Should flawed war-crimes court be scrapped?

McClatchy-Tribune News Service | The following editorial appeared in the Miami Herald on Thursday, April 17:  The boycotts of hearings by terror suspects is the latest challenge to the war-crimes court at Guantanamo Bay, Cuba. So many issues have cropped up, you would think that this court was charting unknown territory. It is not. Look no further than the case of Zacarias Moussaoui. 

    In 2006, Moussaoui was convicted on terrorism charges and sentenced to life in prison. He represented himself, was at times incoherent, and insulted the judge. In the end, though, the fairness of that trial was widely acknowledged, including by Mousaoui himself. This is what happens in a judicial system that has proven legitimacy and time-tested procedures, such as U.S. federal court.

    What happens in the military tribunals at Guantanamo is another thing altogether. Suspected al-Qaida foot solders face life sentences if convicted. Even if found not guilty, they still would be subject to indefinite detention under Bush administration guidelines. It is heads I win, tails you lose.

    The three captives who have refused military defense lawyers have little to lose. The defense lawyers themselves face an ethical dilemma: How do you represent a client who has fired you? If you do represent the them, do you put your license at risk?

Six captives charged in the 9/11 conspiracy have more at stake: They could get the death penalty. Obviously, many questions remain about the fairness of these war-crime tribunals. Contrary to traditional U.S. legal standards, the tribunal allows evidence obtained by coercion, hearsay testimony and secret proceedings. If a captive has been tortured by waterboarding, it is apparently of no consequence to the tribunal.

    Security rules at the prison also make it difficult for defense attorneys to see clients. It still is uncertain if the lawyers have the resources they need to provide a vigorous defense.

    This is the Pentagon’s second try at war-crimes proceedings at Guantanamo. The first was ruled unconstitutional by the Supreme Court. The current untested process keeps running into new problems and delaying justice. It is not working and should be scrapped.

    Ideally, terror cases would be tried in U.S. federal court, which has procedures for handling everything from classified information to allegations of torture. As a civilian court, it has more independence from government authorities. Another option would be to apply the Uniform Code of Military Justice.

    Convicted terrorists must pay for their crimes. But justice requires that defendants at least get a fair hearing. For the United States to do less invites doubt and cynicism. When that happens, terrorists are emboldened and America is threatened.

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