The Trouble with Tribunals; Injustices Have Not Been Cleansed from the System

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

Despite John Ashcroft's warning that critics of the administration's war on terrorism are giving aid to our enemies, a stinging chorus of dissent - from left to right - greeted the president's original military order for military tribunals.

In response, Secretary of Defense Donald Rumsfeld - who has a bright future in television once he leaves office - was assigned the responsibility of damage control, and released revised regulations.

Under Mr. Rumsfeld's direction, some of the egregious excesses of the president's original version have been modified. Keep in mind that George W. Bush and the rest of his administration have continually said that everything they do in the war against terrorism will be within "the bounds of the Constitution."

The tribunals are now called military commissions, and the trials will be open to all, including to the press. Evidence will have to show guilt beyond a reasonable doubt. The defendant will get military lawyers at no charge. If he can afford it, he can hire a civilian lawyer, who will have to be cleared for security purposes.

However, serious violations of the essence of our system of justice - due process (fairness) - remain. A glaring example is the standard by which evidence will be admitted at the trials. Any evidence that has "probative value to a reasonable person" will be allowed.

As Barbara Bradley, National Public Radio's knowledgeable reporter on legal matters, points out: "That means hearsay or second-hand evidence" will be allowed - contrary to the rules of our civilian federal courts. Hearsay encompasses gossip, rumors, assertions and accusations that cannot be verified. And, it is possible that witnesses can use pseudonyms.

The authenticity of evidence is crucial to verdicts of guilt or innocence. Jonathan Turley, a constitutional law professor at George Washington University, has had extensive experience as a lawyer in national security cases in federal courts, including civilian courts. In the Los Angeles Times, Mr. Turley emphasizes the distance between parts of the Rumsfeld tribunals and the American rule of law:

"It is clear that the new rules were written by prosecutors to govern their own prosecutions. The biggest changes are in areas prosecutors find inconvenient - such as proving that evidence is authentic before using it. …