HLS Professors Criticize Tribunals

Several professors at Harvard Law School have said this week that an order issued Tuesday by President Bush, creating special military tribunals to try terrorism suspects, would create an inappropriate and potentially unfair venue for deciding the fates of these suspects.

Armstrong Professor of International, Foreign and Comparative Law Anne-Marie Slaughter said that “the order flies in the face of the values” of this country and is “not consistent with the Constitution” because many safeguards normally associated with the judicial process would be not be present in military tribunals.

Ames Professor of Law Philip B. Heymann, an expert in terrorism and political violence, also expressed concern that the looser rules of evidence in the tribunals would lead to convictions that could otherwise not be obtained.

These tribunals—which even Bush administration officials admitted would limit the rights of defendants more than standing military courts—would have the authority to render verdicts, up to and including death with a two-thirds vote of officers present.

“The tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people,” Heymann said.

Administration officials pointed to the military tribunals established during the Civil War and World War II as precedent for the President’s order.

Slaughter, an expert in international law, argued that invoking military tribunals was not the right precedent for the current situation.

Slaughter said that terrorists would better be characterized as criminals than “as unlawful belligerents who violated the laws of war.”

The Bush order “dignifies terrorists as enemy soldiers” and plays into their hands by portraying the terrorists as they wish.

The order also precludes review of the military tribunal’s proceedings by any other court, including federal appellate courts and the Supreme Court.

Slaughter believes that this could generate the perception that the United States was acting as “judge, jury, and executioner,” thereby undermining the multilateral antiterrorism effort.