Trials of this century: when you prosecute a terrorist ...

"IT would be unacceptable, legally," Sen. Lindsey Graham of South Carolina inveighed to the New York Times on September 8, "to give someone the death penalty in a trial where they never heard the evidence against them."

Such has been the distortion of President Bush's eminently sensible proposal for the trial of unlawful alien combatants--which is to say, of brutal al-Qaeda jihadists. In fact, no one, least of all the president, has proposed anything remotely like the star chamber of Graham's Michael Mooreish description. As an accomplished trial lawyer and still-active military judge, Graham ought to know better.

Graham, along with Sens. John McCain and John Warner, is currently taking aim at military-commission procedures, and thereby threatening an important intelligence advantage the U.S. has in the war against Islamic fascism. Intelligence is even more crucial in this conflict than it would be in a more traditional war. The ummah on whose behalf jihad is waged is metaphorical; it has no territory or public fisc to defend. Military strikes and embargoes are useless against what Americans have most to fear: radical tentacles spread throughout the West and, worse, cells striving to embed in U.S. cities. Diplomacy and other efforts to win "the war of ideas" will take at least a generation to succeed--assuming that they will succeed at all. In the here and now, our main weapon is intelligence: information about who the terrorists are and what targets they are planning to strike. The lives of, literally, millions of Americans depend not only on getting that information but on preserving the sources and methods for obtaining it.

With the nation at war and under persistent threat from an enemy that seeks to mass-murder Americans, no U.S. policy initiative can responsibly go forward without accounting for the intelligence consequences. That particularly includes terrorist trials.

PROTECT THE SOURCES

Legal proceedings are a treasure trove for terrorists. Throughout the 1990s, when terrorism was treated as essentially a law-enforcement issue, jihadists--mostly aliens, some of whom had never set foot in the U.S.--were repeatedly brought to trial and regarded as if they were vested with the same plethora of constitutional protections as American citizens accused of quotidian crimes. That meant they were beneficiaries of the criminal-rights revolution begun in the 1960s.

Most Americans would be shocked to observe what this meant in practice. Under discovery rules, the government must provide, among many other things, any information in its possession that can be deemed "material to preparing the defense"--which means, anything a clever defense lawyer might find helpful. The current construction of the 1963 "Brady doctrine" mandates disclosure of any information that is even arguably material and exculpatory, and, in capital cases, any information that might induce the jury to vote against a death sentence, whether it is exculpatory or not. And the government must turn over all prior statements made by witnesses it calls, and, often, even of witnesses it does not call. This is a staggering amount of information, certain to illuminate not only what the government knows about terrorist organizations but also the intelligence agencies' methods and sources for obtaining that information.

Factor on top of that three trial dynamics that ought to be familiar to someone of Senator Graham's background. First, prosecutors draft charges broadly to take tactical advantage of rules that liberally permit introduction of evidence in conspiracy cases. Because the public interest in conviction is at its height in terrorism cases, those tend to feature the broadest indictments of all. But there is a hefty price tag: The more sweeping the indictment, the more revelation of precious intelligence due process demands. Second, whenever there is dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial dictates, rather than by the executive branch on the basis of what public safety warrants. Third, because terrorism trials are lengthy and expensive, the public interest in their being concluded with finality is immense. The risk of reversal and retrial incentivizes prosecutors to raise more discovery issues with the presiding judge, and the judge, in turn, to order more disclosure than even the generous rules require--because, in our system, judges can never be reversed for ruling in favor of a defendant on a discovery issue.

Naturally, this information banquet is routinely surrendered with judicial admonitions that defendants may use it only to prepare for trial, and may not disseminate it for other purposes. To the extent that classified information is implicated, it is also theoretically subject to the constraints of the Classified Information Procedures Act. Nevertheless, people who commit mass murder, who face the death penalty or life imprisonment, and who are committed foremost to damaging the United States, tend to be unconcerned about violating court orders (or, for that matter, about being hauled into court at all). Our congenial rules of access to attorneys, paralegals, and investigators (which are replicated, perilously, at Guantanamo Bay) make it a very simple matter for accused terrorists to transmit what they learn in discovery to their confederates on the outside--and we know that they do so. Indeed, in my own 1995 prosecution of the jihadist network that bombed the World Trade Center and plotted to strike New York City landmarks, intelligence from government files provided to our twelve defendants was delivered directly to Osama bin Laden in Sudan.

