Editorial/Op-Ed

President Bush's plan to use secret military tribunals to try terrorists is a dangerous idea, made even worse by the fact that it is so superficially attractive. In his effort to defend America from terrorists, Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law.

The administration's action is the latest in a troubling series of attempts since Sept. 11 to do an end run around the Constitution. It comes on the heels of an announcement that the Justice Department intends to wiretap conversations between some prisoners and their lawyers. The administration also continues to hold hundreds of detainees without revealing their identities, the charges being brought against them or even the reasons for such secrecy.

The temptation to employ extrajudicial proceedings to deal with Osama bin Laden and his henchmen is understandable. The horrific attacks of Sept. 11 give credence to the notion that these foreign terrorists are uniquely malevolent outlaws, undeserving of American constitutional protections. Military tribunals can act swiftly, anywhere, averting the security problems that a high-profile trial in New York or Washington could pose.

But by ruling that terrorists fall outside the norms of civilian and military justice, Mr. Bush has taken it upon himself to establish a prosecutorial channel that answers only to him. The decision is an insult to the exquisite balancing of executive, legislative and judicial powers that the framers incorporated into the Constitution. With the flick of a pen, in this case, Mr. Bush has essentially discarded the rulebook of American justice painstakingly assembled over the course of more than two centuries. In the place of fair trials and due process he has substituted a crude and unaccountable system that any dictator would admire.

The tribunals Mr. Bush envisions are a breathtaking departure from due process. He alone will decide who should come before these courts. The military prosecutors and judges who determine the fate of defendants will all report to him as commander in chief. Cases can be heard in secret. Hearsay, and evidence that civilian courts may deem illegally obtained, may be permissible. A majority of only two-thirds of the presiding officers would be required to convict, or to impose a death sentence. There would be no right of appeal to any other court.

American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants' basic rights. Federal prosecutors in New York recently won guilty verdicts against bin Laden compatriots who were accused of bombing two American embassies in Africa in 1998. Osama bin Laden himself was indicted in those attacks. Federal courts have ample discretion to keep sensitive intelligence under seal, while still affording defendants a legitimate adversarial process. The law already limits the reach of the Bill of Rights overseas. American troops need not show a warrant before entering a cave in Afghanistan for their findings to be admissible at trial in the United States.

Using secretive military tribunals would ultimately undermine American interests in the Islamic world by casting doubt on the credibility of a verdict against Osama bin Laden and his aides. No amount of spinning by Mr. Bush's public relations team could overcome the impression that the verdict had been dictated before the trial began. Reliance on tribunals would also signal a lack of confidence in the case against the terrorists and in the nation's democratic institutions.

A better way to administer justice must be found. If Mr. Bush is determined to bring terrorists to trial abroad, he should ask the United Nations Security Council to establish an international tribunal like the one set up to deal with war crimes in the Balkans. The proceedings of this court have been fair and effective, and it is respected around the world. If Slobodan Milosevic can be brought to trial before such a court, so can Osama bin Laden.

More than half a century ago the United States and its allies brought some of history's most monstrous criminals to justice in Nuremberg, Germany. In his opening statement at the trial of Nazi leaders, Robert Jackson, the chief American prosecutor, warned of the danger of tainted justice. "To pass those defendants a poisoned chalice is to put it to our lips as well," he said. President Bush would be wise to heed t