Whether it's the requirement of a unanimous verdict for the death penalty or the presumption of innocence; whether it's more public access to the proceedings or the reasonable-doubt standard, the tribunal rules now track much more closely the rules in play for regular military courts-martial. And even where the Administration diverted from the rules with which we all are comfortable, concessions have been made to at least try to assuage fears that any military tribunal proceeding will be a kangaroo court. There won't be a traditional appellate review, for example, but civilian judges may be called upon to serve on "review panels" which will have essentially the same role our current appellate courts do.
Hearsay rules will be broader than those in use in federal courts, which ought to help prosecutors, but the "judges" on the military panels likely will be more experienced than your average juror and thus better able to more effectively evaluate the accuracy and relevance of such testimony.
And prosecutors won't have to prove a "chain-of-custody" when trying to introduce evidence taken abroad, but it wouldn't be very practical anyway to force soldiers to act like crime-scene investigators when sifting through battlefields in Afghanistan. Even so, defendants before these tribunals will be able to supplement their military lawyers with a private-sector attorney, providing that they can afford one. Likewise, defendants will be able to hear the evidence against them and will be able to present evidence on their own behalf.
The new rules aren't perfect. The deck still is very much stacked against any defendant who happens to be tried before such a commission. But by making the rules much closer to the paradigm, by tweaking them in favor of defendants, the Administration has accomplished two very important things.
First, it has deflated much of the initial legal and political criticism directed toward the rules.
Second, it has made the rules much more palatable to the federal judges who no doubt will have the final say on whether or not they are constitutional.
So you might say the new regulations are both a noble calling and a practical necessity; changed to make the Administration look and seem more fair while at the same time increasing the chances that the judicial branch of government signs off on an undertaking that typically falls squarely under its bailiwick.
Meanwhile, the Justice Department reportedly is leaning toward going for the death penalty in its case against Zacarias Moussaoui, the so-called 20th hijacker.
What is remarkable about this strategy is not that the death penalty is even a sentencing option for a convicted co-conspirator to terror. It is, under several federal laws. And the government even has invoked these particular conspiracy statutes before, most notably in its case against Oklahoma City bombing conspirator Terry Nichols.
So the system's ultimate punishment is available for someone who doesn't actually "pull the trigger" on a terrorist attack. And the law certainly doesn't require a conspirator to be successful in order for him to face charges that could lead to a death penalty.
What is remarkable is that Moussaoui may be on the hook for his life even though he was in jail on Sept. 11 and nowhere near New York City or the Pentagon. In fact, Moussaoui was in jail for several weeks prior to the attacks, which ought to make it hard or even impossible for prosecutors to show that he was intimately involved in attack planning and preparation.
Will a jury sentence Moussaoui to death in these circumstances? Will the enormity of the crimes with which the government seeks to link him overwhelm whatever role he may have had in it? That's impossible to say. The Nichols jury wasn't willing to sentence their terror conspirator to death even though the evidence showed that Nichols was actively involved in the preparation for the April 19, 1995, bombing. Just days before the attack, Nichols loaded the fuel oil onto McVeigh's truck and then picked McVeigh up from Oklahoma City after the latter had dropped off the getaway car.
But Moussaoui's ultimate fate may not matter much to prosecutors. There are plenty of other good reasons for going for broke in the case. Just by invoking the death penalty in the case, for example, the feds will get a "death-qualified" jury — one in which every juror is at least willing to consider condemning someone to death — and those sorts of juries tend to be much more "law-and-order" sympathetic to prosecutors. That alone may make it worthwhile for the Justice Department to seek death against a fellow who was sitting in a jail cell when the planes hit those buildings.
Finally, John Walker Lindh's attorneys have asked the judge in his case to force prosecutors to lay their cards on the table and provide more specific information about the charges against him. They've filed a "bill of particulars" motion that the feds must respond to before a planned April 1 hearing on discovery motions in Lindh's terror-aid case.
"In order to prepare to defend against that charge [conspiracy to murder U.S. nationals] at trial," Lindh's lawyers wrote, "Mr. Lindh needs to know what U.S. nationals the government alleges he conspired to kill, when and how he is alleged to have agreed to kill U.S. nationals, with whom he is alleged to have agreed to kill those U.S. nationals, and what actions he is alleged to have taken to carry out the agreement to kill U.S. nationals."
Lindh's lawyers have it exactly right. Sooner or later, the feds are going to have to fill in the many blanks contained in the indictment against Lindh. If the information is there, prosecutors ought to make it public or at least share it with Lindh's lawyers behind closed doors so they can prepare their defense. And if the information isn't there, the judge in the Lindh case is going to toss the charges anyway.