The Constitution does not mandate all of this beneficence. Much of it is afforded prudentially and represents the kind of justice system we want for American citizens who are presumed innocent and vested with Bill of Rights protections. It is not, however, the entitlement of aliens, much less those whose only connection to our nation is the waging of a barbaric war. To them, we owe only rudimentary fairness, not procedures that weaken government's ability to perform its highest duty--protecting Americans. Thus, for example, the German saboteurs captured in the U.S. in June 1942 were tried by FDR's military commission in July and electrocuted--after their convictions were upheld by the Supreme Court-in August.

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DESIGNING A FAIR COURT

Congress should long ago have prescribed a system, such as a national-security court, which gets terrorists out of the civilian courts and affords them fundamental fairness while protecting public safety (i.e., defending our intelligence). Now, the need for action presses because of the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld, which invalidated the military-commission procedures designed by the administration pending congressional action. The Court, practically speaking, imposed no barriers on what Congress might do. The aliens at issue are not entitled to constitutional protections, and the international-law obligation imposed by the Court--Common Article 3 of the Geneva Conventions--is very elastic (not to mention that Congress and the president are free to amend, ignore, or even abrogate it). It merely calls for trials "affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The military commissions proposed by the administration on September 6 easily surpass this fuzzy standard. Contrary to Graham's posturing, our enemies would be given elaborate notice of the charges against them, and would have a presumptive--albeit qualified--right to be present at all stages of the proceedings. They would be presumed innocent (notwithstanding that they were presumed guilty on the battlefield) and the prosecution would bear the burden of proof. Significantly, they would be entitled to counsel: a military lawyer underwritten by the American taxpayers they are pledged to slaughter and, in addition, a private attorney (one of the legion tripping over themselves to volunteer their services to al-Qaeda) if the combatant chooses to retain one. They would be given access, pretrial, to any evidence the prosecution intends to introduce and to any known exculpatory evidence. They would have a right to testify, or to decline to do so without the drawing of an adverse inference. They would have access to reasonably available evidence and witnesses, and to investigative resources "necessary for a full and fair trial" (which defense counsel have already been using liberally). They would enjoy the right to present evidence and to cross-examine witnesses--as well as access to interpreters if necessary to understand the proceedings. Presumptively, the trial would be open to the public, although there would be an exception for sealing portions for national-defense or witness-security purposes--substantially similar to the practice followed by the tribunals much loved by transnational progressives, such as the International Criminal Court and the war-crimes courts for Rwanda and the former Yugoslavia. Further, if convicted, the jihadists would benefit from sentencing procedures very similar to those given civilian defendants.

Graham's overwrought objection to the adequacy of these lavish protections centers on a trial rule that would allow evidence to which the accused has been denied personal access. Not denied all access, mind you; just personal access. "Where in American jurisprudence," he wrote to Secretary of State Condoleezza Rice on September 15, "do you find support for the concept that a person accused can be tried and convicted on evidence which that person has no opportunity to see, confront or rebut?"

This is a frivolous question. After all, American jurisprudence is principally about the rights of Americans, not alien terrorists who would use sensitive information to kill Americans. But put that aside. Graham's trope, more importantly, is a preposterous misrepresentation of the Bush proposal.

To begin with, the rules presume that the defendant will be permitted to review all of the evidence against him. The provision Graham distorts represents a rare, tightly controlled, and necessary exception that relates not to the entire trial but to isolated bits of highly classified information (e.g., the name of a witness who is still undercover and providing life-saving intelligence, or a technical explanation of a secret method that was used to intercept relevant conversations). Furthermore, as Graham the military judge should appreciate more than the average legislator, the denial of personal access under the Bush proposal cannot, by definition, deprive the defendant of a fair trial.

