Bush to Allow Terror Trials by Military

By JOSH MEYER,DAVID G. SAVAGE and ERIC LICHTBLAU, Times Staff Writers

The Los Angeles Times, November 14, 2001

WASHINGTON -- Stepping up the legal war against

terrorism, President Bush issued a broadly worded

order late Tuesday that allows the use of special

military courts to try suspected terrorists, whether they

are picked up in Afghanistan, other countries or in the

United States.

People designated as terrorists by the president shall

be "placed under the control of the secretary of

Defense," the order says, and he will have "exclusive

jurisdiction" over them. They may not seek the aid of

"any court of the United States," nor of "any court of

any foreign nation or any international tribunal."

"These are obviously extraordinary times, and the

president has to have as many options as possible,"

Justice Department spokeswoman Mindy Tucker said.

The military order does not preclude the Justice

Department from bringing traditional prosecutions

against suspected terrorists, but it gives the

administration the power to bring military prosecutions

against noncitizens--both inside and outside the United

States--with suspected terrorist ties, she said.

Also Tuesday, Atty. Gen. John Ashcroft directed law

enforcement authorities to interview more than 5,000

foreign men living in the United States to determine

whether they have information that might prevent

terrorist attacks.

The list includes men ages 18 to 33 who entered the

United States on non-immigrant visas since Jan. 1,

2000, from specific countries. Most of the men hold

passports from Middle Eastern nations, the Justice

Department said. Ashcroft said that all interviews

would be voluntary and that interview subjects would

not be detained.

The prospect of military tribunals in the United States

alarmed some advocates of civil liberties and

immigrant rights.

"First, the president must justify why the current system

does not allow for the timely prosecution of those

accused of terrorist activities," said Laura W. Murphy,

director of the American Civil Liberties Union's

Washington office. "Absent such a compelling

justification, today's order is deeply disturbing and further evidence that the

administration is totally unwilling to abide by the checks and balances that

are so central to our democracy."

The two orders were the latest in a series of actions the Bush administration

has taken against the threat of terrorism. Ashcroft recently expanded the

Justice Department's authority to monitor some jailhouse conversations

between inmates and their lawyers, and he has broadened government

power to deny visas and to deport people deemed supportive of terrorist

activities.

White House spokeswoman Anne Womack said Bush's order "gives the

president an additional tool to use as he sees fit to fight the war on terrorism

and bring foreign terrorists to justice."

"This is not unprecedented," Womack added. "This gives the president the

option of pursuing this if necessary. It does not establish the military

commission. It just establishes the framework under which one could be

established."

Bush's order, issued in his role as commander in chief of the military,

declares an "extraordinary emergency" and says that individuals who

commit "violations of the laws of war" should be tried by a military

tribunal.

But it goes on to define broadly the "individuals subject to this order,"

saying that they include people who have "aided or abetted" terrorists or

aimed "to cause injury to the United States, its citizens, national security,

foreign policy or economy."

"It is not practicable," the order says, to apply "the principles of law and

the rules of evidence generally recognized in the trial of criminal cases" in

the United States to these military trials.

The order does not apply to U.S. citizens, but it could apply to foreigners

detained in the United States on suspicion of committing terrorist acts or

even "aiding and abetting" terrorists, she said.

It is unclear who precisely is the target of the proposed military tribunals.

With the Taliban on the run in Afghanistan, U.S. officials may be laying the

groundwork for capturing and trying Osama bin Laden and the leaders of his

Al Qaeda network. If U.S. troops take Bin Laden alive, Tuesday's order

allows the military to try him in a secret, closed proceeding abroad.

But the military tribunals could be used more widely, including for people

picked up in the United States. Both White House and Justice Department

officials said the administration intends to give itself the option of trying

suspected terrorists in the secret military courts here.

Claire Buchan, a White House spokeswoman, stressed that the order

applies only to "noncitizens." And, in a military or civilian court or not, the

suspected terrorists would get "a full and fair trial," she said.

But the administration may run into trouble in the federal courts and the

court of public opinion.

The U.S. Constitution applies to "persons," not just citizens, and the

Supreme Court has said in the past that the government may not close the

courthouse doors to people. Anyone can file a writ of habeas corpus asking

for a judge to take up their case.

In the past, however, courts have drawn a distinction between military

combatants and people who are picked up for crimes such as spying and

sabotage.

While the combatants have been tried before military tribunals, the United

States has tried spies and foreign agents in its criminal courts.

