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On Tuesday, President Bush signed an order authorizing
U. S. to conduct military
tribunals for its trials of non-U.S citizens.
In the emergency executive order, which did not need Congress' approval, Bush said the detention and trial
of accused terrorists by a military tribunal was necessary "to protect the United States and its citizens,
and for the effective conduct of military operations and prevention of terrorist attacks."
Under the order, the president determines who is considered a terrorist suspect to be detained by the
Department of Defense. The Department of Defense is now developing policies and procedures governing
new military
commissions, rules of procedure and evidence, as well qualifications for counsel in these proceedings.
Secretary of Defense Donald Rumsfeld would then be responsible for setting up the meeting time and
location of the commission, including whether or not it would meet outside the United States.
The Secretary of Defense would then ensure that suspects are provided with care while under arrest.
Many are disturbed by the Bush administration's decision and believe that the order's focus on
non-U.S.
citizens — including lawful permanent residents — could jeopardize all people's rights.
Critics believe a military commission will only be used to target and condemn suspects the Bush
administration believes are terrorists in a tactic lacking of established due process.
"The use of military tribunals would unnecessarily authorize secret trials without a jury and without
the requirement of a unanimous verdict and would limit a defendant's opportunities to confront the
evidence against him and choose his own lawyer," said Laura Murphy, director of the American Civil
Liberties Union in Washington, D.C.
When asked about whether a tribunal would violate the rights of terrorist suspects, administration
officials said they were not entitled to the same rights as the American citizens they are accused of targeting.
"They don't deserve the same guarantees and safeguards that we use for an American citizen,"
Vice President Dick Cheney said Wednesday. "They will have a fair trial under the procedures of
the military tribunal.
Stressing that a military commission was the most appropriate place to try terrorists captured in Afghanistan or
elsewhere, Attorney General John Ashcroft said, "Foreign terrorists who commit war crimes against the United
States in my judgment are not entitled to and do not deserve the protections of the American Constitution."
Rights as Citizens of the
World
Some experts noted that if the United States' war on terrorism is a global issue,
the tribunal must make sure suspects' fundamental rights at trial are preserved.
"As a citizen of the world, one could assume one ought to be entitled to the same human civil rights
under various international treaties the United States has co-signed on," said Philip Cave of the National
Institute of Military Justice in Washington.
"The government gets to decide first that you're guilty, then
it puts you through the process to affirm that you're guilty," Morton H.
Halperin, senior fellow at the Council on Foreign
Relations told The Associated Press. "I don't think constitutionally you can
make that decision."
A Prosecution’s Court
Unlike a conventional criminal court, a military trial could be held secretly. It is considered a
very prosecution-friendly environment, where prosecutors could present evidence that would not normally be allowed
in regular more legal proceedings. Hearsay evidence and information obtained from wiretapping — not
allowed in some regular court proceedings — could be allowed in military trials.
Suspects retain the right to have a lawyer but not a trial by jury. Experts say it is unclear whether the
defense would have access to all the evidence the prosecutors would present.
Such military commissions are called
in secret, during wartime, to preserve confidential information,
methods, and sources investigators used to gather their evidence
against suspects.
"The discussions normally revolve around the secrecy of the presentation of evidence and possibly even
classified information, and intelligence gathering," Cave said. "It's [defense access to evidence]
has been one ongoing issue in military courts during court-martial proceedings.
Prosecutors are able to present more
evidence and it's easier for them to convict."
Furthermore, critics argue that Bush's order was not justified and that confidential information and methods were
also at stake when the U.S. legal system fairly convicted terrorists in the 1993 World Trade Center bombings
and the 1998 bombing of U.S. embassies in Africa.
"It is very difficult to understand how the administration can justify the use of
such tribunals when the United
States has so successfully tried in our courts non-citizens accused of terrorist acts, organized crime, and others
in situations where the safety of jurors and the disclosure of government intelligence methods were
also at issue,"
said Murphy. "There is already a system established to handle classified information in the course of a
sensitive trial — the Classified Information Procedures Act. For decades, CIPA has adequately balanced
national security and due process concerns. The government has made no showing that CIPA procedures would not be
adequate in these circumstances as well."
An "Informal"
"War"
Military commissions date to the late 17th century. They were last convened in the United States under
orders from President Franklin Roosevelt, who used a tribunal to convict six German
saboteurs who secretly
landed on U.S. shores in 1942. The U.S. Supreme Court upheld the constitutionality of that
proceeding.
Military tribunals have also been used during the Civil War and World War II but
only after the United States has formally declared war. Though administration officials have repeatedly
referred to the United States' campaign in Afghanistan against Osama bin Laden and the Taliban as a "war" on
terrorism, Bush has not made any formal declaration of war.
Some experts are not sure whether in the absence of a formal declaration of war Bush's order for a military
tribunal can be legally defended. The enemy in the war on terrorism is not one particular nation or a uniformed
army, and some believe a formal declaration of war at this point could leave the United States vulnerable to
substantial accusations of American war atrocities.
[Who?]
"There are raging discussions about this as we speak," Cave said. "No one really knows. As of the moment,
we're not in a formal declaration of war. We've heard a lot of people refer to it as a 'war' but there's a big
difference between rhetoric and an actual war. What that [a declaration of war] does is that it has a dramatic
impact on those who are fighting the war. … You may also have to start dealing with Taliban
accusations of Northern Alliance members committing atrocities and executing people right in front of American
soldiers."
FULL
TEXT OF BUSH ORDER (Off-Site)
Should a U.S. Citizen Get a Fair Trial in a U.S. Court: The
Making of John Walker Lindh (Off-Site)
"Perhaps, it would be more
genuine for the administration and current "tribunal" supporters
to avoid their sophist hypocrisy by either sanctioning public trials or just summarily
executing all suspects."
RLC
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