- The Washington Times - Sunday, December 9, 2001

President Bush's decision to establish military tribunals has emerged as a polarizing issue between both opponents and supporters of the executive order.
Yet one key question for both critics and proponents of Mr. Bush's "military order" authorizing armed forces trials of al Qaeda members is why the president put his plan up for debate before any trials could be held.
"That I'm not sure anybody knows," said Lee A. Casey, a constitutional lawyer who endorses such commissions to try Osama bin Laden and his lieutenants. Mr. Casey called them "textbook examples of unlawful combatants."
"The Supreme Court has recognized that individuals falling within the category of 'unlawful combatant' are not civilians, and that they may be prosecuted before a military commission," Mr. Casey said. "If it turns out the perpetrators of the anthrax attacks were not connected to al Qaeda, acting to further bin Laden's 'war' against the United States, then I don't think they could be tried before a military commission."
The primary objections of opponents are that commissions can:
Accept evidence civil or military courts would exclude on constitutional grounds.
Issue death sentences without a unanimous vote.
Forbid prisoners "to seek any remedy or maintain any proceeding" in any other court, which many analysts interpret to bar all appeals including habeas corpus petitions to test Mr. Bush's authority to issue the order.
Not all critics, however, are concerned only with the mechanics of military courts.
"Our democracy is in real danger if any one branch of the government becomes too powerful," said American Civil Liberties Union President Nadine Strossen. "The Constitution's delicate balance of powers is becoming dangerously tilted toward an excess of executive branch power."
American Bar Association President Robert E. Hirshon objects to the secrecy permitted by the president's order.
"We should have enough confidence in our own system of justice, be it civilian or military, to be willing to allow the world to watch it work," Mr. Hirshon said.
Attorney General John Ashcroft defended the plan at a Senate Judiciary Committee hearing this week where senators wanted specifics.
"But now the administration says this is not an effort to suspend habeas corpus?" asked Chairman Patrick J. Leahy, Vermont Democrat.
The attorney general said he expects the U.S. Supreme Court to review whatever has been done, but believes that the issue was resolved by the court's 1942 decision allowing a military commission to try and condemn eight German saboteurs put ashore by submarines in New York and Florida.
"There are obviously some hints in the president's order that indicate a level of fairness that I think is clearly understood," Mr. Ashcroft said.
"Our country was in a declared state of war against Germany," said Timothy Lynch, a criminal justice analyst at the Cato Institute who opposes military trials for Islamic terrorists in the United States.
"Critics on both the left and right have assailed the order and said that it goes too far," said Charles Pena, moderator of a Cato forum on the issue.

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