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Suddenly, surprisingly, the hour of justice is approaching. Since Sept. 20, the sharpest legal minds in the White House and Department of Justice have been working to turn the President's poetic abstraction into specific judicial doctrine. What they have cooked up for al-Qaeda and other terrorists is undeniably shrewd and, to civil libertarians, profoundly chilling. Last week Bush signed the results of the legal labor--a military order allowing foreign nationals suspected of terrorism to be judged, at the discretion of the President, by special military tribunals. The proceedings, whose exact rules will be set on a case-by-case basis by Defense Secretary Donald Rumsfeld, can be secret. They may take place in the U.S. or abroad. Hearsay can be used as evidence. The defendant has neither the absolute right to challenge the evidence against him nor the right to hear it. He may not have access to the lawyer of his choice. Guilt need not be proved beyond a reasonable doubt. The verdict need not be unanimous. Executions are allowed. There may not be provision for appeal. Legally, at least, the terrorists have their wish. They are soldiers after all.
Do the ends--speedy, secure trials that protect classified intelligence--really justify the authoritarian means? Bush Administration lawyers answered yes, without a lot of debate. American terror trials are slow and potentially dangerous for juries and judges, they argued. They complained that despite the recent convictions of Sheik Omar Abdel Rahman and Ramzi Ahmed Yousef (who bombed the World Trade Center in 1993) and Timothy McVeigh, terror cases are hard to win. Trials can be closed to present classified information, but intelligence officers, not their secret sources, take the stand, and their testimony can be challenged as hearsay. In criminal court, say Administration officials, the U.S. would be forced to choose between exposing extremely sensitive sources and tactics used to get the evidence necessary for a conviction, and dropping the case. "For the benefit of the public," said an official, "those are situations we didn't want to be confronted with."
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.