Philip Cave, a former Navy defense attorney and prosecutor who is now a

board member of the nonprofit National Institute of Military Justice, said

Bush's order "is certainly without precedent since World War II," when the

U.S. used military tribunals to try Nazi saboteurs and Japanese.

One constitutional scholar said Bush's order is fraught with potential

problems.

"Based on a Supreme Court precedent from World War II, there is a strong

argument that this is constitutional," said Erwin Chemerinsky, a

constitutional law professor at USC. "But I am very troubled by it because

it allows the government to try people without having to follow the

Constitution's protections."

Chemerinsky, who was giving a speech to prosecutors Tuesday night on

"Civil Liberties in the Fight Against Terrorism," said Bush's directive could

essentially do away with public trials for some suspected terrorists and

trials by juries of their peers, two of the most fundamental rights under the

Constitution.

Cave noted that military tribunals give the government a much greater

chance of conviction than traditional courts and allow military prosecutors

to shield intelligence information that they might be forced to disclose in

civilian courts.

Jonathan Turley, a constitutional law professor at George Washington

University who has defended military cases, called the order "extremely

troubling" and said it "certainly has the appearance of putting a thumb on the

scale of justice to guarantee a better outcome."

The order "is likely to be viewed with great suspicion, not just abroad but

in the United States," Turley said. "To create an ad hoc tribunal undermines

the legitimacy of the proceedings."

John Dean, former counsel to President Nixon, wrote recently that he

supports the idea of using the military tribunals against terrorists but said it

would require an act of Congress.

"Congress should pass an act--in part because terrorism is very different

from other crime," Dean wrote. Citing the terrorist acts of Sept. 11, he

added: "It would trivialize what was done to treat it as ordinary crime."

Dean added that jurors' names would be publicized, placing them at risk,

and terrorists could walk free based on legal technicalities such as failure

to read them their Miranda rights.

"Such tribunals are more efficient, less costly and more likely to provide

swift and sure justice," Dean wrote.

A Bush administration official said there were several reasons why Bush

decided to issue the order.

The official, who asked not to be identified, said the president determined

that bringing an accused terrorist to trial in the United States "could put a lot

of lives at risk" and pose major security concerns because the location of

the trial would be made public.

Womack said Defense Secretary Donald H. Rumsfeld will draw up the

particulars of such a commission and make the decisions on details such as

who would represent those charged in such a military tribunal and where

the trials would be held.

The Defense Department had no comment Tuesday night.

In 1942, when Nazi Germany landed eight saboteurs on the East Coast, they

were treated as military combatants. They were tried in a secret military

court in Washington, were convicted and most were hanged.

The Supreme Court refused their pleas to intervene.

This is often cited as the strongest precedent for allowing secret, military

tribunals. But it was also a special case, because the Germans were at war

with the United States and had landed military agents on U.S. shores.

Meanwhile, the Justice Department began preparing to have authorities

interview more than 5,000 foreign men.

Ashcroft asked the 94 U.S. attorneys offices to use local anti-terrorism task

forces to ensure that everyone on the list was interviewed.

He added: "We recognize that this will be a time-consuming and

complicated task, but it is critical that we expand our knowledge of terrorist

networks operating within the United States."

The Justice Department compiled the names from lists furnished by

immigration and State Department records of foreigners who entered the

country on tourist, student and business visas.

Tucker said those on the list were chosen not because of their country of

origin but because of where they were before they entered the United States.

Justice Department officials described the countries as places "from which

a terrorist might be likely to plot possible additional attacks and then enter

the U.S. . . . based on intelligence information about past Al Qaeda

operations."

The men on the list "are not being questioned, they are being interviewed,"

Tucker said. "This is nothing more than questioning the neighbors on the

street of a person who was robbed. These are people who are visiting our

country, and we are expecting that they would cooperate with our law

enforcement efforts just as we would expect an American citizen to

cooperate."

Arab American and civil liberties groups denounced the plan as racial and

religious profiling.

"This type of sweeping investigation carries with it the potential to create

the impression that interviewees are being singled out because of their race,

ethnicity or religion," said Nihad Awad, executive director of the Council

on American-Islamic Relations.

Lucas Guttentag, a lawyer with the American Civil Liberties Union in New

York, said such an effort, if not undertaken with great sensitivity, "could

undermine collaboration and confidence in the very communities that the

government is seeking information from."

A veteran Washington defense lawyer who supports Bush had a different

perspective. "Keep in mind this is wartime," said the attorney, who asked

that his name not be used. "Things like this are necessary in times of war."