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Military tribunals: Swift judgments in dire times Civil libertarians are wary of Bush's wartime model for terrorist trials, but the system, last used by FDR, is deeply rooted in U.S. history

By Joan Biskupic and Richard Willing
USA TODAY

WASHINGTON -- President Bush's order allowing military tribunals to try accused terrorists sets the stage for something not seen since World War II: an emergency legal system designed to bring swift judgment, using rules that make convictions easier but deeply worry civil libertarians.

With the Taliban on the run in Afghanistan and investigators here continuing to seek possible associates of the Sept. 11 hijackers, Bush's order is a signal that the next battlefield in the war on terrorism will be the courtroom.

The Bush administration defended its extraordinary order Wednesday, saying that the shadowy nature of al-Qa'eda terrorists, who dress as civilians and attack a nation from within, demands a special system of justice that recognizes the needs of national security and the unusual threats that terrorists pose. For example, military tribunals can use secretly collected wiretap evidence and other confidential information not admitted in ordinary trials; secret testimony from informants, and hearsay evidence.

The foreign terrorists who could be subjected to such tribunals ''don't deserve to be treated as prisoners of war,'' Vice President Cheney said. ''They don't deserve the same guarantees and safeguards we use for an American citizen.''

It was unclear Wednesday when, or even if, the Bush administration plans to empanel a military court, or specifically whom it might try. Military panels could be created by Defense Secretary Donald Rumsfeld to try suspected terrorists wherever they are captured, whether in Afghanistan, the United States or elsewhere.

They also could be used to try suspects already in custody, including at least two Muslim extremists who authorities say had contact with the 19 hijackers in the months leading up to the attacks on the World Trade Center and the Pentagon.

Any tribunal could face a legal challenge from defendants demanding a jury trial in a public court. But legal precedent is on Bush's side.

White House counsel Alberto Gonzales says that Bush's decision to permit the panels was driven by two considerations:

* The need to conduct trials where terrorists are captured, especially when returning them to the United States could pose security risks.

* The need for special trial rules to allow confidential information gathered by U.S. intelligence to be used against terrorists without having the information revealed in open court.

Because they permit secret testimony, military tribunals or commissions, as they also are called, allow prosecutors to withhold sensitive information that they would be required to disclose during an ordinary criminal trial.

Muslim extremists charged with trying to blow up the World Trade Center in 1993 were tried in federal criminal court. Trial records included structural details of the twin towers, which prosecutors say may have been used by the Sept. 11 hijackers to determine the type of jet needed to knock down the twin towers.

''The best evidence against a person might be classified, and to get a conviction we might need to disclose it,'' Gonzales says.

Military tribunals are rarely used but are deeply rooted in U.S. history. They have withstood federal court challenges in the 19th and 20th centuries, and were approved unanimously by the Supreme Court when they last were used during World War II.

Besides protecting U.S. intelligence networks, the military tribunals' advantages include speed. Six German saboteurs who sneaked into the USA during World War II were caught, tried and executed, with time out for a Supreme Court appeal, during a 7-week period in 1942.

Another advantage, as Cheney indicated, is that trying terrorists in military court sends a clear signal that they are international outlaws, not entitled to even the rudimentary rights afforded ordinary prisoners of war.

''This is the answer for what we're dealing with: unlawful belligerents who do not come within our constitutional structure,'' says Catholic University law dean Douglas Kmiec, who supports the use of military tribunals. ''The president's order is not extraordinary when one places it in the context of historic military campaigns.''

But some members of Congress are critical of Bush's move. U.S. Rep. John Conyers, D-Mich., the ranking Democrat on the House Judiciary Committee, says military commissions are based on the ''thinnest legal precedents'' and could ''antagonize our allies.'' Senate Judiciary Chairman Patrick Leahy, D-Vt., says he was left with more questions than answers by Bush's directive. ''We need to understand the international implications of the President's order, which sends a message to the world that it is acceptable to hold secret trials and summary executions,'' Leahy said. Harvard University law professor Anne-Marie Slaughter, who has studied tribunals, said: ''President Bush has said this is a war to bring terrorists to justice. So the real question is, what's justice? That requires a fair trial and proof beyond a reasonable doubt, and that is not the aim of a military tribunal.'' A better option, she says, would be convening an international war crimes tribunal.

Bush's order Tuesday was the latest in a series of administration moves that have infuriated civil libertarians. It came on the same day the Justice Department announced it would try to question more than 5,000 men who have entered the country since January 2000 from nations linked to the al-Qa'eda terrorist network.

A week ago, the administration made clear that it would wiretap prisoners' conversations with their lawyers if officials believe the prisoners might be passing on terrorist information.

''There is a natural temptation to hunker down whenever we are in crisis,'' says New York University law professor Joshua Rosenkranz. ''But there is a danger that this hysteria-driven effort to protect to ourselves is weakening the foundations of our democracy.''

Military as judge and jury

Military commissions essentially set their own rules.

Under Bush's order, the tribunals could sit at any time and any place. Military officers would serve as judge and jury, deciding both the law to be applied and resolving disputes over facts that usually are the domain of a jury.

Instead of a unanimous verdict, the votes of only two-thirds of the members of a military panel would be needed to convict and sentence a defendant, and even impose the death penalty.

