Terror Suspects And The Law

Richard Reid Tariq Raja sneakers flight diverted courtroom sketch U.S. Magistrate Judge Judith Dein
AP Legal Consultant Andrew Cohen says changes to the drafted military tribunals plan don't completely even out the playing field.

Smart folks, those Bush administration officials. By revising the working draft of their plan for military tribunals to at least give lip service to Constitutional requirements, they've gone a long way toward disarming their harshest critics while still maintaining control of the process. The new proposed procedures -- still subject to change, remember -- are less likely to meet resistance in Congress and more likely to gain approval by the Supreme Court, if a tribunal case ever makes it that far.

The administration's proposed, preliminary, pre-emptive strike not only is likely to allow it to continue to control the tribunal process but also in large measure it will allow it to continue to control the result. And that's the genius of the new draft rules, even though, much to President Bush's chagrin, they apparently were leaked to the media before the secretary of defense had a chance to review them.

Even though it now may take a unanimous verdict to sentence a tribunal defendant to death; even though that defendant's guilt now must be proven beyond a reasonable doubt; and even though another round of ersatz appeals have been added to the mix, the tribunal process still is weighed heavily in favor of prosecutors. The administration may have taken some steps to make the process fairer to tribunal defendants but it hasn't completely evened out the playing field.

For example, the rules of evidence for tribunals, as they now stand, still heavily favor prosecutors. Remember the famous Osama bin Laden "smoking gun" videotape? It almost certainly would make it into evidence before a military tribunal since the rules permit any evidence which a "reasonable person" would find "useful." That is a much lower standard of proof than the one typically employed in federal courts. Under the general evidentiary standard, the bin Laden video would have a hard time getting into evidence. And you don't need to be a lawyer to understand the psychic or emotional significance of that videotaped played before any judge or jury.

Also, the appellate process for tribunal decisions, even with its proposed new round of deliberation, favors military prosecutors since the process still doesn't explicitly call for any independent federal judges to evaluate any tribunal verdict. The administration may have satisfied some by creating a three-member panel to review any verdict or sentence initially imposed by a five-member military panel, the three "appellate" members still will be military officials. And why in the world would one set of military officials ignore the fact-finding panel? It may look good, in other words, but it probably won't make much difference.

More importantly, perhaps, is the reality that any evidence, employing any set of procedures, will be presented to a grou of "jurors" who are not a fair, cross-section of society but who are instead culled exclusively from the ranks of our military. Although the rules now would require tribunal defendants to get the benefit of all reasonable doubt, surely the "five uniformed officers" who will make up a tribunal jury will be more likely to give prosecutors (their colleagues, after all) the benefit of any doubts instead.

Meanwhile, no one ought to be surprised that a federal magistrate has denied bail to shoe-bomb suspect Richard C. Reid. Since risk of flight is a significant component in such a determination, and since he has no known address anywhere and no family certainly in Massachusetts, Reid stood almost no chance of being let out pending his upcoming trial. It's also no surprise that the FBI laid it on thick during the detention hearing in order to ensure that Reid wouldn't be going anywhere anytime soon. Federal law enforcement officials are notorious for accentuating the negative when it comes to these sorts of preliminary hearings.

Finally, also in the don't-be-surprised department, is next Wednesday's scheduled arraignment in federal court in Alexandria, Va. for Zacarias Moussaoui, the alleged "20th hijacker." Look for Moussaoui's lawyers to enter a "not-guilty" plea on behalf of their client and look for the whole thing to be over in a matter of a few minutes. It's very unlikely that the judge will hear any substantive motions at that time.

By Andrew Cohen
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