The Legal War: And Justice For...

The White House wants to try terrorists in secret. Is this really in America's best interest?

By Josh Tyrangiel Monday, Nov. 26, 2001

    • In his Sept. 20 speech before a joint session of Congress, President Bush described America's new enemy with uncharacteristically careful locution. Not wanting to grant al-Qaeda members the holy-warrior status they so fervently asserted for themselves, Bush painted them as thugs--criminals who had hijacked Islam as well as American planes. "Al-Qaeda is to terror," said the President, "what the Mafia is to crime." When Bush dropped the language of precision to indulge in a rhetorical flourish--"Whether we bring our enemies to justice or bring justice to our enemies, justice will be done"--it was understood to be merely that: a flourish, not policy.

    Suddenly, surprisingly, the hour of justice is approaching. Since Sept. 20, the sharpest legal minds in the White House and Department of Justice have been working to turn the President's poetic abstraction into specific judicial doctrine. What they have cooked up for al-Qaeda and other terrorists is undeniably shrewd and, to civil libertarians, profoundly chilling. Last week Bush signed the results of the legal labor--a military order allowing foreign nationals suspected of terrorism to be judged, at the discretion of the President, by special military tribunals. The proceedings, whose exact rules will be set on a case-by-case basis by Defense Secretary Donald Rumsfeld, can be secret. They may take place in the U.S. or abroad. Hearsay can be used as evidence. The defendant has neither the absolute right to challenge the evidence against him nor the right to hear it. He may not have access to the lawyer of his choice. Guilt need not be proved beyond a reasonable doubt. The verdict need not be unanimous. Executions are allowed. There may not be provision for appeal. Legally, at least, the terrorists have their wish. They are soldiers after all.

    Do the ends--speedy, secure trials that protect classified intelligence--really justify the authoritarian means? Bush Administration lawyers answered yes, without a lot of debate. American terror trials are slow and potentially dangerous for juries and judges, they argued. They complained that despite the recent convictions of Sheik Omar Abdel Rahman and Ramzi Ahmed Yousef (who bombed the World Trade Center in 1993) and Timothy McVeigh, terror cases are hard to win. Trials can be closed to present classified information, but intelligence officers, not their secret sources, take the stand, and their testimony can be challenged as hearsay. In criminal court, say Administration officials, the U.S. would be forced to choose between exposing extremely sensitive sources and tactics used to get the evidence necessary for a conviction, and dropping the case. "For the benefit of the public," said an official, "those are situations we didn't want to be confronted with."

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