Sticking With Tribunals

Sunday, May 17, 2009

IN ANNOUNCING Friday that he would continue to use military commissions to try some terrorism detainees, President Obama outlined several changes that the Defense Department would make immediately to strengthen the fairness of these tribunals. These changes are welcome, but the president must work with Congress to craft even more robust protections for defendants so that these once-discredited tribunals gain legitimacy in the eyes of the country and the world.

Going forward, Mr. Obama said, detainee statements obtained through cruel, inhuman and degrading treatment will no longer be admissible as evidence, and the government will now have to shoulder the burden of proving that hearsay evidence is reliable. Mr. Obama also ordered that detainees have more say in choosing their attorneys and that they not be penalized for refusing to testify at trial.

Other changes must be made. During the Bush administration, lawyers for detainees were permitted to view some classified information, but they were forbidden from discussing that evidence with their clients. This prohibition left the defense team in most circumstances unable to rebut the information or impugn the motives of the source. Mr. Obama and Congress should discuss ways in which defense lawyers may be given access to more information and a greater ability to confer with clients without compromising national security. They must also lay out a clear and predictable legal path for appealing adverse rulings or a conviction.

The president should rely on the federal courts whenever possible. But he is prudent to leave open legal and legitimate venues for those cases that cannot be brought in U.S. courts. Reestablishing military commissions with extra safeguards for detainees allows the president to bring to justice some suspects whose cases would otherwise be unsuitable for civilian trials. The administration is smartly also discussing the possibility of calling for the creation of a national security court that would fill in what should be a narrow gap for those rare cases that cannot be processed even through military commissions. The president and Congress should work quickly to construct such a court to provide judicial oversight of cases in which there is sufficient, reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court.

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