Wanted: A System of Justice

Wednesday, June 21, 2006

SEPT. 11 MASTERMINDS Khalid Sheik Mohammed and Ramzi Binalshibh, along with numerous other infamous al-Qaeda figures, have been in American custody for years. So has Mohamed Qatani, who was allegedly to be the 20th hijacker. None has faced trial for his crimes. Nor have any of the hundreds of lesser foreign detainees captured in the war on terrorism. Nearly five years after the Sept. 11 attacks, the Bush administration's plans for bringing the enemy to justice are a shambles. This failure has been one of the most easily avoidable blunders in the war on terrorism.

In the next few days the Supreme Court is expected to pass judgment on the administration's effort to establish military commissions -- a long-dormant trial system the executive branch seeks to revive in order to try al-Qaeda terrorists. But even if the court lets the commissions stand, the administration should go back to the drawing board, to create a fairer system for trying alleged war criminals in which this country can have confidence.

Not every detainee can be put on trial. But those who plan, assist or participate in acts of terrorism can face charges under the laws of war. Where trials are possible, criminal convictions provide a more legitimate basis for long-term incarceration than any kind of detention without charge. Trials also provide public accountability for unspeakable crimes and plots -- that is, they provide a measure of justice.

The administration is correct that U.S. federal courts often will not be the right venue for such trials. Evidence collected in the rough and tumble of a shooting war doesn't always meet the rigorous standards that courts here rightly demand. The government may have good reason to withhold witnesses or classified information. Given that foreigners abroad do not have full constitutional rights, the administration's impulse to create an alternative trial mechanism with some flexibility was reasonable. Had it gone to Congress and sought authorization to use a variation of military courts-martial, with clear rules and a codification of the offenses such tribunals were to judge, it might today have a vibrant system of justice at Guantanamo Bay.

Instead, the administration sought to rewrite the rules from scratch and revive a system of trial not seen since the World War II era. The reason for this fateful error was largely ideological: The White House wished not merely to conduct trials but also to emphasize the president's power to do it on his own. Consequently, the executive branch alone has defined the offenses to be tried by commission and it alone has written the trial rules, which have shifted repeatedly. The legality of the system has been in doubt from its inception. And while the rules have improved over time, they still permit unfairness. The result: a system that inspires little confidence here or abroad and that in five years has yet to produce one trial.

Even if the Supreme Court erases the cloud of legal uncertainty in the coming days, it makes no sense to proceed in this fashion. Instead, Congress should write a law clarifying that courts-martial will try these cases and modifying the model if necessary. The military uses this system to try its own personnel every day. More than the commissions, courts-martial would guarantee due process to detainees: the right to challenge evidence, a full appeal to the federal courts. Trials by court-martial are accepted around the world as fair.

At the same time, the system could be modified to take into account the government's needs in a continuing war. These might give prosecutors more leeway to use hearsay evidence in some cases, or to protect intelligence secrets. There may be circumstances when the accused will need to be excluded from proceedings and have his interests represented by counsel cleared to handle sensitive information. But such departures from traditional trial rules should be narrowly drawn. They should be the product of a deliberative legislative process, not a fiat from the executive branch; written into law, not existing as rules the Pentagon can change whenever convenient.

The conflict with Islamic extremists will not be over soon. The nation needs now, and will continue to need, a means to try some of the most fateful criminals of all time according to fair rules that bear the stamp of democratic approval: legislative enactment. Only the administration's rigidly ideological approach to this problem prevents its timely resolution.

This is the fourth in a series of editorials about the Bush administration's detention and treatment of foreign prisoners. The full series will be available athttp://www.washingtonpost.com/opinions.

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