St. Louis Tribune
January 3, 2002

Toward Fairness

The Bush administration's draft rules for military tribunals are fairer than the original plan announced by the president in November. But President George W. Bush should take at least two further steps before he uses these tribunals to try terrorists: get Congress' approval and permit appeals to impartial federal courts.

The draft rules, leaked to the press last month, are a significant improvement over the original order. They would: grant accused terrorists the presumption of innocence; require proof beyond a reasonable doubt; allow the accused to hire their own lawyers; open most of the proceedings to the public and require a unanimous vote to impose the death penalty.

The draft rules also would create an appeals procedure, but the appeal would be entirely within the Pentagon. This means that there would be no outside check to military justice. The United States would never allow an American citizen to be tried in another country by a military tribunal with no possibility of appeal to the civilian courts. It should come as no surprise, then, that other countries would not trust such a tribunal in the United States.

Mr. Bush argues that his powers as commander-in-chief give him the latitude to set up the tribunals without congressional approval, although some constitutional experts disagree. While it is true that the president has vast war powers, his power -- and his base of support -- is greatest when he acts in concert with Congress. He should work with Congress accordingly.

The administration has wisely indicated that it will use the tribunals sparingly. Because tribunals were created for war criminals -- those who violate the rules of war -- run-of-the-mill prisoners of war captured in Afghanistan probably would not be subject to them. Only top al-Qaida leaders involved in the Sept. 11 attack would appear to qualify as war criminals, but there should be clear criteria for deciding which suspects are tried before military courts.

Two workable alternatives for bringing high-level terrorism suspects to justice also exist. The federal courts proved to be effective and fair forums for trying the terrorists accused of the first World Trade Center bombing and the bombing of the African embassies in 1998. The other, superior, alternative would be an international court like the one now trying Slobodan Milosevic. The process established for the Butcher of Belgrade should do nicely if Osama bin Laden is ever found alive.

The U.S. justice system, with its guaranteed protections of the rights of the accused, is the gold standard for the world. At this moment, when all of the world is watching, we must live up to our highest ideals.

Copyright 2002, St. Louis Tribune. All rights reserved.

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