Saturday, October 23, 2004

Keeping the wolves at bay

The New York Times has a lengthy article that I'm just starting to read about the Bush administration's faltering plan to use military tribunals to try suspected terrorists. I haven't heard John Kerry bring this up very often, perhaps because he is afraid of being labeled soft on terror. Here's how the article begins:

In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism.

Determined to deal aggressively with the terrorists they expected to capture, the officials bypassed the federal courts and their constitutional guarantees, giving the military the authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II.

The plan was considered so sensitive that senior White House officials kept its final details hidden from the president's national security adviser, Condoleezza Rice, and the secretary of state, Colin L. Powell, officials said. It was so urgent, some of those involved said, that they hardly thought of consulting Congress.

White House officials said their use of extraordinary powers would allow the Pentagon to collect crucial intelligence and mete out swift, unmerciful justice. "We think it guarantees that we'll have the kind of treatment of these individuals that we believe they deserve," said Vice President Dick Cheney, who was a driving force behind the policy.

But three years later, not a single terrorist has been prosecuted. Of the roughly 560 men being held at the United States naval base at Guantánamo Bay, Cuba, only 4 have been formally charged. Preliminary hearings for those suspects brought such a barrage of procedural challenges and public criticism that verdicts could still be months away. And since a Supreme Court decision in June that gave the detainees the right to challenge their imprisonment in federal court, the Pentagon has stepped up efforts to send home hundreds of men whom it once branded as dangerous terrorists.

"We've cleared whole forests of paper developing procedures for these tribunals, and no one has been tried yet," said Richard L. Shiffrin, who worked on the issue as the Pentagon's deputy general counsel for intelligence matters. "They just ended up in this Kafkaesque sort of purgatory."

UPDATE: The article paints a vivid picture of the behind-the-scenes meetings and deliberations that went into creating the system for trying terrorists. In the administration's defense, it is a reminder of how frightening and unprecendent the Sept. 11 attacks were, and the problems posed by more conventional solutions, such as relying on the civilian criminal justice system. Nonetheless, there are a couple of points to keep in mind, not only on this issue but on the broader issue of how many civil rights we should be expected to sacrifice for the war on terror. Namely, how will we know when the war is over? As the president himself has said, there will likely be no peace treaty signed, no surrender ceremony on the deck of a battleship. Also, this is interesting:

But all of the critics were not outside the administration.

Many of the Pentagon's uniformed lawyers were angered by the implication that the military would be used to deliver "rough justice" for the terrorists. The Uniform Code of Military Justice had moved steadily into line with the due-process standards of the federal courts, and senior military lawyers were proud and protective of their system. They generally supported using commissions for terrorists, but argued that the system would not be fair without greater rights for defendants.

"The military lawyers would from time to time remind the civilians that there was a Constitution that we had to pay attention to," said Admiral Guter, who, after retiring as the Navy judge advocate general, signed a "friend of the court" brief on behalf of plaintiffs in the Guantánamo Supreme Court case.

It should be no surprise that the military, charged with defending our freedoms, may value them more than the rest of us.


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