A Glorified Lynching

President George W. Bush’s recent executive order on the “Detention, Treatment and Trial of Non-Citizens in the War Against Terrorism” represents an extremely troubling shift in priorities on the part of the administration. The order, which provides for the trial of non-citizens suspected of terrorism by military tribunal rather than in a court of law before a jury of their peers, strikes at the very foundation of the American legal system. Its ramifications could render illegitimate the coming decade’s most important exercises of justice and would blacken the reputation of the United States as a nation governed by law.

According to the order, non-citizens accused of terrorism and tried before the tribunals—including legal immigrants who are permanent residents—could potentially lose the presumption of innocence along with many other rights central to the American conception of fair play. Before this tribunal, suspected terrorists—and the standard for suspicion is significantly lowered by the order—could be denied the right to see the evidence that would be presented against them. The military tribunal would be able to convene any time and in any place, including in secret locations inside or outside the United States—a shield from public oversight that seems to be a recipe for abuse.

Additionally, the tribunal would be able to both convict and impose sentences by a two-thirds majority of a jury of military officers, rather than the unanimous decision traditionally expected of juries for hundreds of years. And no matter what the outcome of their deliberations, the court’s actions could not be appealed to any court of the United States or of any state—in effect suspending the writ of habeas corpus that guarantees defendants their day in court.

Even in the interests of combatting terrorism, we cannot defend such a cavalier sacrifice of the fundamental principles of our legal system and of the liberties which make America a country worth defending. Should any accused terrorists be tried in this manner, the gross lack of due process will severely undercut the validity of the verdicts in the eyes of the world—and, more importantly, in the eyes of the American people.

The tribunals’ defenders, some administration officials among them, have argued that members of the al Qaeda terrorist network have been responsible for acts so horrific and so affronting to basic human values that they no longer deserve a jury trial. Yet the purpose of a trial is to determine the facts, through the presentation to a jury of convincing evidence that has been tested through the adversarial system. Once an individual’s guilt has been established, the sentence may follow—but the punishment for accused terrorists, like that for suspected mass murderers and alleged serial rapists, must come after the finding of guilt. Should even Osama bin Laden be brought before a judge in chains, we would hope that our nation would accord him just punishment through a process that is something more than a glorified lynching.

The prosecution of such unconventional cases would be complex, and many have claimed that the case would take too long to build to be heard before a federal court. Yet this is only an argument why the Justice Department should be given the resources to prosecute cases of terrorism quickly and effectively, not mask its inability to do so by a process that saves the expense at the cost of fundamental rights. If our government has sufficient reasons to condemn a suspect in a military tribunal, it has sufficient evidence to convict that suspect in a court of law.

Some of that evidence may have been generated by our intelligence agencies, and publicly disclosing the means by which it was gathered could compromise our intelligence assets. However, although we are deeply concerned by the justice system’s current provisions for the use of secret evidence, we see no reason to extend these efforts through the use of wholly secret tribunals. The federal bench is well qualified to handle cases of this nature, and there is no reason to compromise further the accused’s ability to mount an effective defense or the public’s ability to confirm that justice has been done.

Finally, the administration’s concern for the safety of jurors is welcome but misplaced: If jurors are allowed to participate in trials of members of organized crime syndicates, why would they be at any greater risk from suspected terrorists?

Bush’s order has already complicated America’s efforts to build a coalition against terrorism, and it has damaged our international standing even among allies—the Spanish government has already refused to extradite members of al Qaeda unless they can be guaranteed a civilian trial. Our efforts to fight terrorism must not be hindered by the administration’s refusal to heed universal norms of fair play.

By removing cases of terrorism from the federal courts, the United States risks losing an opportunity to send a message to the world much like the one sent by the Nuremberg trial—that our nation’s commitment to impartial and transparent justice will not be shaken by even the most inhuman atrocities.