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…

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