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Archive for Wednesday, December 5, 2001

How to try the terrorists

December 5, 2001

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In recent weeks, President Bush and Atty. Gen. JohnAshcroft have made several decisions which have generated a substantial amount of debate. These include the president's decision to try those charged with terrorism in military tribunals and the attorney general's decision to abrogate the recent practice of not eavesdropping on conversations between prisoners and their lawyers in order to preserve the sanctity of the attorney-client privilege. A number of points in these debates are worth further discussion.

What I find most interesting about the president's decision is the nature of the arguments that have been made both for and against. The primary arguments in favor of using military tribunals have been historical and practical. On the historical side, government officials have been quick to point out that there is ample precedent for such a process and that it was embraced even by President Abraham Lincoln. On the practical side, officials have argued that such tribunals are particularly well-suited to trying suspected terrorists because of the secrecy of these proceedings, secrecy necessary to protect vital sources of intelligence.

While I think both of these arguments have points to commend them, neither, in my opinion, are that strong. In fact, it is true that the United States has used military proceedings of various sorts to try civilians over the past two centuries. Indeed, during the Civil War, Union army regulations provided for military justice to be applied to a wide range of civilians. But the fact of the matter is that society has changed over the past century and one-half as has our legal system and our ideas of due process of law.

While it is interesting that Lincoln favored the use of military tribunal this should not be dispositive of the issue. Similarly, the argument that it is secrecy which makes military tribunals necessary is not the strongest argument the government has at its disposal. I believe the strongest argument for the president's policy is the simplest one: the nature of terrorism and the types of evidence available to prosecutors as well as the risks attendant upon lengthy prosecutions suggests strongly that no suspected terrorist should be tried on American soil or according to traditional standards of peace-time justice.

Sen. Joseph Biden, who is one of Congress' most liberal members and a lawyer himself was quoted as saying that the best outcome of the hunt for Osama bin Laden is one where bin Laden dies in the process. We know from past experience that a trial would encourage further terrorist acts and would put all those involved in such a trial in mortal peril.

On the other hand, I think that the government must be extremely careful about just who will be subject to these military tribunals. We need a clearly stated definition of terrorism and terrorist so that those whose trials according to traditional processes would not endanger American lives further and for whom standard evidence would be available will not automatically be subject to such tribunals.

The president has suggested that he will decide who, if anyone, will be subject to trial before military tribunals. Perhaps, this is not the best way to make these decisions. Instead, I think it would be far better if the decision were left to U.S. attorneys, and, perhaps, even federal judges, the people who otherwise make prosecutorial decisions, and that they act according to established guidelines. The president has other matters to be concerned about on a day-to-day basis; he should let his own Justice Department and the federal judiciary make these decisions. This might well comfort many of the critics of the proposed plan.

The attorney general's decision to eavesdrop on prisoner-lawyer conversations goes strictly against one of the core tenets of American law, i.e. that such conversations must be confidential so that those accused of crimes may have full communications with their lawyers and, thereby, have adequate representation. The difficulty with the attorney general's plan, in my opinion, is that to do away with lawyer-client privileged communications starts us down on the proverbial "slippery slope" and truly harms the American justice system. His proposal may well be within his legal powers, but one must ask whether it is wise in its present form.

One possible way to deal with this proposal would be to shift the burden of protecting the public to lawyers themselves. Currently, the legal ethics rules applicable to lawyers in most states permits but does not require them to disclose any information communicated to them by their clients when such communications have revealed that the client plans to commit a crime. I believe that if this rule were changed to require lawyers to disclose such information to the authorities, it would go a long way to solving the problem.

Of course, lawyers would have to be honest and not in a conspiracy with their clients designed to foster future criminal acts. If the government believed that such a conspiracy were afoot, then I do think it would be appropriate to permit the government to eavesdrop on lawyer-client conversations under the supervision of a judge.

In the end, I think that both the government and its critics need to recognize that there are very important issues at stake here and that compromises which protect the American people and permit the government and law enforcement to work efficiently without needlessly harming civil rights are what both sides should be aiming toward. If everybody works in a spirit of cooperation and recognizes the importance of the ultimate goals, then I believe that we can find a means to achieve those goals and, at the same time, not sacrifice individual rights unnecessarily.




Mike Hoeflich is a professor in the Kansas University School of Law.

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