The Trouble with the Tribunals

In the February 28 issue of The New York Review, I argued that even if national security requires our government to ignore traditional rights of accused criminals in pursuing and trying suspected terrorists, it must nevertheless recognize that it acts unfairly in doing so, and it must therefore violate those rights only when the violation is demonstrably essential. I cited, as one example of the government’s failure to respect that requirement of decency, President Bush’s Military Order of November 13, 2001, in which he declared that noncitizens suspected of terrorist activities, including prisoners captured in Afghanistan and held at the American military base at Guantánamo Bay, might be tried before military tribunals with almost none of the traditional safeguards against wrongful conviction, and with no appeal to civilian courts. This proposal (unlike several other examples of actual and proposed injustice that I described) was sharply criticized by many conservatives as well as liberals, and in December the President promised to reconsider its most criticized provisions.

He asked Secretary of Defense Donald Rumsfeld to prepare a set of rules governing the composition and procedures of military tribunals, and the Defense Department consulted an impressive list of advisers, including Lloyd Cutler, a well-known Washington lawyer who has advised several Democratic presidents, and Griffin B. Bell, who was President Carter’s attorney general. On March 21, the Defense Department released the rules, which seemed, as predicted, to eliminate the most worrying features of the President’s original order. Defendants tried in military tribunals will now be presumed innocent until proved guilty beyond a reasonable doubt. They will be provided, at government expense, with assigned defense lawyers drawn from the trained legal staff of the American military; and they may also hire if they wish, at their own expense, any other American lawyer who has been cleared for classified secrets. With some important exceptions, the trials will be open to journalists and to the public.

A defendant need not testify, and the tribunal is instructed to draw no adverse inference from his failure to do so. He and his lawyers will have advance information about evidence to be introduced against him, and his lawyers may cross-examine prosecution witnesses. A two-thirds vote of the tribunal is required for a finding of guilt, and for the imposition of any sentence, except that a unanimous vote is required for a death sentence. The rules specify various review procedures, by the president, the secretary of defense, and by a review board appointed by the latter. But they make no allowance for any appeal to the ordinary federal courts. It is the administration’s position that if the tribunals are held abroad those courts will have no jurisdiction.

These new rules were well received by many critics of the President’s original proposal. The Democratic chairman of the Senate Judiciary Committee, Patrick Leahy, praised Rumsfeld for “listening to advice” and “taking steps that have substantially improved this proposal.”¹ Rumsfeld himself was more than satisfied with the fairness of the new rules. “If one steps back from examining the procedures provision by provision,” he said, “and instead drops a plumb line down through the center of them all, we believe that most people will find that taken together, they are fair and balanced and that justice will be served in their application.”²

Unfortunately, when one examines the new rules “provision by provision,” that favorable plumb line perception evaporates. The rules allow the secretary of defense or the presiding officer of each tribunal to close the trial proceedings to the public and the press when either of them determines that this is necessary to guard the secrecy of “classified or classifiable” information, to protect the physical safety of members of the tribunal or prosecutors or prospective witnesses, or to safeguard “intelligence and law enforcement sources, methods, or activities” or “other national security interests.” If part of a trial is conducted in secret for one of those reasons, the defendant may also be excluded from that part, along with any private lawyer he has hired, in spite of the fact that any such lawyer would be an American with a security clearance.

The power to close a trial for these reasons seriously undermines the promise of public trials: it leaves the defense secretary or the presiding officers free to close to the public the crucial parts of almost any military tribunal trial they wish to keep secret, because almost all evidence that might be used against accused terrorists could be thought sensitive, and almost any witness who might testify against them could be thought in danger of reprisals. Of course the government must guard classified information, keep its intelligence sources secure, and protect its personnel and witnesses. But secrecy and witness protection are also at stake in many ordinary criminal trials, and American judges have developed procedures, including restricted court sessions, that safeguard those interests without corrupting a trial’s fairness, as Rumsfeld himself conceded at his press conference.³ In US v. Osama bin Laden, for example, in which a number of defendants were convicted of participating in the bombing of American embassies in Nairobi and Dar es Salaam, the court interpreted the federal Classified Information Procedures Act to permit the prosecution to require defense lawyers to receive security clearances before being allowed to review classified information pertinent to the trial.⁴

If the Bush administration had been content to try all suspected terrorists in ordinary courts, those familiar measures could have been used again. If it had insisted on military tribunals, as it has, but allowed appeals from guilty verdicts to the ordinary appellate federal courts, then civilian judges could have reviewed the evidence presented in the closed portion of a trial, in confidential proceedings, to determine whether that evidence supported a guilty verdict. But the decision the government has now made—to allow trials to be closed and to prevent appeals to civilian courts—is indefensible. The new procedures permit a prisoner to be tried in secret and sentenced to death on evidence that neither he nor anyone else outside the military—no one, that is, who is not under the Pentagon’s direct command—has even heard. That plainly increases the risk of wrongful convictions and executions, and the added risk is unnecessary. It would not have compromised national security to permit appeals to appellate federal judges.

On the same day as the Pentagon released the new rules for military tribunals, its chief lawyer, William J. Haynes II, added a further surprise.⁵He said that the government might not release accused terrorists who had been tried by a military tribunal and acquitted, but might continue to detain them, perhaps indefinitely if they were thought to be still dangerous. So the administration reserves the right not only to try accused terrorists in secret, but to continue to lock them up even if they are found not guilty. Another Pentagon official, Douglas Feith, argued that someone acquitted of one crime in civilian courts might still be arrested and tried for another. That is true, provided that the second alleged crime is genuinely independent of the first one. But ordinary defendants are protected, by writs of habeas corpus, from indefinite detention before being charged; and civilian courts would not permit serial unsuccessful prosecutions designed only to keep someone in jail who cannot be convicted of anything. We have no right to roam the world arresting foreigners we think might be dangerous and keeping them in our jails when we cannot show them to have committed any crime.⁶

Haynes said that indefinite detentions of prisoners that a military tribunal had acquitted might be necessary because the prisoners are “dan-gerous people,” and because “when somebody’s trying to kill you or your people, and you capture them, you can hold them.” If he meant that we are entitled to hold prisoners captured in Afghanistan indefinitely without convicting them of any crime because they are prisoners of war, then the government should be embarrassed that it has refused to acknowledge that these prisoners have that status, or even to convene the tribunals demanded by the Geneva conventions to determine whether they do. If he meant to declare all the prisoners guilty of war crimes in advance, as Bush apparently did when he declared that the prisoners are “killers,” then his remarks provide fresh reason to question the fairness and independence of military tribunals that are so firmly under the administration’s control. Fear is understandable, but it should not sap our judgment and our decency.

—March 28, 2002