Roadside
justice,
Bush style
True,
American justice is unwieldy and less expedient than closed door
tribunals. It has been for over two centuries. It seems better to struggle
with it, warts and all, than to destroy with our own hands all we are
trying to defend.
By ADAM
TANOUS
Express Arts Editor
When
President Bush made his infamous comment about his wanting Osama bin Laden
"dead or alive" it seemed easily attributable to the flush of
the moment. The sentiment was perfectly understandable, if inappropriate,
coming from the president of the United States. It drew consternation from
more than a few allies overseas.
So, it was
bad form from a new president but likely a statement without significant
long-term consequences.
Now we have
from Bush an executive order superficially as crude as his Western sheriff
swagger but with potentially profound repercussions.
The
president has decided he has the authority—based on rather flimsy
precedent—to hold military tribunals for suspected terrorists.
The rules
of these tribunals are a little different from what we are used to. For
one, the president decides who goes before this "court." The
prosecutors and presiding judges would report to the president as the
commander-in-chief. The proceedings would be held in secret. Defendants
would not be able to choose their own lawyers. A simple two-thirds
majority of the presiding officers would be required to convict, even
impose death sentences. There would be no appeals to any court, the
Supreme Court or otherwise.
We are not
just talking about a few scruffy terrorists being affected by this order.
It applies to all non-citizens. That amounts to about 20 million people.
What is as
equally disturbing as Bush’s order is there has been little public
outcry over his fiat. A poll conducted by the Kaiser Family Foundation,
NPR and the Kennedy School found two-thirds of Americans to support this
new policy.
There is,
certainly, a time to get behind a president, perhaps suspend some
criticism in the interest of the concerted effort to remove the terrorist
threat. But when do we draw the line?
When a
president issues an order that so obviously runs counter to the spirit, if
not the letter, of our Constitution seems a good time to speak up. What’s
more, had this been done through Congress, it might hold more credibility.
But Bush consulted neither the House nor the Senate nor the people of the
United States. This instance points up why the theory of checks and
balances—the backbone of our Constitutional from of government—is a
profoundly powerful concept. It provides calibration, a frame of reference
for those in government.
I do
believe President Bush is ultimately trying to do the right thing. I just
think he has wandered way off course. To use a local analogy, it’s as if
he has found himself in a white-out unable to distinguish earth and sky.
The other two branches of government could provide the landmarks in such a
murky world, but the president seems to have forgotten this.
What
exactly is wrong with secret, military tribunals without appeals?
I suppose
the answer would be nothing, provided we were 100 percent certain of
getting and executing the right guys. I don’t think we can assume that
to be the case.
The other
basic problem with this windowless star chamber devised by Bush and his
advisors is that the door into it is a one-way door. When proceedings are
secret, so secret that civilians can’t be trusted with them, once
someone goes through that one-way door, how do we know the powers that be
are dispensing justice rather than eliminating people they consider bad
elements? In the climate of these times, I imagine that even an average
lawyer could convince two-thirds of a group of people of just about
anything. With these tribunals, there is no accountability and no margin
for error.
Consider
all of the appeals and due process of civilian capital cases—years and
years of it. And still, cases come up every year in which DNA analysis
proves beyond a doubt that someone was wrongly convicted. These are open,
deliberate trials. Memories play tricks on us, evidence is tainted, people
lie, prosecutors want to stack up convictions, a whole world of anomalies
plague the justice system.
Military
tribunals—fashioned as these are—eviscerate the adversarial system. In
all matters judicial, it is rare that one side or the other has an
exclusive hold on the truth. Imagine the "truth" of a criminal
proceeding to be held within a giant block of granite in the center of the
courtroom. In the adversarial system, the defense and the prosecution
wield their hammers and chisels with the hope of unveiling the truth
within. After all of the flakes and dust and chunks are cleared away, the
truth usually emerges, albeit an imperfect sculpture. But truth
nonetheless. And truth that neither side could have chiseled out without
the efforts of the other side.
Perhaps
President Bush is worried that a public trial would reveal too many
national secrets. Yet, over the years, we have always been able to deal
with public espionage trials. There are procedures for handling sensitive
evidence. Aldrich Ames was convicted. The terrorists who bombed the East
African embassies were convicted.
Perhaps the
president is worried about the prospect of bin Laden surrendering and
making a living martyr out of himself, or making a mockery of our justice
system. It would be the tactically smart move of a man who will eventually
get bombed out of existence anyway. But something tells me bin Laden will
never leave that battlefield alive, whether he’s holding a white flag or
not.
What we
need to keep asking ourselves is this: By going to war, by spending
billions, killing others, risking our own, what exactly are we defending?
Is all this
about pride? Getting even? Avenging several thousand lives? Maintaining
our stature in the world? Hardly. We go to war to protect freedom, a
system of justice, our Constitution, a principle as simple as "all
men are created equal," citizen or not.
True,
American justice is unwieldy and less expedient than closed door
tribunals. It has been for over two centuries. It seems better to struggle
with it, warts and all, than to destroy with our own hands all we are
trying to defend.