Lawyers Journal

Journalists see rights eroding in Bush administration efforts

A prominent journalism leader has joined Massachusetts legal experts in criticizing the Bush administration's plan to try terror suspects before special military tribunals.
Speaking at a Hill & Barlow forum on tribunals and press freedom, Nieman Foundation curator Robert H. Giles said the White House plan's vagueness and lack of clear legal framework for prisoners' rights have created "unnecessary opposition."
The proposed tribunals would be the first since World War II; they offer fewer legal rights to defendants, can operate in secrecy, and defendants' rights of appeal are unclear.
The Massachusetts Bar Association has called for modifications to the administration's plans. At its Jan.24 meeting, the MBA's House of Delegates approved recommendations of its Presidential Task Force on the Preservation of Rights, Liberties and Access to Justice, which warned that failing to guarantee defendants' traditional rights will erode confidence in America as a defender of civil liberties and due process rights.
Giles, former executive director of the Freedom Forum and a past president of the American Society of Newspaper Editors, said other administration actions have given "journalists and citizens alike plenty to worry about.
"It's trying to exert control while proclaiming press freedom," he said.
Giles said the nature of the war undermines the Pentagon's Gulf War strategy of media control, because vast stretches of Afghanistan are open, though risky, to journalists. He said that although the press has been able to report news of collateral damage, but has had only limited access to pilots and troops.
Giles said the administration has been less ready to honor Freedom of
Information requests. In the same vein, he praised a court challenge to closing Detroit immigration hearings to the press.
Calling news organizations' self-censorship - notably, some networks' acceding to the administration's request to scrutinize tapes of Omar Bin Ladin - "shameless," Giles said, "The most patriotic thing the press can do is to do its job. The press is terribly wrong in caving in. It must ask hard questions when everybody's marching in lockstep."
Boston Globe media writer Mark Jurkowitz expanded on that theme.
"There's a new P.C. (political correctness) in America," he said. "There's a tidal wave of American support of the war, and the biggest problem (for the press) is psychological. How unpopular are we willing to be?"
Jurkowitz insisted that the news media are careful not to jeopardize national security.
"News organizations tend to be patriotic," he said. "They make very sure not to endanger American lives to get a scoop."
American press freedom - or lack of it - serves as a world model, said Owais Aslam Ali, chairman of Pakistan Press International and a current Nieman Fellow.
"America sets the trend," he said, and the U.S. media's delay in showing Bin Ladin tapes reduces American media credibility.
Lawyers express serious concerns Boston attorney and former MBA President Michael S. Greco, speaking at the same event, expressed "serious Constitutional concerns" about military tribunals.
Greco, a Hill & Barlow partner, was a member of the American Bar Association committee that recommended using tribunals only in "narrow circumstances in which compelling security interests justify their use."
He headed the 19-member Massachusetts delegation to the ABA's national meeting in Philadelphia last month (February). There, the Association's policy-making legislature voted 286-147 in favor of the committee's recommendation that terrorism defendants be guaranteed extensive legal protections.
After the Bush administration rejected the ABA's offer to delay taking such a position if the White House guaranteed defendants' basic legal rights, the ABA declined the White House request to not oppose the tribunals.
John D. Hutson, dean of Franklin Pierce Law Center and a former judge advocate general of the Navy, called the Bush plan "ill-advised and premature."
"The war on terrorism is as different from World War II as the World War II was from the Revolutionary War," Hutson said. "To pretend it's a war while we're fighting it and then putting it in a legal box is wrong."
He was equally critical of trying terror suspects in civilian court trials. Concerned that acquittals might result if a judge overruled hearsay evidence, or threw out evidence because a search warrant wasn't obtained for a cave in Afghanistan, Hutson recommends military court trials.
These venues "are accustomed to relaxed rules of evidence, where relevant, reliable, and probative" evidence may be considered, he said. "This is a way people can be tried in a full, fair forum without diluting the sanctity of the trial system."
Hill & Barlow lawyer Richard A. Wiley, a former judge advocate's officer in the U.S. Air Force, recommends trying lawful aliens and citizens in district courts and non-citizens or illegal aliens by courts- martial.
He said courts-martials, governed by the Uniform Code of Military Justice, can be speedy, conform to strict evidentiary rules, and include clear rights of appeal. And he noted that district courts have historically tried terrorists whom, like 19th century pirates, "are beyond the pale of civilized behavior."
Wiley said the primary purpose of the Sept. 11 bombings is to trigger a U.S. reaction that would further enflame moderate Muslims. So "don't overreact," he warned. "The world must perceive that justice is done."

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