If the American Bar Association (ABA) endorses President George W. Bush's controversial plan to try accused terrorists in military tribunals, it will be over the objections of Providence lawyer Justin Holden.

Holden, one of three Rhode Islanders attending the ABA's House of Delegates meeting in Philadelphia next week, says Bush's plan "is a real bad idea." But another local delegate to the gathering, Woonsocket probate lawyer Joseph Roszkowski, says he has an open mind on the issue and adds that there seems to be "ample authority" to establish the panels.

Bush's November executive order establishing the tribunals calls for "a full and fair trial," but it upends legal principles that most Americans associate with justice. The rules of evidence are looser than in civilian courts, and a two-thirds vote will determine both guilt and whether the death penalty will be imposed. As for rights of appeal, Bush or the secretary of defense could reverse decisions, but US and international courts are expressly prohibited from reviewing cases.

"It is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States," the order summarizes.

While many lawyers and the American Civil Liberties Union denounced Bush's order, an ABA task force conditionally endorsed tribunals in January. The task force also called for safeguards such as public trials, the presumption of innocence, the right to choose an attorney, and imposition of the death penalty only after a unanimous decision. And it noted that the US Constitution prohibits military tribunals for anyone residing in the US, regardless of their citizenship status. The entire ABA, which represents more than 400,000 lawyers, must now decide whether to endorse the task force's report.

Holden believes civilian courts should handle terrorism cases. "I'm not sure we should be lowering that standard," he adds, citing abuses of military courts in other countries. As for Vice President Dick Cheney's assertion that terrorists don't deserve the protection of US law, Holden responds, "We all know they're bad people, so why do we need to go through a trial?" We did that in Salem [at the witch trials] a couple hundred years ago, didn't we?"

Roszkowski, a member of the ABA's executive board, refused to comment on Holden's remarks, but he seemed surprised by them. Rhode Island's third ABA representative, Providence lawyer Richard MacAdams, didn't return phone calls seeking comment.

Issue Date: February 1 - 7, 2002