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Los Angeles Times -- November 15 2001 -- Op-Ed COMMENTARY

Bush's Secret Court: Legal System in a Burka

By JONATHAN TURLEY

Jonathan Turley is a professor of law at George Washington University

There was a time when soldiers in war would be summarily executed after "drumhead" trials. These were modest affairs, often occurring on a battlefield with a commander using an overturned battle drum as a "bench."

Drumhead trials seemed like quaint historical relics until this week when the government announced the creation of a secret military tribunal for terrorists. Despite prior terrorist trials held in federal courts, the Bush administration has decided to create an ad hoc court with its own rules and obvious conveniences. It is a court that appears designed with the ends and not the means of justice in mind.

It is also a decision that may snatch defeat from the jaws of victory in our fight against terrorism. The creation of this secret tribunal appears to have less to do with the prosecution of terrorists than it does the prosecution of the war in Afghanistan. As we all watched the Northern Alliance race across Afghanistan in hot pursuit of crumbling Taliban forces this week, one could imagine the growing apprehension among Justice Department officials.

The leisurely pace of the war had been reassuring for some officials who fretted over the possible capture of Osama bin Laden or his top lieutenants. Many in government had hoped that Bin Laden would be conveniently vaporized during the course of a methodical air campaign. With enough "daisy cutter" bombs and B-52 attacks, it was hoped that the law of averages would balance the books with Al Qaeda.

Now there is a real chance that someone is going to trip over Bin Laden, who may be both alive and interested in a trial. Such a possibility creates a positively nightmarish scenario for the administration: an acquittal or hung jury in the trial of an Al Qaeda leader.

Such a possibility is not as remote as one might think. All national security trials highlight a conflict between what is considered compelling intelligence and what is considered admissible evidence of guilt.

The most probative information gathered by intelligence agencies is often inadmissible in federal court because of the means of its collection or the sources it came from. In this way, a mountain of intelligence can be quickly reduced to a molehill of largely circumstantial evidence.

This may prove to be the case with Bin Laden, who has been called the "Ford Foundation for terrorists." Bin Laden supplied terrorist "grants" instead of routinely ordering or orchestrating specific operations.

Given this modus operandi, it is unlikely that we will be able to produce a mob-genre tape of Bin Laden telling his Al Qaeda thugs to go "do those guys." Instead, we will have evidence that proves as shadowy as the cave-dwelling organization itself.

One problem for the government is the sometimes unpredictable nature of both U.S. justice and jurors. Americans have a nasty habit of insisting on evidence of guilt, even in the most highly charged trials. This was the case before our founding, when a colonial jury refused to convict British soldiers standing trial for the Boston Massacre. Their defense counsel was none other than John Adams, and the verdict is still cited as the measure of American justice.

Such a verdict today would be the measure of disaster for the administration. Imagine Bin Laden taking that John Gotti victory walk after an acquittal as the new "Teflon Terrorist." Not only would such an outcome inflame the public, it immediately would reinforce the popular view in the Islamic world that the United States simply used the attacks to persecute Muslims.

The decision to create a new tribunal is an overt effort to both guarantee conviction and to prevent Al Qaeda leaders from using a trial as a public forum. The problem is that the administration has chosen the course that will destroy our chances to prevail in this "war."

We cannot hope to win this conflict by simply beating some troglodyte regime with space-age technology. These trials were to be the measure of the legitimacy of our cause throughout the world. Particularly when combined with the expanded activity of our secret surveillance, the secret military tribunal creates an alien process, like a legal system in a burka.

We do not defeat the Taliban by embracing its view of swift and arbitrary justice. The problem is not that people like Bin Laden would find this secret tribunal alien but that he would find it all too familiar.

New York Times -- November 15, 2001

Seizing Dictatorial Power

By WILLIAM SAFIRE

WASHINGTON -- Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.

In his infamous emergency order, Bush admits to dismissing "the principles of law and the rules of evidence" that undergird America's system of justice. He seizes the power to circumvent the courts and set up his own drumhead tribunals — panels of officers who will sit in judgment of non-citizens who the president need only claim "reason to believe" are members of terrorist organizations.

Not content with his previous decision to permit police to eavesdrop on a suspect's conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial.

His kangaroo court can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."

On what legal meat does this our Caesar feed? One precedent the White House cites is a military court after Lincoln's assassination. (During the Civil War, Lincoln suspended habeas corpus; does our war on terror require illegal imprisonment next?) Another is a military court's hanging, approved by the Supreme Court, of German saboteurs landed by submarine in World War II.

Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on? Have you forgotten our 5,000 civilian dead? In an emergency like this, aren't extraordinary security measures needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later.

Those are the arguments of the phony-tough. At a time when even liberals are debating the ethics of torture of suspects — weighing the distaste for barbarism against the need to save innocent lives — it's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values.

To meet a terrorist emergency, of course some rules should be stretched and new laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign students, if short-term, is borderline tolerable. Congress's new law permitting warranted roving wiretaps is understandable.

But let's get to the target that this blunderbuss order is intended to hit. Here's the big worry in Washington now: What do we do if Osama bin Laden gives himself up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give the terrorist a global propaganda platform. Worse, it would be likely to result in widespread hostage-taking by his followers to protect him from the punishment he deserves.

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

But what if he broadcasts his intent to surrender, and walks toward us under a white flag? It is not in our tradition to shoot prisoners. Rather, President Bush should now set forth a policy of "universal surrender": all of Al Qaeda or none. Selective surrender of one or a dozen leaders — which would leave cells in Afghanistan and elsewhere free to fight on — is unacceptable. We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.

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