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Due Process End-Run

Editorial
Boston Globe
August 1, 2006

THE BUSH administration is trying to get Congress to endorse trials for prisoners in the war on terrorism that would allow coerced testimony, hearsay evidence, and the exclusion of the defendants and their civilian lawyers from parts of the proceedings in which classified evidence is presented. The proposal makes a mockery of the nation's proud history of due process under law, and Congress should reject it outright.

The proposal is the administration's response to the Supreme Court's decision in June rejecting the military commissions cobbled together by the administration for some of the 450 prisoners still being held at Guantanamo. More than four years after most of them were rounded up in Afghanistan, few have been charged with any crime and none has been tried. Even if the administration persuades Congress to approve its draconian procedures, it still faces the prospect of having the court reject them again.

In his ruling in June, Justice John Paul Stevens said the administration's commissions violated both US court-martial rules and the Geneva Conventions. An article of the conventions stipulates that any trial of prisoners, whether regular soldiers or guerrillas, should include the legal rights "recognized as indispensable by civilized peoples." The administration's proposal falls far short of that standard.

US military officials also should withhold their approval for the administration proposal. The generals and admirals value the Geneva Conventions as protection for US troops who are captured in future conflicts and don't want to see these safeguards weakened now. Some members of Congress, including Republican Senator Lindsey Graham of South Carolina, a former military lawyer, want the administration to use the court-martial rules of the Uniform Code of Military Justice as the basis of any trials of Guantanamo prisoners. If there are special reasons related to these cases for any adjustments in the code's rules, the administration should make its argument for them to Congress and the military.

For decades, the United States skirmished with and eventually prevailed against a Cold War enemy, the Soviet Union, that was far more dangerous than Islamic terrorism. Despite the hysteria of McCarthyism, the nation emerged from that long conflict with its legal system intact. In courts-martial, procedures were developed that specifically allow for the protection of classified evidence without denying defendants a fair trial. It is dispiriting to see the administration so willing to make the nation's due-process traditions an early victim of friendly fire in the conflict with terrorism. Congress must not join the assault.

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