Trials and Error

By Philip Allen Lacovara

Wednesday, November 12, 2003; Page A23

Two years ago this week, President Bush authorized trials by military commission for people accused of membership in al Qaeda or attacks on the United States. Six men have been identified thus far to appear before these commissions.

Shortly before the president issued his executive order, and just weeks after the Sept. 11, 2001, attacks, I raised my voice in strong support of military commissions. As deputy solicitor general in the Nixon administration, I had been in charge of the government's criminal and internal security cases before the Supreme Court. I understood how the Bush administration could invoke the laws of war sanctioned by the Supreme Court to deal with international terrorists -- as distinct from "mere felons" (including mass murderers) and legitimate combatants entitled to protection under the 1949 Geneva Convention as prisoners of war. I urged the administration to do so.

When I proposed using military commissions to try terrorists, I conceived of trials with fair and reliable procedures designed to ascertain guilt -- or, equally important, innocence. I knew there would be critics of this approach but was confident that both legal and policy factors justified such trials.

Now, two years later, I reluctantly conclude that the administration's approach to military commissions confirms many of the critics' worst fears.

The rules governing military commissions depart substantially from standards of fair procedure. Most problematic, they undermine the basic right to effective counsel by imposing significant legal constraints on civilian defense attorneys. The rules negate normal attorney-client confidentiality and authorize the withholding of key evidence from defendants and their civilian counsel. In addition, the military commission rules permit the Defense Department to restrict defense lawyers' ability to speak publicly about a case -- while Pentagon officials face no such constraint.

It appears that George "Staunch Defender of Democracy" W. Bush has no compunction about abrogating the rights of others, especially when it is convenient for him. Consider the cases of Yasser Hamdi and Jose Padilla. These two men are US citizens, yet they have had all rights to due process negated at the whim of the President. They have been declared enemy combatants and stripped of ALL of their constitutionally guaranteed rights. They are being held incommunicado. They have no access to nor, apparently, any right to counsel. They cannot confront their accusers. They cannot see the evidence against them.

Their cases are the first on a slippery slope which endagers all of us, and renders null and void the promise of life, liberty and the pursuit of happiness as set forth in the Constitution. Their case if not challenged and overturned will pave the path to unbridled presidential power and firmly set the foundations for an American police state.

The Bush administration poses a greater threat to peace and freedom in this country than any terrorist threat ever could. Bush et al prey upon the fears of America and turn those fears to their own use, namely the consolidation of their power. It is time to remove this administration from office. It matteres not whether it is by impeachment or election, but the sooner the better.