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The regulations proposed to implement George W. Bush's order establishing military commissions for the trial of "international terrorists" are mere window dressing and will not cure the fatal defects of the order. They provide the accused with so little protection as to raise a suspicion that they are made primarily to disarm the critics.

The fundamental problem is that the proposed system, including all its "judicial" elements, still lies entirely within the military chain of command and subordinate to the President, who is the ultimate authority over every aspect of the proceedings. But independent impartial judges who are not beholden to any side are the indispensable bedrock of any credible system of justice. They must be the ones to make the basic decisions or at least to review them. Without such a tribunal to monitor them, the various "protections" provided by the proposed regulations--the presumption of innocence, guilt beyond a reasonable doubt, even outside counsel--mean little or nothing.

This is not a novel insight. Congress and the military have recognized how indispensable an independent judiciary is to a meaningful system of justice: Under the Uniform Code of Military Justice, verdicts are not final until they have been reviewed by a civilian Court of Appeals for the Armed Forces. The provision of an appeal mechanism, especially in cases as politically and internationally sensitive as these, thus adds nothing to the fairness of the process--it merely insures that the final decision will be made by higher-ranking military officers who are still subject to military and presidential control.

White House counsel Alberto Gonzales, aware of these shortcomings, has sought to reassure doubters by noting that habeas corpus review will be available. But the order itself, which the regulations are only supposed to implement, expressly prohibits recourse to any court, as he well knows. For this reason, he was careful to describe the review as just a check on the jurisdiction of the tribunal, that is, whether the commission has the legal authority to try the particular accused. But review of a tribunal's jurisdiction does not touch on any substantive or procedural aspect of a proceeding, such as apprehension, detention, pretrial procedure, trial, evidentiary rulings, verdict or the sentence.

Moreover, as noted, the order specifically mandates that the ultimate authority is the President. Since the initial decision to apprehend someone is also the President's, and since everyone in the decision-making process, including the prosecutor, is subordinate to the President as the Commander in Chief, the police, prosecutor, some defense counsel, judge and jury are all rolled into one entity subject to one man--the antithesis of a just system. And given the rigidity of the military hierarchy and the natural desire of military personnel for promotion, who would challenge a judgment of their Commander in Chief that there is reason to believe someone is guilty of international terrorism and must be taken into custody--even if, as in so many instances, the action is as much for political reasons as for national security?

Compounding the difficulty is the absence of any real limit on what evidence may be admitted. The tribunal still may admit single, double and triple hearsay, affidavits, opinion and other dubious evidence. None of this can be effectively tested by cross-examination, especially since some of this evidence can be kept secret from the accused and his lawyers.

The decision to open up the proceedings to public view looks good, but it is only conditional--they may be closed if evidence that the tribunal considers worthy of secrecy is to be admitted. We have learned to our dismay how quick government officials are to classify information, even when it is already in the public domain. This Administration is particularly secretive, as shown by Bush's order holding back presidential papers from public release, as well as the refusal to reveal any information about the 1,000-plus detainees held since September 11. Moreover, the usual reason for secrecy is that disclosure will reveal methods and sources. But reliance on sources often involves very subjective judgments based on inaccurate or untrustworthy information. Yet it is just this kind of evidence that is most likely to be kept secret.

These are not tribunals worthy of a nation governed by law. And we don't need them. In the past eight years we have convicted twenty-six terrorists for the 1993 World Trade Center bombing and other cases in ordinary criminal trials and without revealing any secrets. The Administration realizes this, for it has decided to try the alleged "twentieth hijacker," Zacarias Moussaoui, in the criminal justice system.

The problem with these proposals is not that some people will never be satisfied--it is that the demands of justice have not been satisfied.

Once roundly condemned for his use of using military courts for civilian crimes, Egyptian President Hosni Mubarak is now in good company now that the US and the UK have adopted similar measures.

Enron's Ken Lay is no stranger to not only the Bush family, but the Bush administration. Finally, reporters are starting to take notice and ask questions.

The New Republic strains credibility with its 'Idiocy Watch'—it might want to keep itself in its sights.

The war on terror is threatening to overshadow a far more deadly threat—the AIDS epidemic.

With developments in the Mumia Abu-Jamal case and Pacifica's re-emergence, the left has a couple of victories under its belt; the Enron scandal develops further.

Organic farming critic Dennis Avery is supported by generous contributions from several chemical companies, all of whom profit from the sale of products prohibited in organic production.

John Stossel has high Q-ratings, so he doesn't have to worry about the rules.

Media consolidation is creeping in slowly while the public’s attention is elsewhere—is it too late to fight back?

Blogs

The fact that Susan Rice, Samantha Power and Hillary Clinton skillfully argued for military intervention in Libya and won their point is not very interesting. So why is Robert Dreyfuss so shocked by it?

March 22, 2011

Cleveland Browns linebacker Scott Fujita has been through the physical and mental wringer in twenty years of playing the game of football. His partner, Jaclyn Fujita, wants the next generation of players to be saved from the fears she carries every time he steps on the field.

March 21, 2011

A new initiative from Half in Ten and the Coalition on Human Needs allows those most affected by federal budget cuts to tell their stories.

March 21, 2011

The Obama administration has continued to operate Bush’s legally dubious detention centers for terrorism prisoners, but the opaque practices at these secret prisons deserve to be rigorously reconsidered.

March 18, 2011

Is there data proving that liberals get interrupted more on political television? And who's fault is that?

March 18, 2011

Alter-reviews of Stoppard and music old and new, Reed on the Washington Post's decision to bracket their writers into right-leaning and left-leaning and reader mail.

March 17, 2011

The Foundation for Individual Rights in Education inappropriately editorializes a racist video posted by a UCLA student.

March 17, 2011

Stacey Abrams fights the antiabortion wackos so you don’t have to.

March 16, 2011

Adrian Peterson, the Minnesota Vikings All-Pro running back, likened his labor to slavery. He’s been scorched for his comments, but maybe there is more here than meets the eye. Maybe we would do well to listen.

March 16, 2011

Is Earth becoming Easter Island?

March 15, 2011