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The good, less good and no good at all about the modified military tribunals

Published Sep. 2, 2005

Those of us who denounced the Bush executive order last year setting up military tribunals for noncitizens _ and who were then besmeared by Attorney General John Ashcroft for "aiding terrorists" _ now feel somewhat reassured by Defense Secretary Don Rumsfeld's "refinement" of the hasty order.

The Pentagon rules made public Thursday give suspected terrorists the rights (1) to the presumption of innocence; (2) to choose counsel and to see the prosecution's evidence; (3) to trial in public _ a great human right _ though classified information will be kept secret; and (4) to remain silent with no adverse inference to be drawn.

The prosecution will be required to prove guilt beyond a reasonable doubt, the standard for trials of U.S. citizens. Military judges, who can convict on only a two-thirds majority, must be unanimous in any decision to impose the death penalty. The president's initial order, which imperiously claimed "a final decision by me" on the outcome of these trials, has been modified (nobody dares say "reversed") by the Pentagon rule stating that a verdict of not guilty "shall not be changed."

That's all to the good. So is the element of speed in the tribunal idea; if need for information about a terror attack is urgent, a quick charge and plea bargain could generate confessions. That is the motive behind the notion of these tribunals: not so much to do justice as to get lifesaving "preventive intelligence."

Here's what's less to the good:

+ No jury. There is none in a court-martial either, but at least the Uniform Code of Military Justice allows the accused a say in the composition of the panel of judges _ a buck private, for example, can demand that an enlisted man be included, which introduces a peer in judgment. In doing justice, nothing beats a jury of one's peers.

+ Hearsay is accepted as evidence. The rules of evidence are loosened to that with "probative value to a reasonable person." Because "probative" means "tending to prove," that means once-removed testimony and documents found in caves that have been through several hands would be admissible. Not our usual standard, but understandable.

Here is what is no good at all:

+ No civilian review. An appeal procedure is only to a panel of judges appointed to or by the military, which means no truly independent review. The non-citizen tried by the United States outside the United States would have no appeal to our federal courts.

+ Indefinite detention. Not a word is said in the Pentagon rules about that contentious issue at all. It is not in the American system of justice to hold a suspect in jail for long without trial.

+ No participation by Congress in the making of what is undoubtedly law. Bush believes it would dilute the presidential war power to submit this alternative judicial system to the usual lawmakers in the House and Senate. But ours is a government of laws, not of executive fiats. The Uniform Code of Military Justice and the Court of Appeals for the Armed Forces are creations of Congress and do not weaken the executive branch. Besides, the war on terror is supposed to be a unified effort _ why go it contemptuously alone in setting up an extraordinary military judiciary?

Thus, the Pentagon effort partly sets right a deeply flawed executive order. This is not the first time this year that Bush has stepped back from the brink of hubris; last month he coolly compromised his ill-advised "executive privilege" confrontation with Chairman Dan Burton's House committee investigating the FBI's three-decade coddling of criminal informants in Boston.

In his correction of the other Ashcroft blunder on tribunals, Rumsfeld directed the Pentagon counsel William Haynes II to draw on the wisdom of outsiders, including William Webster, Lloyd Cutler, William Coleman, Newt Minow, Bernard Meltzer, Ruth Wedgwood and Griffin Bell. (I'm told that Haynes was careful to see them individually so as not to trigger the Federal Advisory Committee Act. This shows what the administration learned from the vice president's energy advisory panel mistake.)

Federal prosecutors recently decided not to use terrorist tribunals in trying the "20th hijacker" or the "shoe bomber." Let's hope that means last year's notion of circumventing the civil courts, even as now refined, will quietly be shelved.

William Safire is a New York Times columnist.

New York Times News Service