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The idea of military commissions had no shortage of conservative legal sponsors in the Bush entourage. Former Attorney General William Barr mentioned tribunals to the White House and the Department of Justice shortly after Sept. 11; George Terwilliger, a former Justice official, did the same. On Sept. 28, John Dean--yes, that John Dean--posted an article on the Internet announcing he had passed the idea on to Justice. In any event, tribunals were already literally under the noses of Administration lawyers. During World War II, room 5235 of what is now the office of legal counsel at the Department of Justice housed one of the last such trials. It ended with death sentences for six of eight Nazi saboteurs who arrived in America via submarine. A plaque commemorates the event.
Many of the lawyers--including deputy assistant attorney general John Yoo and Tim Flanigan, deputy White House counsel--clerked for conservative Supreme Court Justices. They felt that offshore military tribunals would be upheld without much problem. In the absence of a full-scale domestic war, tribunals on American soil were less likely to survive a Supreme Court challenge. That's because the courts have greatly expanded the rights of criminal defendants in the 50 years since such tribunals were held.
But the White House was determined to give the plan a shot. Three weeks ago, the President and Vice President turned up the heat. "It was not moving at the speed the President wanted," says a senior Administration official. "So the message was sent clearly to get it moving even before things started going well [in Afghanistan]."
FBI leaders were not consulted. Had they been, some might have objected. Long-tenured bureau officials still remember the lambasting they took for overstepping constitutional bounds during Watergate. Many believe that tribunals, while permissible, undermine public confidence in the legal system. Nevertheless, their boss, Attorney General John Ashcroft, signed on to the order. The past few weeks have seen Ashcroft approve a suite of gestures--the monitoring of attorney-client communications, the interviewing of 5,000 uncharged foreign nationals on American soil and the detention of at least 1,200 mostly unidentified immigrants--that at best abridge defendants' rights. This latest policy, not to mention Ashcroft's highly quotable endorsement, which made clear that suspected terrorists will not benefit from the presumption of innocence, brought a remarkably diverse chorus of criticism. The American Civil Liberties Union, predictably, was all over Ashcroft, claiming the order was not just a violation of civil rights at home but also a detriment to American credibility abroad. How can we be fighting for the values of our Constitution against an enemy that abhors them, yet ignore those values in pursuing our enemy? Punches also came from the right. In a New York Times column titled "Seizing Dictatorial Power," William Safire exhorted "conservative iconoclasts and card-carrying hard-liners to stand up for American values" and oppose the plan.