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Date Posted: 16:24:06 12/03/01 Mon
November 15, 2001
ESSAY
Seizing Dictatorial Power
By WILLIAM SAFIRE
http://www.nytimes.com/2001/11/15/opinion/15SAFI.html?todaysheadlines
WASHINGTON -- Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.
In his infamous emergency order, Bush admits to dismissing "the principles of law and the rules of evidence" that undergird America's system of justice. He seizes the power to circumvent the courts and set up his own drumhead tribunals — panels of officers who will sit in judgment of non-citizens who the president need only claim "reason to believe" are members of terrorist organizations.
Not content with his previous decision to permit police to eavesdrop on a suspect's conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial.
His kangaroo court can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.
No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."
On what legal meat does this our Caesar feed? One precedent the White House cites is a military court after Lincoln's assassination. (During the Civil War, Lincoln suspended habeas corpus; does our war on terror require illegal imprisonment next?) Another is a military court's hanging, approved by the Supreme Court, of German saboteurs landed by submarine in World War II.
Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on? Have you forgotten our 5,000 civilian dead? In an emergency like this, aren't extraordinary security measures needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later.
Those are the arguments of the phony-tough. At a time when even liberals are debating the ethics of torture of suspects — weighing the distaste for barbarism against the need to save innocent lives — it's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values.
To meet a terrorist emergency, of course some rules should be stretched and new laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign students, if short-term, is borderline tolerable. Congress's new law permitting warranted roving wiretaps is understandable.
But let's get to the target that this blunderbuss order is intended to hit. Here's the big worry in Washington now: What do we do if Osama bin Laden gives himself up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give the terrorist a global propaganda platform. Worse, it would be likely to result in widespread hostage-taking by his followers to protect him from the punishment he deserves.
The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.
But what if he broadcasts his intent to surrender, and walks toward us under a white flag? It is not in our tradition to shoot prisoners. Rather, President Bush should now set forth a policy of "universal surrender": all of Al Qaeda or none. Selective surrender of one or a dozen leaders — which would leave cells in Afghanistan and elsewhere free to fight on — is unacceptable. We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.
If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his — and Americans would have no need of kangaroo courts to betray our principles of justice.
~~~~~~~~~~~~~~~~~~~
November 15, 2001
THE PRESIDENTIAL ORDER
Senior Administration Officials Defend Military Tribunals for Terrorist Suspects
By ELISABETH BUMILLER and STEVEN LEE MYERS
http://www.nytimes.com/2001/11/15/politics/15TRIB.html?todaysheadlines
WASHINGTON, Nov. 14 — Top administration officials today defended a presidential order allowing military tribunals to try foreigners charged with terrorism as the Pentagon prepared for the potential transfer of immigrants detained by the Justice Department into military custody.
A senior administration official said that it was possible that immigrants held in the United States by the Justice Department in connection with the Sept. 11 attacks would be tried by military tribunal. Those trials could take place outside the United States or even on ships, the official said.
The order, signed by President Bush on Tuesday, gives the government sweeping powers to secretly and aggressively prosecute suspected foreign terrorists both here and abroad.
Justice Department officials have repeatedly refused to disclose the identities of those immigrants held or the charges against them. Justice officials said late last month that the total number of people detained — including many who have since been released — had surpassed 1,000, but this month officials said that they would no longer release a running tally.
"I had no idea they were going to try to use it for domestically detained people," said Kevin Ernst, a Detroit lawyer representing Farouk Ali-Hamoud, who was arrested for fraudulent immigration documents and held for 25 days in the Wayne County Jail before his case was dismissed last month. "It scares the hell out of me, I'll tell you that."
Vice President Dick Cheney defended Mr. Bush's order today, saying that terrorists were not lawful combatants and did not deserve the safeguards of traditional American jurisprudence.
"The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans — men, women and children — is not a lawful combatant," Mr. Cheney said.
"They don't deserve to be treated as a prisoner of war," he added. "They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process."
While the vice president assured his audience that the terrorist suspects would have "a fair trial," he suggested that they did not deserve one with the same protections afforded American citizens. A military tribunal, he said, "guarantees that we'll have the kind of treatment of these individuals that we believe they deserve."
He spoke favorably of World War II saboteurs being "executed in relatively rapid order" under military tribunals set up by President Franklin D. Roosevelt. And he cited an earlier precedent, noting, "This is the way we dealt with the people who assassinated Abraham Lincoln and tried to assassinate part of the Cabinet back in 1865." Mr. Cheney, who was responding to a question after a speech at the United States Chamber of Commerce, was the most senior White House official to explain the rationale behind the president's order. Mr. Bush, who was at his ranch in Crawford, Tex., with President Vladimir Putin of Russia, has not spoken publicly about it.
The order continued to prompt an outcry from civil libertarians, who noted that military tribunals have not been used in this country since World War II. Laura W. Murphy, the director of the American Civil Liberties Union's National Office, said that the organization was "deeply disturbed" by the order and called on Congress to exercise oversight powers before the "Bill of Rights in America is distorted beyond recognition."
Bush administration officials said today that they first considered the idea of military tribunals about a week after the Sept. 11 attacks. Officials said that a debate then ensued between the Pentagon and Justice Department over who should determine who is a suspected terrorist and therefore subject to trial by tribunal.
Finally, officials said, it was Mr. Bush who insisted that he, not Secretary of Defense Donald H. Rumsfeld or Attorney General John Ashcroft, be given that power.
Administration officials said that the Pentagon and Justice Department were preparing today for the possibility of moving some detainees to military custody, examining such details as where the detainees might be held and how many judges would sit on any tribunal.
"They are researching, preparing and looking at the administrative procedures that would have to be followed to take into custody a suspected terrorist held by justice," an administration official said.
The idea of military tribunals came to the attention of the White House via William P. Barr, a former attorney general in the first Bush administration, who first conceived of them as a way to try the two men charged with blowing up a Pan Am jetliner over Lockerbie, Scotland, in 1988.
In the preparations for that trial, Mr. Barr was the chief of the Justice Department's office of legal counsel. In an odd twist, that office also happened to occupy the same suite where the World War II saboteurs were secretly tried under Roosevelt — memorialized today by a plaque on the wall.
"It's part of the lore of that office," Mr. Barr said.
Scotland, which does not have the death penalty, was not interested in joining with the United States in military tribunals, Mr. Barr said, so the idea was dropped. But shortly after the Sept. 11 attacks, Mr. Barr contacted senior officials at both the White House and the Justice Department, suggesting they might take a look at the old files.
"All I did was remind them about it," Mr. Barr said. "The idea sells itself.."
This time people were very interested, particularly as they faced the prospect of what to do should Osama bin Laden or his associates in Al Qaeda be captured. Administration officials have said they did not want a long, public American trial of Mr. bin Laden that could turn him into a martyr or cause further terrorism in his name.
In the weeks after Sept. 11, officials at the Pentagon and Justice and State Departments worked on a draft of the president's order. Late last week, officials said, the draft began circulating. On Tuesday, the president signed it.
Experts in military law say the tribunals would severely limit the rights of a defendant even beyond those in military trials, and said that the tribunals did not provide for proof of guilt beyond a reasonable doubt.
But White House officials said the tribunals were necessary to protect potential American jurors from the danger of passing judgment on terrorists. They also said the tribunals would prevent the disclosure of government intelligence methods, which normally would be public in civilian courts.
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