Bush's Secret Court: Legal System in a Burka

15 November 2001

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.

Jonathan Turley.
Professor of Law at George Washington University.
Published in the Los Angeles Times .(c) 2001 Los Angeles Times.

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