That's because of the prominent role the rules envision for judges. You may remember judges: They're the lawyers senators are forever seeking to interpose in such executive tasks as determining which terrorist operatives should be monitored. Here, by contrast, the judges would be asked to perform the legitimate work of judges, the work they typically do with great skill--and yet we are now told we can't trust them to do it fairly.

In any event, the rules would permit denial to the defendant of personal access to some classified evidence--specific pieces of evidence that might amount to a bare fraction of the prosecution's case--and only upon a judicial finding of "extraordinary circumstances." Not just any circumstances would do: The judge would have to conclude exclusion was necessary "(i) ... to protect classified information the disclosure of which ... could reasonably be expected to cause identifiable damage to the national security, including intelligence or law enforcement sources, methods, or activities; or (ii) ... to ensure the physical safety of individuals; or (iii) ... to prevent disruption of the proceedings by the accused." Crucially, even if such risks were found to exist, the judge would still not be permitted to order exclusion if doing so would "deprive the accused of a full and fair trial." (Emphasis added.)

Well, what if the judge made the wrong decision? In that unlikely event, the Bush rules provide for abundant appellate review. Convicted jihadists would have a right to appeal not only to a newly established Court of Military Commission Review, but then to a federal civilian appellate court (the D.C. Circuit) and, ultimately, to seek certiorari review in the Supreme Court. (By contrast, the legislation favored by Graham calls only for review by the Court of Appeal for the Armed Forces and certiorari in the Supreme Court.) That is four bites at the apple. Should we not assume that somewhere in the course of review, re-review, and re-re-review, the nation's top judges will figure out if there has been a miscarriage of justice? And figure it out not on an anticipatory hunch--which is what Graham and his allies are offering--but based on an evaluation of what courts normally demand: a complete, concrete record?

RHETORICAL MISCARRIAGE

The star-chamber bombast--including the New York Times's claim that the administration would "deny suspects and their lawyers the right to see classified evidence used against them" (emphasis added)--is stunningly empty. In fact, each defendant's military lawyer would be given access to all of the trial evidence, no matter how sensitive and highly classified it may be. So, while the jihadist himself may be foreclosed from some sensitive details, and his privately retained counsel may also be excluded if he lacks sufficiently high clearance, this would not mean the suspect was shut out. The military lawyer, whose sworn duty is to represent the accused faithfully, would still get to review the evidence. Those lawyers--who, it should be noted, have been appropriately zealous in representing Guantanamo detainees--would have the opportunity to discuss the case thoroughly with the terrorist, and thus will be poised to make any arguments in his favor, and to strike or minimize the effect of any sensitive information from which the accused himself was precluded.

So why are patriotic, fiercely pro-military guys like Graham, McCain, and Warner implacably opposed to such patently fair procedures? Their stance is irrationally premised on a laudable impulse--concern that any perceived mistreatment of jihadists will redound to the detriment of captured U.S. forces and sully America's reputation in the world. But the unavoidable truth here is that our soldiers, if captured by Islamic terrorists, will be tortured and killed. That's what Islamic terrorists do. We simply do not, in law or logic, owe jihadists the same trial rights we owe any honorable combatants, much less our own troops. What's more, rewarding terrorists with rights that protect our own troops under the Uniform Military Code of Justice--the model Graham urges--can only encourage their methods, imperiling all Americans, including our men and women in uniform.

As for the vaunted "international community," it is rife with actors who are affirmatively hostile to American interests. And even those favorably disposed to us do not shoulder the gargantuan duties we have taken on, for our allies as well as our own citizens. Human-rights cant--oddly offered for the benefit of the most heinous human-rights violators--is a convenient cudgel for those unburdened with actual responsibilities. It cannot be the master of our national-security policy.

What we owe the world are thoughtful war-crimes trials that do justice without unduly jeopardizing innocent lives by compromising vital intelligence. President Bush's proposal provides exactly that. Senator Graham ought to be one of its most credible supporters. It's a shame that he's anything but.

Mr. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.