O.J. AND OSAMA:
The Fear Of A Highly Publicized Bin Laden Trial, And The Problem With Military Commissions

"Can you imagine the spectacle of capturing a soldier-terrorist in Afghanistan, bringing them back with a publicly paid, high profile, flamboyant defense lawyer on television, making it the Osama network?" asked Attorney General John Ashcroft last week, in defending the new executive order on military commissions for trials of suspected terrorists.

Or to put it more directly: Can you spell O.J.?

As the most closely watched trial in recent decades, the O.J. Simpson prosecution is deeply etched into public perceptions of the trial process. It was the story of a celebrity defendant who hired a lawyer with star power and kept the populace glued to its TV sets for nearly nine months, sparking debate, national controversy, and racial polarization. It was also, not incidentally, the story of a defendant who was acquitted of brutal killings despite substantial evidence against him.

The desire to avoid another O.J. trial is understandable. But in seeking to ensure that Osama bin Laden and others of his ilk face a swifter and more certain form of justice, we should not lose sight of the purpose and function of criminal proceedings.

It may not be surprising that the Bush administration is reluctant to see Johnny Cochran represent bin Laden in court, but it is still astonishing, and alarming, to discover the extent to which the government is willing to sacrifice due process norms to secure a conviction. And the new executive order on military commissions not only fails to protect the basic rights of criminal defendants, it does so for trials in which the death penalty is contemplated.

To underscore the extreme nature of the circumstances under which the new order was issued, and to provide some constitutional justification for its contents, the order was signed by the president in his capacity as commander-in-chief of the armed forces. Prominent among the order's findings is that "an extraordinary emergency exists for national defense purposes." The order also sets out the finding that, because of the dangers posed by terrorism, it is not feasible for military commissions to apply "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

The order does not describe the precise shape and contours of the military proceedings it authorizes, leaving many details to be worked out by the Pentagon. Nonetheless, even in its broad outlines, the process it describes raise serious due process concerns.

Non-citizens suspected of terrorism will be tried not before a civilian judge or jury but rather before a military commission, presumably consisting of military officers. The use of military commissions, which answer to the president, abridges the essential criminal law guarantee of a neutral, independent, and unbiased factfinder.

Nor does the president's order contemplate direct appeals. It does not even contain any provision for appellate review by a separate military commission, just non-judicial review by the president or the secretary of defense as the president's designate.

The evidence introduced in the proceedings does not have to satisfy traditional rules of evidence, but must only meet the extremely low standard of having "probative value to a reasonable person." In other words, the commissions will be able to rely on hearsay and other forms of evidence that would normally be excluded from a criminal trial.

The order leaves many other crucial guarantees in doubt. It contains no requirement as to whether or to what extent trials will be public, nor even a rule that judgments be made public. It does not protect the presumption of innocence, or ensure that defendants have access to the evidence submitted against them, or even require that proof of guilt be established beyond a reasonable doubt. It is left undetermined to what extent defendants will be allowed legal counsel of their choosing, whether they will be able to communicate with counsel, and whether adequate time and facilities will be provided for their defense.

The end result of these due process shortcomings may be to throw the whole purpose of the exercise into jeopardy, by undermining the reliability of its results. While criminal proceedings held according to these new rules may result in severe punishments, it is not clear that all those punished will in fact be guilty of any crime.

How Military Commissions Will Undercut the U.S.'s International Credibility

In tension with the expressed desire of U.S. authorities to build an international coalition against terrorism, the use of military tribunals will severely hinder international cooperation. Already, officials in Spain have announced that their country will not extradite eight men detained on charges of involvement in the September 11 attacks unless the United States agrees not to try them in a military tribunal. One senior Spanish prosecutor, charged with explaining the Spanish position to American diplomats, stated the matter categorically: "No country in Europe could extradite detainees to the United States if there were any chance they would be put before these military tribunals."

Providing at Least the Same Standard of Justice the U.S. Demands of Others

Indeed, the United States itself has severely criticized the use of military tribunals to try civilians. In 1996, when U.S. citizen Lori Berenson was convicted of terrorism-related treason before a military tribunal in Peru, U.S. authorities expressed serious reservations about the proceedings. Just after the verdict was announced, State Department spokesman Glyn Davies said the United States "deeply regret[ted] that Ms. Berenson was not tried in an open civilian court with full rights of legal defense, in accordance with international juridical norms" and called for the case to be retried in an "open judicial proceeding in a civilian court."

If the O.J. trial provides a cautionary tale of justice as public spectacle, we should still be more wary of the other extreme. It is a basic axiom of criminal law that not only must justice be done, justice must be seen to be done. The new executive order on military commissions fails according to both these measures.