The Lichfield Group

This article appeared in the September 12, 2006 issue of the Washington Times.

President Bush's maneuver to prosecute 14 "high value" al Qaeda detainees for alleged war crimes before Spanish Inquisitionlike military tribunals would stain justice without benefit to the national security. Congress should amend Mr. Bush's proposed legislation to prohibit secret evidence or the admission of coerced statements unless the interrogator reasonably believed the coercion was legal. Justice is too important for electioneering.

Until last week, the al Qaeda 14, including Khalid Sheikh Mohammad, Abu Zubaydah, and Ramzi bin al-Shibh, had been detained in CIA prisons abroad as illegal combatants. The U.S. Supreme Court had sustained the president's indefinite detention authority in Hamdi v. Rumsfeld (2003) but required that the alleged illegal combatants enjoy an opportunity to challenge the correctness of their designations in proceedings that satisfied due process. In response, Civilian Status Review Tribunals (CSRTs) were established at Guantanamo Bay to hear challenges. The Detainee Treatment Act of 2005 entitles detainees to seek judicial review of CSRT decisions in the D.C. Circuit U.S. Court of Appeals.

President Bush's decision to move the al Qaeda 14 from CIA prisons to Guantanamo Bay did not require their prosecution. The 14 can be detained indefinitely even if never charged with war crimes, just as captured German and Japanese soldiers during World War II were detained for the duration though innocent of criminality.

But simply transferring the al Qaeda 14 to meld into the Guantanamo Bay detainee population would do nothing to rescue President Bush's plummeting political popularity and the probable loss of a Republican majority in the House of Representatives next November. Something more fear-inducing was needed.

Mr. Bush thus decided on war crimes prosecutions of the 14 hoping to convince voters he and his fellow Republicans are tougher on terrorists than Democrats. Seeking to reinforce that optic, Mr. Bush also demanded that Congress create military tribunals denuded of a requirement known to every civilized system of justice: that the accused be informed of the prosecution's evidence and be given an opportunity to rebut. Mr. Bush aims to tar opponents as soft on al Qaeda.

Mr. Bush is not the first president to have contaminated justice with partisan politics. Amidst racist hysteria after Pearl Harbor, President Franklin D. Roosevelt ordered the internment of 120,000 loyal Japanese-Americans or permanent resident aliens. By 1944, the Departments of War, Interior, Justice and State uniformly advised Roosevelt that the internments could be ended without impairing the war effort. But the president worried over the political ramifications of returning tens of thousands of Japanese-Americans to bigoted voting communities in California and elsewhere prior to November's elections. He thus prolonged the internments to boost his and the Democrat Party's political fortunes.

Trials of the al Qaeda 14 for war crimes can be readily distinguished from the internments of loyal Japanese-Americans. The accusations of criminality are substantial. Political considerations often influence the prosecution of war crimes. Gen. Douglas Mac Arthur, for instance, desisted from prosecuting Japanese Emperor Hirohito before the Tokyo Tribunal to facilitate America's postwar occupation. But politics and partisan politics in administering justice are quite different things. Justice should be both blind to party interests and carry the appearance of justice. Mr. Bush's prosecution of the al Qaeda 14 to further a Republican political campaign violates both canons.

His insistence on military tribunals with secret evidence carries the same odor. The president hopes to portray opponents as al Qaeda sympathizers. If he genuinely desired speedy legislation and reliable verdicts, he would never have proposed such a troublesome statute. In addressing Mr. Bush's proposal before Congress, Brig. Gen. James C. Walker, the chief uniformed lawyer for the Marine Corps, asserted the United States "should not be the first" civilized country to deny a defendant access to the prosecution's case. Republican Sens. John Warner of Virginia, Lindsey Graham of South Carolina and John McCain of Arizona have similarly voiced qualms about secret evidence and a precedent that might be imitated in the trials of U.S. soldiers accused of war crimes in foreign jurisdictions.

Suppose Congress forbids secret evidence in war crimes prosecutions. Suppose a legitimate desire to protect classified information from disclosure to the al Qaeda 14 prevents guilty verdicts. The failure to convict would be unalarming. The 14 would simply return to their detention cells at Guantanamo Bay as illegal combatants to remain there until international terrorism ceases, i.e., forever.

Due process in war crimes prosecutions should not be defiled for President Bush's campaign agenda, simpliciter.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.