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Copyright © 2001 Express Publishing Inc.
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For the week of December 5 - 11, 2001

  Opinion Column

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.

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.


The Idaho Mountain Express is distributed free to residents and guests throughout the Sun Valley, Idaho resort area community. Subscribers to the Idaho Mountain Express will read these stories and others in this week's issue.