Military Tribunals to Proceed Despite Growing Opposition, Possible Supreme Court Case

Early public support for President George W. Bush’s executive order to try suspected terrorists in secret military tribunals will erode as Congress and the American people question the wisdom of the plan in the coming months, predicts a University of Alabama constitutional law expert.

Bryan Fair, UA professor of law, says Bush can expect members of Congress from both parties to raise questions about military tribunals and about the U.S. attorney general’s round up of Arab Americans and Arab nationals in connection with the terrorist attacks.

“Support for these tribunals and detentions will diminish as people see their own rights in jeopardy,” Fair said. “It is important to remember that terrorism does not have a color. A terrorist could live next door and be an American. We should not forget that an American bombed the federal building in Oklahoma City, and our response was not to round up all white militia men who hate our government enough to kill innocent people. Indeed, McVeigh and Nichols were tried in our existing courts.”

However, Fair said he expects military tribunals to go forward in 2002 despite criticism, and, while Bush’s executive order initially implied that the tribunals would be used only for suspected members of al Qaeda captured outside the United States, they will also be used to try suspected terrorists who have been detained within U.S. borders.

Military tribunals deny individuals all of the basic Bill of Rights protections, including the right to counsel, the right to a speedy trial, the right not to self incriminate and more, Fair said. Their secrecy means that bona fide evidence is not required. “An individual could make a deal with the government by charging someone else with a crime. Prejudice or racial profiling could go unchecked. Few Americans or resident aliens have the resources to match those of the attorney general or secret military tribunals. Without the protection of media scrutiny, I think there will be wrongful prosecutions, wrongful convictions and wrongful executions,” Fair said. “Our criminal justice system rests on the premise that persons are presumed innocent until proven guilty. Courts proceed best in the open.”

The Supreme Court may play a key role in determining the military tribunal and detention issues, Fair said. “The president’s constitutional power to order tribunals and detention without congressional approval may be challenged in court. If so, the case would probably take an expedited route to the Supreme Court.” If that happens, Fair said a divided court is likely to side with the president along lines similar to the Bush-Gore election decision.

The coming year will see a delicate balance between privacy and security, Fair said. “The courts will have to decide if the provisions of the Patriot Act, aimed at supporting law enforcement investigative efforts to protect Americans from terrorist attacks, amount to racial profiling or discrimination based on the way they are applied,” he said.

Bryan Fair can be reached at 205/348-7494 (office) or bfair@law.ua.edu.