Bush would decide who would be subject to the tribunal, based on his belief that an individual is a member of al-Qa'eda or has committed or helped commit international terrorism.

The order gives Rumsfeld the power to detain anyone Bush targets, but also requires that the suspect be ''treated humanely, without any adverse distinction based on race, color, religion,'' and be ''allowed the free exercise of religion.''

The president would have the option to review a verdict and make any final decision in the case. But any death sentence would lead to calls for a Supreme Court review.

Bush dodged one potential legal obstacle by declaring that the tribunals would not be used to try U.S. citizens. Two of the Nazi saboteurs tried during World War II held American citizenship, and their trials were complicated by their claims that their cases should have been handled by a standard federal court.

Tribunals have precedents

The case involving the Nazi saboteurs had some parallels with the hijackings. Eight Germans were dropped off by U-boats on beaches near Amagansett, N.Y., and Jacksonville, Fla. The men, all of whom previously had lived and worked in the USA, spoke fluent English, wore American-style clothes and carried blasting caps and other sabotage tools. Their instructions, written in invisible ink on pocket-handkerchiefs, identified industrial targets in Chicago, Detroit and New York as well as a network of backers in the USA.

But the plan began to unravel immediately, when a Coast Guardsman on beach patrol encountered some of the terrorists and heard them speaking German. The men escaped to New York City. Fearful that they would be caught, two of the Germans contacted the FBI and betrayed the other six.

A week after the arrests, President Franklin Roosevelt signed an executive order authorizing a military commission to try the men. The men turned to the Supreme Court, citing an 1866 case that forbade the military trial of any American civilian while ordinary courts were open. But the court said the Germans were ''unlawful belligerents'' who had entered the country clandestinely and thus had no rights to a public trial or a trial by jury.

The men were tried in secret before a military panel and convicted. The two who cooperated received prison sentences and the other six were executed, 7 weeks after they were captured.

Military trials were common during the Civil War, when 13,000 soldiers and civilians were tried before about 5,000 commissions. The most memorable occurred at the war's end, when eight civilians with Confederate ties were tried in May and June 1865 for helping John Wilkes Booth carry out the assassination of President Lincoln.

That panel was created by President Andrew Johnson, Lincoln's successor, who like President Bush signed an order based on his law department's recommendation. Johnson's attorney general, James Speed, argued that the assassination was an act of war because under the Constitution. Lincoln was commander-in-chief.

Edward Steers, author of Blood on the Moon, a history of the assassination, says Johnson had a more pragmatic reason for a military trial: avoiding a jury of Confederate sympathizers who lived in Washington, which despite being the U.S. capital essentially was a Southern city.

After a 50-day trial, all eight were found guilty by a panel of seven generals and two colonels. By a two-thirds vote, four defendants were sentenced to hang, and four others received long prison sentences. It took less than 3 months from the time of the assassination for the sentences to be carried out.

''That's the beauty of the thing . . . from the government's perspective,'' says James Hall, co-author of Come Retribution, a study of Civil War terrorism. ''Things move quickly, and from a legal standpoint it's all self-contained.''

The Lincoln case also is similar in several respects to the current situation. Historians note that Booth and his co-conspirators intended to kill not just Lincoln but Vice President Johnson and Secretary of State William Seward, who was next in line for the presidency. Had Johnson and Seward also been killed, the Constitution as then written made no provision for choosing a new president.

''It was a formula for civic chaos or confusion with parallels'' to the Sept. 11 attacks, says Michael Maione, historian at Ford's Theatre, where Lincoln was shot.

As the U.S. government has done in the hijacking probe, authorities rounded up and detained large numbers of potential suspects. About 200 were arrested and held, author Michael Kauffman estimates, in a nation whose population was about one-ninth what it is now. Federal investigators have detained and questioned more than 1,200 in the investigation of the terrorist attacks.

Little dissent in Congress

To this point, Congress has been largely mute in response to Bush's plan. Many members want more details about the tribunals. Sen. Carl Levin, D-Mich., chairman of the Armed Services Committee, said he had concerns about the order, especially the extent to which the trials can be kept secret. But the influential Democrats stopped short of criticizing the president.

In Washington, investigators pursuing the hijacking inquiry said the possibility of military trials gives them one more tool to persuade persons with knowledge of how the hijackings were done to talk to authorities.

The possibility that a potential defendant may have to face a military panel, said one veteran investigator, could be a potential ''mind-focuser.''

Investigators say at least two men currently in custody were linked to the Sept. 11 hijackings but that their involvement would be difficult to prove ''beyond a reasonable doubt,'' the standard of an ordinary criminal court.

Zacarias Moussaoui, a French citizen with ties to radical Muslim groups, was arrested on immigration charges nearly a month before the Sept. 11 attacks. He has been linked to some of the hijackers through phone intercepts.

A second suspect, pilot Lotfi Raissi, is believed to have coached the hijackers on flying techniques before the attacks. He is being held in London and is fighting extradition to the United States.

Attorney General John Ashcroft said Wednesday that Bush's plan recognizes the potential difficulty in trying terrorism suspects.

''The United States is in a state of war,'' he said. ''It's important to give the president of the United States the maximum flexibility consistent with his authority.'' Cover storyCover story