- The Washington Times - Thursday, December 6, 2001

As Attorney General John Ashcroft prepares to discuss national security and civil liberties concerns about the war on terrorism before the Senate Judiciary Committee this morning, the Bush administration finds itself in a strange position. It is probably not an exaggeration to say that were it not for the herculean efforts by the administration since September 11 both domestically and abroad there likely would have been more bloody attacks on American soil. Public opinion polls routinely show that 80 percent to 90 percent of Americans approve of the job President Bush is doing in the war on terror. While much of this is certainly justified, the administration would be making a huge mistake to infer that all is well.
For one thing, based on what is known about Osama bin Laden and his terrorist activities (and the abysmal pre-September 11 job Washington did in keeping track of who was entering the country), there are almost certainly al Qaeda "sleeper" cells in the United States today, waiting for instructions on when and where to strike. No less troubling are proposals that raise serious civil liberties problems, and the administration has done a poor job of explaining them. In particular, Mr. Ashcroft can expect tough questioning about Mr. Bush's Nov. 13 order authorizing presidentially appointed military courts to try non-citizens accused of terrorism.
Questions need to be answered about the military tribunal issue. One very thoughtful article questioning how such a system might work comes from the respected legal affairs analyst Stuart Taylor Jr., who addressed the subject in a Dec. 4 piece published by the Atlantic online, titled "Military Tribunals Need Not Be Kangaroo Courts." Mr. Taylor, who leans toward keeping the military tribunal option "open" under certain conditions, is nonetheless decidedly skeptical about the concept, particularly the way in which the Bush administration wants to implement it. Mr. Taylor writes that, under Mr. Bush's order, the administration "has assumed sweeping power to make [non-citizens] almost disappear," adding that "Unless the as-yet-unwritten procedural rules contain far more specific fair-trial guarantees than those mentioned in the president's order, such presumptively innocent non-citizens accused of terrorism could be plucked from their homes and families, jailed under harsh conditions, and charged, tried, convicted and executed, all in secret even if there were too little evidence to prove guilt beyond a reasonable doubt or to convince more than two-thirds of the quasi-jury of military officers. Any trials of that kind would rank among the greatest outrages in our long history of excessive wartime curbs on our liberties."
Mr. Taylor expresses optimism that the Bush administration may be in the process of fine-tuning its proposal to meet these and other concerns. He cites Assistant Attorney General Michael Chertoff's impressive Nov. 28 Judiciary Committee testimony, in which he promised that detailed rules for the tribunals, which are now being drawn up by the Pentagon, will contain credible fair trial guarantees. Let's certainly hope that, when he testifies today, Mr. Ashcroft clarifies what guarantees will be in place.

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