Fwd: [CSL]: Bush to Subject Terrorism Suspects to Military Trials

Phil Graham phil.graham at MAILBOX.UQ.EDU.AU
Wed Nov 14 12:32:30 UTC 2001

This is really disturbing.

From: John Armitage <john.armitage at UNN.AC.UK>
Subject:      [CSL]: Bush to Subject Terrorism Suspects to Military Trials

[And now, after the UK published its Anti-terrorism bill today, the
USversion.  John.]
November 14, 2001


Bush to Subject Terrorism Suspects to Military Trials


WASHINGTON, Nov. 13 - President Bush signed an order today allowing special
military tribunals to try foreigners charged with terrorism. A senior
administration official said that any such trials would "not necessarily"
be public and that the American tribunals might
operate in Pakistan and Afghanistan.

At the same time, the Justice Department has asked law enforcement
authorities across the country to pick up and question 5,000 men, most from
Middle Eastern countries, who entered the country legally in the last two

Both actions are part of a sweeping government effort to expand the
investigation into Al Qaeda's network and clear the way for the more
aggressive prosecution of anyone charged with terrorism.

Mr. Bush signed the order allowing for the military tribunals shortly
before leaving this afternoon for his ranch in Crawford, Tex. White House
officials said the order did not create a military tribunal or a list of
terrorists to be tried. Instead, they said, it was an "option" that the
president would have should Osama bin Laden or his associates in Al Qaeda
be captured. If the tribunals were created, it would be the first time
since World War II that such an approach was used, officials said.

Under the order, the president himself is to determine who is an accused
terrorist and therefore subject to trial by the tribunal. The order states
that the president may "determine from time to time in writing that there
is reason to believe" that an individual is a member of Al Qaeda, has
engaged in acts of international terrorism or has "knowingly harbored" a

In order to make such a finding, the president needs information, and
obtaining information about Al Qaeda and the Sept. 11 terrorist acts is the
goal of the Justice Department's effort to find and interview the 5,000
men, department officials said.

The people being sought are not believed to be terrorism suspects, and they
will not be placed under arrest, the officials said. The  interviews are
intended to be voluntary.

Nonetheless, officials at the American Civil Liberties Union condemned the
Justice Department effort, as well as the executive order allowing military

Steven Shapiro, the national legal director of the A.C.L.U., called the
effort to interview the 5,000 men a "dragnet approach that is likely to
magnify concerns of racial and ethnic profiling."

Laura W. Murphy, the director of the A.C.L.U. Washington National Office,
described the order regarding tribunals as "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."

White House officials said the tribunals were necessary to protect
potential American jurors from the danger of passing judgment on accused
terrorists. They also said the tribunals would prevent the disclosure of
government intelligence methods, which normally
would be public in civilian courts.

"We have looked at this war very unconventionally," said Dan Bartlett, the
White House communications director, "and the conventional way of bringing
people to justice doesn't apply to these times."

The idea of using tribunals has been suggested by some lawyers outside the
government as well.

"It's the most pragmatic way and it's the most legally correct way to
adjudicate terrorist war crimes," said Spencer J. Crona, a Denver probate
lawyer and the co-author of a 1996 article in the Oklahoma City University
Law Journal arguing the merits of military tribunals to try terrorists.

Mr. Crona and his co-author, Neal A. Richardson, a deputy district attorney
in Denver, have continued to promote the idea, most recently in an opinion
article in September in The Los Angeles Times. Mr. Crona added that
terrorists are not "mere criminals" but enemy agents
engaged in war crimes against Americans.

But experts in military law said the tribunals would severely limit the
rights of any defendant even beyond those in military trials. The
tribunals, they said, did not provide for proof of guilt beyond a
reasonable doubt and would not require strict rules of evidence like those
in military and civilian courts.

"The accused in such a court would have dramatically fewer rights than a
person would in a court- martial," said Eugene R. Fidell, the president of
the National Institute of Military Justice.

Mr. Fidell said he expected the order to be challenged in court, adding,
"It establishes a court that departs in important respects from core
aspects of American criminal justice."

Mindy Tucker, the Justice Department spokeswoman, said tribunals would not
"preclude any
Justice Department options" but would be an "additional tool."

"These are obviously extraordinary times and the president needs to have as
many options as possible," Ms. Tucker said.

In signing the military order, a highly unusual act by a president, Mr.
Bush invoked his constitutional authority as commander in chief as well as
the resolution authorizing military force passed by Congress on Sept. 15.
Congress has not passed a formal declaration of war, and
military law experts said one was not necessary for Mr. Bush's order.

White House officials said that there was precedent for the military
tribunals and that they had been approved by the Supreme Court, first in
1801. Those accused of plotting the assassination of Abraham Lincoln were
also tried and convicted by a military court, Bush administration officials

President Franklin D. Roosevelt, White House officials said, had German
saboteurs tried by a military court in World War II; six of them were
executed. The Supreme Court upheld the proceeding, saying that people who
entered the United States to wage war were combatants who could be tried in
a military court.

"What would you do if you caught bin Laden?" one administration official
said tonight. "This is an additional option that is being provided by this

Administration officials said a long, public trial might turn Mr. bin Laden
into a martyr, and could cause further terrorism in his name.

The names of the 5,000 people that the Justice Department wants to
interview were compiled from immigration and State Department records of
people who entered the United States since Jan. 1, 2000, on tourist,
student or business visas. Only men aged 18 to 33
with these visas who are living in the United States are on the list.

The names of the countries whose citizens have been placed on the list were
not made public, but most are Middle Eastern nations thought to have
harbored followers of Mr. bin Laden or to have been used by Al Qaeda as a
staging base for activities in the United

Ms. Tucker, the Justice Department spokeswoman, said she hoped some of the
men would help the government thwart further attacks.

The Council on American-Islamic Relations, an Islamic advocacy group based
in Washington, expressed concern about the plan and said the government
should publish guidelines for these interviews, including the right of
those being interviewed to have legal

"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, the group's executive

On Capitol Hill, the issue of who is entering the country illegally was in
the forefront today, with senators sharply questioning a senior official of
the Immigration and Naturalization Service who acknowledged that
immigration agents were not required to conduct criminal
background checks on immigrants caught crossing the border illegally.

The official, Michael A. Pearson, the executive associate commissioner for
field operations, said agents could use their discretion as to whether such
a person should be detained or let go pending further action.

Mr. Pearson said that 12,338 undocumented immigrants were arrested for
illegal entry along the nation's northern border in the last fiscal year,
and that two-thirds of them agreed to return voluntarily to their home
countries. But he was not able to account for the 4,400 people who did not
choose to return home voluntarily.

Senator Carl Levin, a Michigan Democrat and chairman of the Senate's
permanent subcommittee on investigations, responded, "I find that
disturbing, to put it mildly."

Questioned by Senator Susan Collins, Republican of Maine, Mr. Pearson said
it was true that the I.N.S. had no ability to verify that illegal
immigrants who were let go but told to leave the country actually did leave.

Ms. Collins replied, "If there's no system for checking if the individual
has actually left in the 30 days as promised, isn't it likely they are not

Mr. Pearson said, "That could certainly be the case."

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