The tribunals can be convened abroad or in the United States. And while the president's order refers only to non-citizens, there is reason to worry that American citizens could be next. David Cole, professor of constitutional law at Georgetown University Law Center, fears that, "If a military tribunal is authorized at all, it would be authorized equally against citizens and non-citizens." The various rationales for this extraordinary order remain unconvincing.

One rationale is that non-citizens don't have the same rights as citizens anyway. Technically true, but hardly in keeping with the American value of "justice for all."

Another is that secrecy is needed to protect witnesses and jurors against reprisals. It's common in this country to try organized crime figures while maintaining the safety of witnesses and juries. The trial and conviction of those responsible for the first attack on the World Trade Center, for example, were accomplished without a secret tribunal.

Another is that conventional trials would put national security at risk by exposing sensitive information and sources. Again, the American judicial system has shown itself quite capable of conducting trials -- including espionage and terrorism trials -- without resorting to the Star Chamber.

Flimsiest is the rationale that a public trial would simply give the defendants a political showcase in which to spew ideology. Again, the American judiciary is capable of maintaining order, relevance and decorum in the courtroom.

And surely the Bush administration harbors no fear that the dictatorial, hate-mongering dogma of a handful of militant extremists could have any success in the court of public opinion. A fundamental American tenet is that the truth will out -- especially in court.

Attorney General John Ashcroft defends the military tribunals, declaring that "foreign terrorists who commit war crimes against the United States are not entitled to and do not deserve the protections of the American Constitution."

But in assuming this military tribunal system is good enough for "foreign terrorists," Ashcroft has violated a founding principle of our justice system -- the presumption of innocence. If the attorney general is so ready to presume guilt of anyone the president has "reason to believe" is guilty, why bother with the pretense of a trial at all?

In assuming the power to create military tribunals, the president has failed his own test of upholding the values of America.

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