New York Times Editorial
December 29, 2001

How to Try a Terrorist

The Bush administration is about to release procedural rules for its proposed military tribunals that are much fairer than originally feared. Secretary of Defense Donald Rumsfeld is considering dropping some of the disturbing provisions contemplated in the White House's November order, such as the ability of the tribunals to operate largely in secret, and to have a two-thirds majority of presiding officers sentence defendants to death. The Pentagon deserves credit for responding to some of the serious concerns of civil libertarians, legal scholars and the military's own jurists. But a better response would be to try suspected terrorists under the normal American criminal justice system.

Top Al Qaeda leaders, wherever captured, and others directly implicated in the terrorist attacks of Sept. 11, should stand trial in a federal courtroom, prosecuted by the people of the United States for the most serious crimes ever committed on American soil. No other type of judicial proceeding could offer Americans and the rest of the world as satisfying a verdict, or a more resounding vindication of American justice and freedoms.

The administration has rightly decided to try Zacarias Moussaoui, whom it believes to be a member of Al Qaeda who trained to participate in the Sept. 11 attack, in federal court. Hundreds of Al Qaeda and Taliban fighters are now in custody in Afghanistan, and some of them may soon be detained at the Guantánamo naval base in Cuba. The administration and its coalition partners are deciding who should face criminal charges, and where. Possible venues include America's court system, new U.N.-backed Afghan courts, the home judicial systems of repatriated Arab Qaeda fighters, an ad hoc international tribunal and, of course, the proposed military tribunals.

Under the rules being reviewed by Mr. Rumsfeld, the tribunals would mostly operate in public. No death sentence could be imposed without the unanimous vote of the presiding officers. Guilt would have to be shown beyond a reasonable doubt. Some appeals process would be provided. Defendants would be presumed innocent and could not be forced to testify. They could hire lawyers in addition to the one provided them.

Such rules would make the military tribunals more credible, though still less protective than civilian courts and traditional military courts-martial. Hearsay and other normally inadmissible evidence would be allowed. No means of appeal to a truly independent judicial body is being contemplated. Serious questions remain, absent Congressional involvement, about their constitutionality.

To try Al Qaeda leaders in a forum of such dubious legitimacy would taint any resulting verdict in the eyes of much of the world. Moreover, relying on military tribunals to try the masterminds of the worst crime in American history would only reinforce the warped notion of Osama bin Laden's followers that they are engaged in a legitimate war. If Al Qaeda leaders are tried only for violating the laws of warfare, that presupposes that there is a valid underlying conflict.

Our federal courts offer the preferable venue to obtain justice, and have a sterling record in handling terrorism cases. The government must treat Al Qaeda leaders as criminals, not soldiers.

Copyright © 2001, New York Times Company. All rights reserved.

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