Published on Tuesday, November 13, 2001 by the Associated Press
Bush Orders Terrorist Trials by Military Tribunal
by Ron Fournier
WASHINGTON President Bush approved the use of a special military tribunal Tuesday that could put accused terrorists on trial faster and in greater secrecy than an ordinary criminal court. The United States has not convened such a tribunal since World War II.
Bush signed an order establishing the government's right to use such a court but preserving the option of a conventional trial.
"This is a new tool to use against terrorism," White House Counsel Albert Gonzales said.
Bush's order does not require approval from Congress.
Detention and trial of accused terrorists by a military tribunal is necessary "to protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks," the five-page order said.
The order sets out many of the rules for any military tribunal and the rights of anyone held accountable there. A senior Justice Department official, speaking on condition of anonymity, said only noncitizens would be tried before the military commission.
"These are extraordinary times and the president wants to have as many options as possible," said Justice Department spokeswoman Mindy Tucker. "This option does not preclude any Department of Justice options that might also be available."
In either a military or a civilian court, any suspect would retain rights to a lawyer and to a trial by jury, the administration said.
Anyone ever held for trial under the order would certainly challenge its legitimacy, said Eugene Fidell, president of the National Institute of Military Justice in Washington, and a lawyer who regularly practices before military courts.
"There's no recent history in this country of this. It's an extraordinary step for the president to have taken," Fidell said, adding that it moves the country closer to a genuine war footing.
There is precedent for such panels.
President Franklin Roosevelt had suspected World War II saboteurs secretly tried by military commission, and six were executed. The Supreme Court upheld the proceeding. An enemy who sneaked onto U.S. soil "for the purposes of waging war by destruction of life or property" was a combatant who could be tried in a military court, the Supreme Court ruled.
Military tribunals were also used during and after the Civil War.
Gonzales, the president's top lawyer, said a military commission could have several advantages over a civilian court, including secrecy.
"This is a global war. To have successful prosecutions, we might have to give up sources and methods," about the way the investigation was conducted if the trial was held in a civilian court, Gonzales said. "We don't want to have to do that."
A military trial could also be held overseas, and Gonzales said there may be times when prosecutors feel a trial in the United States would be unsafe.
From the perspective of the U.S. commander in chief, "the easy way to go is a military commission" because "you have unfettered discretion" and "the most significant aspects of judicial review are curtailed," said former military prosecutor A. Jeff Ifrah.
The problem with federal district courts or courts-martial from the point of view of the chief executive is that there is appellate review plus stringent federal rules of evidence, said Ifrah.
Recent terrorism trials have taken place in U.S. criminal courts, where the rules require the government to reveal its evidence either in open court or in filings it must fight to keep secret.
Michael Scardaville, policy analyst for homeland defense at the conservative Heritage Foundation, said there are legitimate reasons for holding the trials in private.
"This isn't Judge Judy, two people fighting over who gets the car after a divorce. It's about very classified elements of America's national security.
"They can say, 'Not only are we not going to let the press in, it's going to be in the middle of a military base."
Michael Ratner, an international law and war crimes expert at Columbia University, said the government would lose all credibility with the Muslim world if it tries terrorists by a military commission.
"I am flabbergasted," Ratner said. "Military courts don't have the same kind of protections, you don't get the same rights as you do in a federal court. The judges aren't appointed for life, there is no civilian jury."
The order is the latest effort by the administration to toughen the nation's laws against terrorists.
After the Sept. 11 attacks, the administration pushed through Congress an anti-terrorism bill that Bush said was vital but civil liberties groups said went too far, violating Americans' constitutional rights.
It expands the FBI's wiretapping and electronic surveillance authority and imposes stronger penalties for harboring or financing terrorists. The measure also increases the number of crimes considered terrorist acts and toughens the punishments for committing them.
Under the new order, Bush could establish a military commission in the future by asking the secretary of defense to establish the rules for one.
"This does not identify by name who should be exposed to military justice," Gonzales said. "It just provides the framework that, should the president have findings in the future, he could" order Secretary of Defense Donald H. Rumsfeld to establish such a commission.
© 2001 The Associated Press