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Terror court { November 14 2001 }

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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 needs 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

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 a defendant and impose a sentence, which could include life imprisonment or death. 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

"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.

2001 The Washington Post Company

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