Thursday, March 21, 2002

Military Tribunals Modified
Here's what's less to the good:

No jury. There is none in a court-martial either, but at least
the Uniform Code of Military Justice allows the accused a say
in the composition of the panel of judges — a buck private,
for example, can demand that an enlisted man be included,
which introduces a peer in judgment. In doing justice,
nothing beats a jury of one's peers.

Hearsay is accepted as evidence. The rules of evidence are
loosened to that with "probative value to a reasonable
person." Because "probative" means "tending to prove," that
means once-removed testimony and documents found in
caves that have been through several hands would be
admissible. Not our usual standard, but understandable.

Here is what is no good at all:

No civilian review. An appeal procedure is only to a panel of
judges appointed to or by the military, which means no truly
independent review. The non-citizen tried by the U.S. outside
the U.S. would have no appeal to our federal courts. Indefinite
detention. Not a word is said in the Pentagon rules
about that contentious issue at all. It is not in the American
system of justice to hold a suspect in jail for long without
trial.

No participation by Congress in the making of what is
undoubtedly law. Bush believes it would dilute the
presidential war power to submit this alternative judicial
system to the usual lawmakers in the House and Senate. But
ours is a government of laws, not of executive fiats.…
http://www.nytimes.com/2002/03/21/opinion/21SAFI.html

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