Tribunals still flawed.

Byline: The Register-Guard

There's an old saying about ducks (the waddling kind, not the basketball-dunking variety): If it looks like a duck, waddles like a duck and quacks like a duck, then it's probably a duck.

The same can be said of military tribunals. The Bush administration has taken the president's original executive order calling for makeshift military courts designed to produce predictable outcomes and has dressed it up in a dinner jacket, silk tie and Gucci loafers. But it still looks like a military tribunal, waddles like a military tribunal and quacks like a military tribunal.

After a firestorm of criticism, Bush and Secretary of Defense Donald Rumsfeld scrambled to revise the president's original proposal to blunt some of the most serious objections. However, the new guidelines still fall below acceptable standards of legal fairness.

The improvements are substantial. They include the guarantee of a public trial, with the necessary provision that it might be closed to protect sensitive evidence; a fundamental presumption of innocence; the defendant's right to remain silent without recrimination; the right to either a military or civilian lawyer; and the right to inspect prosecution evidence.

The addition of such due-process protections represents a welcome shift from last November's executive order. But the new rules still fail to provide the fundamental protections that defendants would have in civilian courts.

The most glaring weakness is the government's ability to introduce hearsay evidence, which could easily be falsified and would be difficult to disprove in cross-examination. The new rules also permit a guilty verdict by a two-thirds vote of a judicial panel that consists of three to seven members of the military. Simple logic dictates that if two out of six judges find a defendant not guilty, the fundamental standard of "reasonable doubt" has not been met.

The new rules allow for appeals to a military panel and ultimately the president. An appeal to a panel selected by the same government that has captured a defendant and is seeking his conviction would not be a legitimate appeal. If the administration persists with plans for military tribunals, defendants should have, at the minimum, a right to an expedited appeal to a high-level U.S. civilian court.

It remains to be seen if the administration will end up sending any cases before these tribunals. So far, the administration has sent the few terrorism suspects it has actually charged with crimes to civilian courts. The Pentagon says there are no tribunal candidates so far among the al-Qaeda and Taliban fighters being held at Guantanamo Bay in Cuba. That's troublesome, too. The government must decide soon whether to bring charges against these prisoners or release them. Indefinite detention should not be an option in this country.

The administration should pull the plug on its plans for military tribunals. Suspected terrorists should be tried in civilian courts, which have shown themselves more than capable of handling such sensitive, difficult cases. That's the way it should be in a country that prides itself on its sense of fairness and justice.