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Jewish World Review April 15, 2002 /4 Iyar, 5762

Nat Hentoff

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Rumsfeld's military tribunals | The president's order setting up military tribunals was sharply criticized by some constitutional scholars, former court-martial officers, and journalists across the political spectrum.

In response, Secretary of Defense Donald Rumsfeld -- who has a bright future in television once he leaves office -- was assigned the responsibility of damage control, and released revised regulations.

Under Rumsfeld's direction, some of the egregious excesses of the president's original version have been modified. Keep in mind that George W. Bush and the rest of his administration have continually said that everything they do in the war against terrorism will be within "the bounds of the Constitution."

The tribunals are now called military commissions, and the trials will be open to all, including to the press. Evidence will have to show guilt beyond a reasonable doubt. The defendant will get military lawyers at no charge. If he can afford it, he can hire a civilian lawyer, who will have to be cleared for security purposes.

However, serious violations of the essence of our system of justice -- due process (fairness) -- remain. A glaring example is the standard by which evidence will be admitted at the trials. Any evidence that has "probative value to a reasonable person" will be allowed.

As Barbara Bradley, National Public Radio's knowledgeable reporter on legal matters, points out: "That means hearsay or second-hand evidence" will be allowed -- contrary to the rules of our civilian federal courts. Hearsay encompasses gossip, rumors, assertions and accusations that cannot be verified. And, it is possible that witnesses can use pseudonyms.

The authenticity of evidence is crucial to verdicts of guilt or innocence. JWR's Jonathan Turley, a constitutional law professor at George Washington University, has had extensive experience as a lawyer in national security cases in federal courts, including civilian courts. In The Los Angeles Times, Turley emphasizes the distance between parts of the Rumsfeld tribunals and the American rule of law:

"It is clear that the new rules were written by prosecutors to govern their own prosecutions. The biggest changes are in areas prosecutors find inconvenient -- such as proving that evidence is authentic before using it. Accordingly, tribunal prosecutors will not have to authenticate evidence -- or even show a chain of custody."

Through how many hands did the evidence pass through before arriving at the military tribunal? It is conceivable that the evidence of "probative value to a reasonable person" could have come from a prisoner in another country where torture is a "reasonable" way to extract information.

The new rules do require -- unlike the original presidential order -- that a sentence of capital punishment will have to be imposed by a unanimous military court. But, whatever the sentence, the convicted defendant still does not have independent judicial review in the Rumsfeld tribunals.

In not only our civilian courts, but also in court-martials, verdicts can be appealed to the United States Court of Appeals, and ultimately to the Supreme Court. But, the military tribunals' appeals procedure involves only a military review panel appointed by Rumsfeld, which can include civilians appointed temporarily as military officers.

From the military review panel, the verdict's final chance for an appeal is the president, who, in the first place, decides who will have been put before the tribunal. He can designate the secretary of defense as the final stop in the appeal process, but the Supreme Court is out of the loop.

As Turley emphasizes, the review panel will not have to apply federal law in terms of the rules of evidence. With no independent judicial review, "this creates the mere pretense of legal process ... the framers expressly denied the president (the power) to create and mete out his own form of justice.

"It takes more than a few rule changes to remove the 'kangaroo' from the court," Turley continues. "One can shampoo and pedicure a kangaroo. But it does little to change the appearance of a president's own menagerie of justice."

Charles Gittins, a judge advocate and lieutenant colonel in the Marine Corps reserve, has said in The New York Times: "Congress should exercise its oversight to prohibit employment of military commissions within U.S. borders and require that military trials conducted outside the United States comply with the due process, including independent judicial review, provided in court-martials."

That's the American way.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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