A Bellwether for the Power of a President and the Rights We Claim to Hold Dear Indeed

Important article in The Times:

TAKE a good look at the prosecution of Zacarias Moussaoui, an admitted member of Al Qaeda who may soon be sentenced to death, after pleading guilty to conspiracy in connection with the Sept. 11 attacks. It may be the last time a suspected terrorist will enjoy the full panoply of rights — a jury of civilians, an independent judge, the guarantee of an open trial — accorded to criminal defendants in the United States.

What are the implications of an unending war with no geographical boundaries?
Instead, the government plans to try accused terrorists before special tribunals in which the judge is appointed by the Pentagon, the jurors are military officers and certain canonical rights in our civil system — like the right to be present at all sessions of the trial — are absent. The future of the tribunals will be up to the Supreme Court, which will rule on their legality in Salim Hamdan v. Defense Secretary Donald Rumsfeld, which is to be argued on Tuesday.

Salim Hamdan, born in Yemen, was captured in Afghanistan in November 2001 and has confessed to working as a driver for Osama bin Laden. Like Mr. Moussaoui, Mr. Hamdan was charged with conspiring with Al Qaeda to commit acts of terrorism. The critical distinction, though, is that Mr. Hamdan was charged as a war criminal, meaning he was designated for prosecution before a military tribunal rather than in a federal court. His lawyers, led by Neal K. Katyal, a professor at Georgetown University, have sued to block the tribunal; hence Hamdan v. Rumsfeld.

There is much more at stake here than the fate of one detainee. Mr. Hamdan's case will test a broader strategic shift in the American approach to fighting terrorism. By treating terrorism as an act of war rather than a crime, the Bush administration is hoping to end an embarrassing string of botched criminal terrorism prosecutions, including those of Mr. Moussaoui — where the judge recently rebuked a government prosecutor for improperly coaching witnesses — and Sami al-Arian, who is accused of being an Islamic Jihad activist and who was acquitted of various charges by a Florida jury several months ago

Why have we lowered the standard of proof? Is this really what we want?