It now seems increasingly

November 24, 2001 12:39 p.m.

It now seems increasingly clear, with a little reflection and after some more voices have chimed in, that President Bush’s executive order creating military tribunals is profoundly ill-conceived. What damns it now is not so much the essence of the matter – the actual tribunals, which damn themselves sufficiently – but the outlying facts.

Consider a few …

First, the fact that the order is wildly and recklessly overdrawn, when this is precisely the sort of order you’d want to draw quite narrowly. Anyone who is not a United States citizen can be bumped out of the civilian courts and into the ersatz military tribunal system on the simple say-so of the president. That is, almost by definition, arbitrary.

Second, not only did the president not call upon the Congress to enact legislation creating the tribunals, he also didn’t announce his intention to issue the order (even if informally) ahead of time – something that would have allowed some de facto consultation and comment.

The best argument for the tribunals is the need to safeguard intelligence assets. But upon examination, the federal courts seem to have ample protections already in place to achieve that end.

The more irascible sort of conservative will likely see this sort of argument as liberal carping or out-of-touch civil libertarian fastidiousnes that disqualifies the arguer as someone not up to the challenge of facing the terrorist threat. But as we noted a week or so back, the issue is necessity. And there looks to be little here.

Coming up next, what military tribunals might really be for.

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