Trial in error?

People rush to judgment for two reasons: 1) It feels good and 2) it avoids any uncomfortable encounters with the judged. George W. Bush's Nov. 13 executive order authorizing military tribunals is the bureaucratic equivalent of a rush to judgment.

Granted, hauling the terrorists responsible for 9-11 before drumhead courts on aircraft carriers or remote Pacific islands would go a long way toward satisfying the popular thirst for revenge. Defending the executive order in a Nov. 19 press conference, White House spokesman Ari Fleischer offered the inevitable precedent -- that FDR subjected a handful of German saboteurs to trial by secret military tribunals -- before revealing the Bush administration's real assumption, saying the tribunals were "something, frankly, most Americans would support."

Though historical precedent and public opinion are excellent indicators of what a politician can get away with, they are often poor guides to the complicated business of rendering justice.

Quick-and-dirty military tribunals present the best method of silencing defendants before they can mount the kind of defense that might embarrass Washington.

Given the chance, bin Laden, Mullah Omar or their various underlings could make plausible "you did it too" arguments. And why risk the chance of accused terrorists revealing anything more about the connections between Saudi money, the Pakistani military and secret police, the Taliban and al-Qaeda? Then there's the hypocrisy of fighting a global war against terrorism while having close diplomatic and military relations with Pakistan, a notorious state sponsor of terrorism in Indian Kashmir.

Domestic politics notwithstanding, the problem with rushing to judgment is that you are likely to judge badly. Judging badly isn't just a matter of convicting and sentencing the wrong person (though that's no small consideration). How you convict and sentence is also crucial. Trials are more than determinations of responsibility and punishment; they are the theaters where law is legitimated. Deny even the most patently guilty defendant a fair trial and the resulting judgment is forever suspect as an arbitrary exercise of power. And that is especially true in high-profile war crimes prosecutions.

What about Bush's military tribunals would deny accused terrorists a fair trial? First, tribunal judges would not be independent of the prosecution; both the judges and the prosecutors would be military officers appointed by Secretary of Defense Donald Rumsfeld. Any judge with the temerity to vote against conviction or a death sentence would effectively end his military career. Second, Rumsfeld would set evidentiary rules under which the prosecution isn't required to disclose all of the evidence to the defense. How can defense counsel argue against prosecution evidence they can only guess at?

Third, there is no appeal of convictions and sentences, which can be decided on a two-thirds vote. A convicted defendant could ask for a presidential pardon. But how likely is that now that Bush thinks he might be a two-term president after all?

With no reasonable alternatives, Bush's military tribunals would suffice. Anything is better than the battlefield execution of prisoners. The Hague Tribunal, established by the United Nations Security Council to punish crimes committed in the wars of the Yugoslav breakup, provides a workable alternative model. The experienced civilian judges who sit on the Hague Tribunal are independent of the prosecution. Evidentiary rules require the prosecution to disclose evidence to the defense (though with the exceptions necessary to protect security and ongoing investigations). And convictions and sentences may be appealed to an Appeals Chamber.

Consider the case of Dusko Tadic, the brutal Serb commandant of the Omarska concentration camp. Convicted on 11 counts, Tadic was acquitted of nine others because of insufficient evidence. The insistence on sufficient evidence left no doubt about Tadic's guilt, and the resulting trial transcript provides an historical record no Serb nationalist can rewrite. Tadic cannot become a martyr now.

Bush's military tribunals, however, threaten to turn monsters into martyrs.

If the war against terrorism is nothing more than a struggle against individuals, their organizations and their state sponsors, it is unlikely to succeed. The war on terrorism needs to be a struggle for something -- and that something ought to be a planet governed by international law and not force alone. Winning isn't enough if you lose the peace that follows.

John Hickman is an associate professor of comparative politics at Berry College.