Jewish World Review Nov. 19, 2001/ 4 Kislev 5762

Wesley Pruden

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How to rig the jury for Osama bin Laden -- DRUM-HEAD justice is tempting, efficient and satisfying. The rugheads will get what's coming to them.

That's what some people think now. But if it actually comes to that, nobody will regret drum-head justice more than George W. Bush.

The president has authorized, with an executive order, the establishment of military courts to try terrorists captured overseas. These military "courts" - the quotation marks are necessary because a law professor wouldn't recognize a military tribunal as anything approaching legitimacy - will be empowered only to try foreigners. At least for now. (That's what they say.)

The White House defends the idea as necessary to protect the nation, and it's always difficult to argue with a president when he, or his aides, invokes the mantra of national security, even on the occasions when politics, expedience or even fear is dressed up as national security. The administration is worried that if it takes Osama bin Laden and his top lieutenants alive he might beat the rap in a civilian court. So we rig the jury.

No jury is easier to rig than a military court. Generals are not lawyers, and we can be thankful they are not. But you might as well expect Ruth Bader Ginsburg to lead a charge of the light brigade as to expect a man trained for combat to conduct a judicial proceeding with a decent regard for the basic rights on which our system of justice is built. Anyone who has ever watched a court-martial shudders at the prospect.

The odor of hysteria and fear, of quailing at the prospect of terror, is driving a lot of behavior in America this morning. In such a climate it's tempting to exploit fear, to do bad so that good may come. What could be better than to see Osama bin Laden or one of his fellow barbarians paying his debt at the end of a rope? Why should we take a chance that one of them would walk?

The lawyers in John Ashcroft's Justice Department are not content with merely rigging the jury. The decisions of these courts would not be subject to civilian review, not even by the U.S. Supreme Court. There's nothing about this, or the plans for this, that does not insult centuries of American law and justice, and the ancient canons of Anglo-Saxon common law from which American law and justice proceed.

The precedents cited by the proponents of these courts, such as they are, are not reassuring. Several German saboteurs were tried and hanged by a military tribunal during World War II, and before that a military tribunal tried and hanged the conspirators in the assassination of Abraham Lincoln (and historians have argued since over whether all those hanged were actually guilty). Lincoln himself - the man, not the myth - suspended habeas corpus to nail a querulous Copperhead congressman from Ohio during the Civil War. And if John Ashcroft wants a precedent for hysteria in his office, he might consider Mitchell Palmer, Woodrow Wilson's attorney general who disregarded restraint in his pursuit of Bolsheviks, the al Qaeda bad guys of his day, and is remembered today as anything but an adornment of his office and his era.

The voices in the administration leading George W. Bush into temptation are saying that Osama bin Laden could not be tried without compromising intelligence sources, and without their evidence a conviction would be difficult if not impossible. This would be the unlikeliest of all prospects. The defendants in the first World Trade Center bombing were convicted with unusual impediments to the prosecution, and so would the al Qaeda suspects if brought to the bar.

The irony is that abusing the Constitution to go after the terrorists is not even necessary. Any civilian jury empaneled in New York would surely be as eager as any panel of colonels to slip the needle into the arm of Osama bin Laden. Indeed, a sentence of 3-to-5 years at Attica for involuntary manslaughter should be long enough to get him a shiv between the ribs. Convicts can be good Americans, too.

If this president, or one who will inevitably follow him, wants to make sure that defendants get their just reward he does not have to go through the motions of a trial, rigged or otherwise. He's the commander in chief. All he has to do is order his generals in Afghanistan or anywhere else to shoot whoever he thinks needs shooting. This would not abuse the traditions of the law by dressing up an act of war by pretending it's a triumph of the rule of law.

Cynical? Of course. But not nearly as cynical as to pretend that a military tribunal is justice under the law. Rigging a jury is beneath a president of the United States. Conservatives, who preach mighty sermons about reverence for tradition, principle and values, should scream louder than anyone else.

JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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