Terror Case Failures; Suspects Should Be Tried in Open Court

Article excerpt


In wide reporting on the Bush administration's failure - in our first war-crimes trial since the aftermath of World War II - to convict defendant Salim Ahmed Hamdan of the most serious charges against him, the press somehow omitted the June 4 assurance by our chief law enforcer, Attorney General Michael Mukasey, that the Guantanamo military commissions would represent the best tradition of the American legal system.

As a voter, I want to know who John McCain and Barack Obama have in mind for their attorney general, because all three of Mr. Bush's chief law-enforcement officials have enabled the incumbent president to do with regard to the Guantanamo Bay military commissions and much else what Justice Anthony Kennedy warned against in this year's Boumediene v. Bush decision, a ruling that restored habeas corpus rights to the prisoners at Guantanamo Bay: To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say what the law is. By refusing to convict Mr. Hamdan of the most serious charges against him, the senior military officers on the jury at least partially concurred with Justice Kennedy.

As Amnesty International said in response to the trial, it revealed what is common knowledge, [that] the military commissions are fatally flawed and do not adhere to major aspects of the rule of law. American law! To try terrorism suspects, we do not have to suspend due process and other fundamentals of American justice. The Human Rights First organization, based in Washington and New York, has attended nearly every military commission hearing, including Mr. Hamdan's, since they began in 2004. The next president, Congress and attorney general would be well advised to read Human Rights First's current report, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. Two former federal prosecutors, Richard B. Zabel and James J. Benjamin Jr., have examined more than 120 international terrorism cases prosecuted right here in the criminal justice system and its courts during the past 15 years. They range, notes Human Rights First, from epic mega-trials such as those involving the first attack on the World Trade Center (1993) and the East African embassy bombings (1998) to individual, pre-emptive prosecutions focused on prevention. Messrs. Zabel and Benjamin pored through motion papers, judicial opinions, trial detention procedures, rules for protecting classified evidence and the admissibility and authentication of evidence collected abroad. They also interviewed judges presiding over those terrorism cases as well as prosecutors and defense attorneys.

While the Bush administration is still trying to defend its crumbling Guantanamo Bay commissions, scheduling more trials to come as if there will be no elections in November, Mr. …