On Nov. 13, 2001, President Bush issued an executive order authorizing the trial of suspected terrorists by newfangled military tribunals. Citing the "extraordinary emergency" created by the terrorist attacks that had occurred just two months earlier, Bush rejected the procedures of civilian courts and of courts-martial convened under the Uniform Code of Military Justice, opting instead to create a streamlined system governed by rules the Pentagon would make up on the fly.
Five years later, no one has been tried by these tribunals, which the president implied were so urgently needed that he had no time to consult with Congress — something he is getting around to only now, and only because the Supreme Court insisted. Had Bush taken a more collaborative approach, the issue of how to handle accused terrorists could have been settled sooner. His failure to do so reveals an administration so focused on asserting unilateral executive power that it undermines its own professed goals.
If Bush had gone to Congress in 2001, he probably would have won quick approval for special tribunals, and any subsequent litigation would have focused on the constitutional rights of non-citizens in military custody charged with terrorism. Because he declined to seek congressional authorization, he set the stage for (at least) two rounds of litigation, the first addressing the statutory basis for the tribunals, the second addressing their constitutionality — an issue the Supreme Court left unresolved in Hamdan v. Rumsfeld, the decision rejecting Bush’s original tribunal plan.
As it is, the House is poised to approve the administration’s proposed rules, while the Senate is likely to pass legislation that would provide more protections for the accused. Dissident Republicans led by Sens. John McCain (Ariz.), Lindsey Graham (S.C.) and John Warner (Va.) object to the admission of hearsay and coerced testimony, and they insist defendants should see all the evidence against them.
Hearsay, testimony based not on direct knowledge but on secondhand reports or rumor, is generally inadmissible in civilian and military courts (though there are exceptions) because it’s considered unreliable and cannot be rebutted by cross-examination of the original source. The Bush plan would allow hearsay whenever the presiding officer thinks it is probative and reliable. The same standard would apply to evidence obtained through coercion, which is usually seen as suspect because someone under physical duress tends to say what he thinks the interrogator wants to hear, whether or not it’s true.
The combination of these two rules compounds the threat to a fair trial. Suppose a prosecutor tries to present a statement from a prisoner subjected to "tough techniques" — which might include methods like sleep deprivation, uncomfortable temperatures and simulated drowning — who claimed he heard that the defendant underwent weapons training at an Al Qaeda camp.
The aspect of the president’s plan that has aroused the strongest objections from congressional critics and military lawyers, including the judge advocate general of each service, is that it allows a defendant to be convicted based on classified evidence he never sees, compromising a fundamental procedural safeguard that predates the Constitution. "’Trust us, you’re guilty, we’re going to execute you, but we can’t tell you why?’" says Graham. "That’s not going to pass muster; that’s not necessary."
Instead of fuming at critics like Graham, the president should be thankful for their efforts to correct the most glaring deficiencies in his tribunal plan. Justice Anthony Kennedy, who is apt to provide the swing vote in future Supreme Court cases dealing with the tribunals, stated repeatedly in his Hamdan concurrence that whatever rules Congress approves have to conform with the Constitution, suggesting the Court may be receptive to due process challenges.
Beyond the constitutional issues, there’s no point to proceedings that will be perceived as show trials with foregone conclusions instead of honest efforts to arrive at the truth. Members of Congress might have told the president that back in 2001, if he’d been willing to listen.