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Military May Try Terrorism Cases-Bush Cites 'Emergency'

Washington Post: President Bush declared an "extraordinary emergency" yesterday that empowers him to order military trials for suspected international terrorists and their collaborators, bypassing the American criminal justice system, its rules of evidence and its constitutional guarantees.
Military May Try Terrorism Cases-Bush Cites 'Emergency'

By George Lardner Jr. and Peter Slevin

Washington Post Staff Writers

Wednesday, November 14, 2001; Page A01

President Bush declared an "extraordinary emergency" yesterday that empowers him to order military trials for suspected international terrorists and their collaborators, bypassing the American criminal justice system, its rules of evidence and its constitutional guarantees.

The presidential directive, signed by Bush as commander in chief, applies to non-U.S. citizens arrested in the United States or abroad. The president himself will decide which defendants will be tried by military tribunals. Defense Secretary Donald H. Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. There will be no judicial review.

By setting up military tribunals, administration officials said, Bush hopes to ensure that terrorists captured in Afghanistan or around the world are brought swiftly and surely to justice. But the order drew immediate criticism from civil libertarians and could alienate European allies who oppose the U.S. death penalty and favor international courts.

Bush said the tribunals are needed because "mass deaths, mass injuries and massive destruction of property" from future terrorism could "place at risk the continuity of the operations of the United States government." It is "not practicable," he said, to require the tribunals to abide by the "principles of law and the rules of evidence" that govern U.S. criminal prosecutions.

Legal scholars said the measure is highly unusual, but not unprecedented.

During World War II, President Franklin D. Roosevelt ordered a secret military trial for eight Nazi saboteurs who had landed in Florida and New York with explosives they intended to use against such targets as factories, bridges, railroads and department stores. The Supreme Court declared the trial constitutional, and six of the eight defendants were executed.

The decision is the latest in a series of legal steps taken by the government to combat terrorism. Last week, the Justice Department authorized the wiretapping of conversations between some jailed suspects and their lawyers. Congress has also passed legislation making it easier to conduct searches, detain and deport suspects, wiretap multiple telephones and obtain electronic records on individuals.

Bush's order promises "a full and fair trial" and access to lawyers, but there is no provision for an appeal to U.S. civil courts or international tribunals. Only Bush or the secretary of defense, if the president so chooses, will have the authority to overturn a decision.

White House communications director Dan Bartlett said the military courts would reduce the danger to jurors and other court personnel, protect confidential sources needed to build investigations and help uncover plans for future attacks. He cited national security interests and the need for swift justice as reasons for the presidential order.

Laura Murphy, director of the Washington office of the American Civil Liberties Union, said Bush failed to explain why the criminal justice system could not deliver "the timely prosecution" of terrorism suspects.

"Absent such a compelling justification," she said, "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."

For weeks, White House and Justice Department officials have debated how to try any accused terrorists who may be apprehended in the hunt for members of Osama bin Laden's al Qaeda organization, which the U.S. government holds responsible for the Sept. 11 attacks in New York and Washington.

The issue took on urgency this week as the U.S.-backed Northern Alliance advanced rapidly across a broad swath of Afghanistan, pushing back the Taliban militia that has harbored bin Laden and sweeping into the capital, Kabul.

"Everyone's struggling with what happens next," a U.S. official involved in the discussions had said before Bush signed the order yesterday afternoon. "It's likely we'll end up with someone in custody and not know what to do with him."

The order says defendants could include past or present members of al Qaeda or anyone involved in acts of international terrorism intended to have "adverse effects on the United States, its citizens, national security or economy." It also targets anyone who has "knowingly harbored" such terrorists.

The tribunals could meet in this country or abroad. Bush's order specifies that a two-thirds vote is needed to convict and sentence a defendant, but it does not say how many judges are to sit on a tribunal. Nor does it define their qualifications.

The step Bush took yesterday has been urged on him for weeks by conservative lawyers from past administrations and other experts who cited precedents dating back to the Civil War. One of them, George Terwilliger, a former high-ranking Justice Department official, said a military tribunal would be appropriate for anyone who commits an act of war against the United States.

If U.S. forces should capture a Taliban or al Qaeda leader, said Terwilliger, a criminal trial in a U.S. court would not be appropriate. "The notion that we would bring him back for a trial cloaked with a full panoply of constitutional rights bring him to the dock in New York to me is absurd."

Some legal scholars such as John Norton Moore, director of the Center for National Security Law, had favored the creation of an international tribunal by the United Nations Security Council to deal with the Sept. 11 attacks and their aftermath, but others said such tribunals typically drag on for years and lose the impact an international tribunal should have.

"This was an armed attack on the United States, not just a mass murder or a serial killing," said Philip A. Lacovara, a former deputy solicitor general. "It is appropriate to deal with it as a crime against humanity." He also noted that international tribunals created by the United Nations do not authorize the death penalty.

Staff writer Susan Schmidt contributed to this report.




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