Bush Call For Military Courts Unprecedented

by Abid Aslam

President George W. Bush invoked emergency powers yesterday to authorize military courts to try non-U.S. citizens. His written order promised "a full and fair trial" for every suspect.

He stated, however, that "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

In deciding to issue the order, the administration, which opposes the formation of an International Criminal Court for fear it would impinge upon U.S. forces overseas, also rejected suggestions that an international tribunal be set up specifically to handle cases stemming from the Sept. 11 attacks on New York and the Pentagon.

Such bodies have proven time-consuming and would not provide desired leeway to perform executions, officials here have argued.

Under the Bush plan, suspects could be seized, detained, and tried at any "appropriate" location in the United States or abroad.

"Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur," Bush stated, "I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency."

Others were not so sure.

Laura Murphy, Washington office director of the American Civil Liberties Union (ACLU), said Bush failed to explain why ordinary courts could not do the job and thus failed to establish the military tribunals' constitutional legitimacy.

The ACLU, in a statement Nov. 14, said the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh demonstrated that "the government has managed to protect the safety and identity of jurors while achieving convictions in terrorism cases."

Government secrets also can be protected under the existing Classified Information Procedures Act (CIPA), the organization added. "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," it said.

"To our knowledge, the move to establish a military tribunal when Congress has not declared war is unprecedented," the ACLU said, adding that it would be "hypocritical of the United States to impose such a tribunal when we have repeatedly protested the use of such courts against U.S. citizens abroad."

The order also followed a Justice Department announcement that it would no longer release updated figures for the number of people detained as part of a government counter-terrorism sweep since the Sep. 11 attacks. Officials said last week there were 1,183 such detainees -- mostly foreigners who previously would not have warranted detention because they are suspected of immigration violations or petty offenses.

Rights groups have accused federal authorities of holding post-Sept. 11 detainees under secretive conditions in violation of due process standards. Most are held at undisclosed locations, few are considered to be of serious interest to investigators and, as of Nov. 12, none of these suspects had been charged. Many reportedly have been denied access to lawyers or have been subjected to secret court hearings.

Under the terms of Bush's order, a special military commission could try accused terrorists in greater secrecy and with greater speed than could a conventional court. Special rules of evidence could allow the government to introduce material or statements that would have been impermissible in a criminal trial, legal experts said. Trial lawyers further ventured that military juries would be more willing than civilian ones to hand down death sentences.

Thus, convicted terrorists could be executed shortly after trial, with few or none of the delays -- nor the hope of reprieve -- that stem from appeals in the criminal courts.

Despite their more stringent requirements and expansive safeguards, criminal courts routinely hand down wrongful death sentences. Illinois Gov. George Ryan last year declared a moratorium on executions in his state after 13 death row inmates' convictions were overturned because, it turned out, they were innocent.

Sixty-eight percent of all state and federal capital convictions and sentences handed down between 1973 and 1995 were reversed because of serious errors during trial or sentencing, according to the ACLU.

Bush's order does not actually establish a military commission. Rather, it authorizes Defense Secretary Donald Rumsfeld to appoint a commission to try individuals referred to him by Bush. No one has yet been singled out.

The order does not lay down comprehensive rules for hearings but states that it would take agreement among two-thirds of a majority of commission members to hand down a conviction. Sentences, including life imprisonment and death, could be passed by two-thirds of voting commission members so long as a majority of members participated in the vote. Criminal convictions require unanimous verdicts.

Outcomes would be subject to review and final decision by Rumsfeld or Bush only, and only in cases where Bush deemed this necessary. Commission proceedings and personnel would be immune to prosecution or litigation "by any party."

Under U.S. law, the military can only try civilians during times of war. Bush, however, invoked Congress's Sep. 14 "Authorization for Use of Military Force Resolution" in imposing his order, implying this was tantamount to a declaration of war.

The resolution, passed by all but one legislator, empowered Bush to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the Sep. 11 attacks.

It did not define the last term, leaving it to the president's discretion to decide what would constitute "aid." Bush's latest order is similarly vague, allowing for prosecution of people suspected of aiding or conspiring to aid terrorists.