November 18, 2001	Sunday	Ramazan 2, 1422

LOS ANGELES: There was a time when soldiers in war would be summarily executed after ‘drumhead’ trials. These were modest affairs, often occurring on a battlefield with a commander using an overturned battle drum as a ‘bench.’

Drumhead trials seemed like quaint historical relics until this week when the government announced the creation of a secret military tribunal for terrorists. Despite prior terrorist trials held in federal courts, the Bush administration has decided to create an ad hoc court with its own rules and obvious conveniences. It is a court that appears designed with the ends and not the means of justice in mind.

It is also a decision that may snatch defeat from the jaws of victory in the fight against terrorism. The creation of this secret tribunal appears to have less to do with the prosecution of terrorists than it does the prosecution of the war in Afghanistan. As we all watched the Northern Alliance race across Afghanistan in hot pursuit of crumbling Taliban forces this week, one could imagine the growing apprehension among the US justice department officials.

The leisurely pace of the war had been reassuring for some officials who fretted over the possible capture of Osama bin Laden or his top lieutenants. Many in government had hoped that Osama would be conveniently vaporized during the course of a methodical air campaign. With enough ‘daisy cutter’ bombs and B-52 attacks, it was hoped that the law of averages would balance the books with Al Qaeda.

Now there is a real chance that someone is going to trip over Osama, who may be both alive and interested in a trial. Such a possibility creates a positively nightmarish scenario for the administration: an acquittal or hung jury in the trial of an Al Qaeda leader.

Such a possibility is not as remote as one might think. All national security trials highlight a conflict between what is considered compelling intelligence and what is considered admissible evidence of guilt.

The most probative information gathered by intelligence agencies is often inadmissible in federal court because of the means of its collection or the sources it came from. In this way, a mountain of intelligence can be quickly reduced to a molehill of largely circumstantial evidence.

One problem for the government is the sometimes unpredictable nature of both US justice and jurors. Americans have a nasty habit of insisting on evidence of guilt, even in the most highly charged trials. This was the case before America’s founding, when a colonial jury refused to convict British soldiers standing trial for the Boston Massacre. Their defence counsel was none other than John Adams, and the verdict is still cited as the measure of American justice.

Such a verdict today would be the measure of disaster for the administration. Imagine Osama taking that John Gotti victory walk after an acquittal as the new ‘Teflon Terrorist.’ Not only would such an outcome inflame the public, it immediately would reinforce the popular view in the Muslim world that the United States simply used the attacks to persecute Muslims.—Dawn/LAT-WP News Service (c) Los Angeles Times.