New York Times
November 14, 2001
Bush to Subject Terrrorism Suspects to Military Trials
By ELISABETH BUMILLER and DAVID JOHNSTON
WASHINGTON -- President Bush signed an order today allowing special military tribunals to try foreigners charged with terrorism. A senior administration official said that any such trials would "not necessarily" be public, and that the American tribunals might operate in Pakistan and Afghanistan.
At the same time, the Justice Department has asked law enforcement authorities across the country to pick up and question 5,000 men, most from Middle Eastern countries, who entered the country legally in the last two years.
Both actions are part of a sweeping government effort to expand the investigation into Al Qaeda's network and clear the way for the more aggressive prosecution of anyone charged with terrorism.
Mr. Bush signed the order allowing for the military tribunals shortly before leaving this afternoon for his ranch in Crawford, Tex. White House officials said the order did not create a military tribunal or a list of terrorists to be tried. Instead, they said, it was an "option" that the president would have should Osama bin Laden or his associates in Al Qaeda be captured. If the tribunals were created, it would be the first time since World War II that such an approach was used, officials said.
Under the order, the president himself is to determine who is an accused terrorist and therefore subject to trial by the tribunal. The order states that the president may "determine from time to time in writing that there is reason to believe" that an individual is a member of Al Qaeda, has engaged in acts of international terrorism or has "knowingly harbored" a terrorist.
In order to make such a finding, the president needs information, and obtaining information about Al Qaeda and the Sept. 11 terrorist acts is the goal of the Justice Department's effort to find and interview the 5,000 men, department officials said.
The people being sought are not believed to be terrorism suspects, and they will not be placed under arrest, the officials said. The interviews are intended to be voluntary.
Nonetheless, officials at the American Civil Liberties Union condemned the Justice Department effort, as well as the executive order allowing military tribunals.
Steven Shapiro, the national legal director of the A.C.L.U., called the effort to interview the 5,000 men a "dragnet approach that is likely to magnify concerns of racial and ethnic profiling."
Laura W. Murphy, the director of the A.C.L.U. Washington National Office, described the order regarding tribunals as "deeply disturbing and further evidence that the administration is totally unwilling to abide by the checks and balances that are so central to our democracy."
White House officials said the tribunals were necessary to protect potential American jurors from the danger of passing judgment on accused terrorists. They also said that the tribunals would prevent the disclosure of government intelligence methods, which normally would be public in civilian courts.
"We have looked at this war very unconventionally, and the conventional way of bringing people to justice doesn't apply to these times," said Dan Bartlett, the White House communications director.
Some legal experts approved of the order, saying a military court would place fewer restrictions on evidence that could be admitted as well as providing protections for intelligence efforts.
Ruth Wedgwood, an international law professor at Yale Law School and the Johns Hopkins School of Advanced International Studies, said the circumstances of the war on terrorism gave Mr. Bush little choice.
"Given the dangerousness of the Al Qaeda network, it is the prudent way to try these cases," she said.
But experts in military law said that the tribunals would severely limit the rights of any defendant even beyond those in military trials. The tribunals, they said, did not provide for proof of guilt beyond a reasonable doubt and would not require strict rules of evidence like those in military and civilian courts.
"The accused in such a court would have dramatically fewer rights than a person would in a court martial," said Eugene R. Fidell, the president of the National Institute of Military Justice.
Mr. Fidell said he expected the order to be challenged in court. "It establishes a court that departs in important respects from core aspects of American criminal justice," he said.
White House officials said there was precedence for the military tribunals and that they had been approved by the Supreme Court, first in 1801. The assassination plotters of Abraham Lincoln were also tried and convicted by a military court, Bush administration officials said.
President Franklin D. Roosevelt, White House officials said, had German saboteurs tried by a military court during World War II; six of them were executed. The Supreme Court upheld the proceeding, saying that people who entered the United States for the purpose of waging war were combatants who could be tried in a military court.
"What would you do if you caught bin Laden?" one administration official said last night. "This is an additional option that is being provided by this order." Administration officials said that a long, public trial might turn Mr. bin Laden into a martyr, and could cause further terrorism and hijackings in his name.
The names of the 5,000 people that the Justice Department wants to interview were compiled from immigration and State Department records of people who entered the United States since Jan. 1, 2000 on tourist, student or business visas. Only men aged 18 to 33 with these visas who are living in the United States are on the list.
The names of the countries whose citizens have been placed on the list were not made public by the Justice Department, but most are Middle Eastern nations thought to have harbored followers of Osama bin Laden or to have been used by Al Qaeda as a staging base for activities in the United States.
Mindy Tucker, the Justice Department spokeswoman, said she hoped some of the men would help the government thwart further terrorist attacks. "They could be witnesses; we won't know until we talk to them," Ms. Tucker said.
On Capitol Hill, the issue of who is entering the country illegally was in the forefront today, with senators sharply questioning a senior official of the Immigration and Naturalization Service who acknowledged that immigration agents are not required to conduct criminal background checks on aliens caught crossing the border illegally.
The official, Michael A. Pearson, the executive associate commissioner for field operations, said agents can use their discretion as to whether such a person should be detained or let go pending further action.
Mr. Pearson said 12,338 undocumented aliens were arrested for illegal entry along the nation's northern border in the last fiscal year, and that two-thirds of them agreed to return voluntarily to their home countries. But Mr. Pearson was not able to account for the 4,400 people who did not chose to return home voluntarily.
Asked how many of them were detained pending a hearing and how many were let go and then failed to show up as required before an immigration judge, he could not give an answer.
Senator Carl Levin, a Michigan Democrat and chairman of the Senate's permanent subcommittee on investigations, responded, "I find that disturbing, to put it mildly."
Questioned by Senator Susan Collins, a Maine Republican, Mr. Pearson said it was true that the I.N.S. had no ability to verify that aliens who are let go but instructed to leave the country actually do leave.
"If there's no system for checking if the individual has actually left in the 30 days as promised, isn't it likely they are not leaving?" Ms. Collins persisted.
"That could certainly be the case," Mr. Pearson replied.
Mr. Pearson said border control agents use two computer systems for checking and processing aliens for immigration violations. But he said it is left to the discretion of agents whether to check a separate criminal data base when judging whether such a person should be detained as a risk. He said that border agents often do not have easy access to the criminal data base and that the government was working on trying to merge its different data collection systems over the next few years.
Since Sept. 11, President Bush has ordered a tightening of immigration controls and instructed administration officials to work to find and deport foreigners who have overstayed visas or are otherwise in the country illegally.
Administration officials say one of the challenges for maintaining homeland security in the next few years is to standardize databases so that information about government watch lists are widely available.
Copyright © 2001, New York Times Company. All rights reserved.
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