Bush Takes Heat For Military Tribunal Plans

by Jim Lobe

Setting up such courts will make it far more difficult for the United States to criticize other countries' efforts to short circuit due process, argue rights groups Amnesty International and Human Rights Watch (HRW). Close U.S. allies, meanwhile, suggest they will be more reluctant to extradite suspects to Washington to stand trial under such conditions.

Lawmakers from the left and the right of the U.S. political spectrum express growing concern about the idea, particularly in the context of other actions taken by the Justice Department since the Sep. 11 terrorist attacks on the United States to curb the rights of terrorist suspects.

"We oppose the creation of military tribunals, which would permit secret arrests, secret charges using secret evidence, secret prosecutions, secret witnesses, secret trials, secret convictions, secret sentencing and even secret executions," wrote Democrat Dennis Kucinich and 38 other members of the House of Representatives, including right-wing Republican Bob Barr, in a letter to Attorney-General John Ashcroft last week.

The administration, however, shows no signs of retreating on either the idea of military tribunals or any of the other steps it has taken to expand its prosecutorial and detention powers.

"The country faces a truly extraordinary threat," said Assistant Attorney-General Michael Chertoff, an Ashcroft aide who testified before the Senate Judiciary Committee here yesterday in the first of a series of hearings on "Preserving Freedoms While Defending Against Terrorism."

Chertoff, who insisted that the administration's actions were within constitutional bounds, suggested that military courts, if they were constituted, were likely to apply to only a few cases. He admitted, however, that Pentagon lawyers were only beginning to flesh out the circumstances and procedures under which they would operate.

Citing extraordinary circumstances and his constitutional role as commander in chief, Bush issued a presidential order Nov. 13 that authorized military tribunals to try foreigners charged with terrorism.

Under his decree, suspected terrorists would be tried before a commission made up primarily of military officers in secret proceedings in which the normal criminal rules of evidence and burden of proof would not necessarily apply. Defendants would have no right to appeal their convictions or sentences to any judicial body.

In defending the decree, administration officials pointed to precedents over U.S. history, the most recent of which took place during World War II when a tribunal was convened against eight German saboteurs captured in the United States. Secrecy was justified, officials said, not only by the general threat faced by the United States from al-Qaeda but specifically for the protection of potential juries.

Critics see the plan as a major blow to both civil liberties in the United States and Washington's claims to be a leader in propagating human rights and due process around the world.

"The next time the United States criticizes a foreign dictator for trying a dissident -- or even an American citizen -- before a military court, this is going to be thrown back in America's face," said HRW Executive Director Kenneth Roth. "If this order is implemented, it will do permanent damage to America's ability to champion human rights around the world."

In a report issued on the eve of yesterday's Senate hearings, HRW cited 11 countries the State Department has criticised for using military tribunals or other courts in which traditional due process rights are circumscribed. The list included Burma (also known as Myanmar), China, Nigeria, Peru, Sudan, and Turkey.

"Even if its most egregious failings are corrected in subsequent regulations, the text of (Bush's) order may become a model for governments seeking a legal cloak for political repression," the HRW report warned.

At a more practical level, the establishment of military tribunals appears to threaten the co-operation of other countries in Washington's anti-terrorist efforts.

Last week, Spanish officials said that they would be unlikely to extradite eight men charged by a Spanish judge with complicity in the Sep. 11 attacks unless Washington agreed to try the suspects in civilian court. Legal experts here and in Europe said other members of the European Union (EU) were almost certain to take a similar position.

Coincidentally, Bush hosted Spanish Prime Minister Jose Maria Aznar who was non-committal on the issue, while a White House spokesman told reporters that Washington has not yet requested the men's extradition, "so it's not a relevant issue."

Domestic rights groups also have reacted strongly to the order. The American Civil Liberties Union (ACLU), which testified before the Judiciary Committee after Chertoff, noted that the proposed tribunals would not conform even to the basic due-process standards of U.S. military courts.

The group also pointed out that, unlike the World War II case and previous military tribunals established in wartime, this time Congress has not given the president authority to take such a step by formally declaring war.

"The all-important balance of powers is becoming dangerously tilted, threatening the underpinnings of our democracy." declared Laura Murphy, director of the ACLU's Washington office.

Lawmakers from both major U.S. parties voiced similar concerns.

"Since the Constitution empowers the Congress to establish courts with exclusive jurisdiction over military offenses, some consultation with (Congressional) leadership before the promulgation of the order would have been appropriate," said Republican Senator Arlen Specter. "Even in war, Congress and the courts have critical roles in establishing the appropriate balance between national security and civil rights."

In response, Chertoff tried to assure senators the Pentagon was likely to take their views into consideration as it drew up plans for the tribunals. He also insisted that Bush's order set out minimum due-process requirements for the tribunals and that Pentagon lawyers were likely to insist on higher standards.