President Bush yesterday established a framework for the creation of special U.S. military tribunals to try foreigners accused of terrorist attacks and mete out sentences, including the death penalty.
The military order gives Secretary of Defense Donald H. Rumsfeld the authority to establish the courts, similar to those established by President Franklin D. Roosevelt during World War II.
“Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency,” Mr. Bush said in the order.
White House Counsel Al Gonzales said the order gives Mr. Bush an option and a tool besides civilian courts for bringing to justice those directly responsible for attacks like the September 11 assaults on New York and Washington.
“The president would make a separate independent finding that someone was a member of a terrorist organization like al Qaeda and that it was in the interests of the United States that the person be prosecuted,” said Mr. Gonzales. “That person would then be delivered to the secretary of defense who would take control of the individual.”
But the establishment of the framework for military tribunals does not tie the president’s hands.
“There may not be a need for this and the president may make a determination that he does not want to use this tool, but he felt it appropriate that he have this tool available to him,” said Mr. Gonzales.
The order specifically names the al Qaeda terrorist group, led by Osama bin Laden, the mastermind in the September 11 terrorist attacks. Mr. Bush said that individuals “subject to this order” include anyone who:
“Is or was a member of the organization known as al Qaeda.”
“Has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”
“Has knowingly harbored one or more [of the above] individuals.”
The order gives the secretary of defense broad powers, including the right to seize any suspect “subject to this order” from any state in the nation and commence a military tribunal. The defense secretary also will determine when to establish a military tribunal and will oversee the courts.
The order sets out the punishment those tried by the tribunals face.
“Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death,” the order states.
The tribunal will act “as the triers of both fact and law” and both conviction and sentencing require a two-thirds vote of the court’s members.
Mr. Bush will stand as the final judge upon conviction, unless he designates the duty to the defense secretary, the order states.
The American Civil Liberties Union criticized the move, saying Mr. Bush should first “justify why the current system does not allow for the timely prosecution of those accused of terrorist activities.”
“Absent such a compelling justification, today’s order is 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,” said Laura Murphy, director of the ACLU’s national office.
“Increasingly they appear willing to circumvent the requirements of the Bill of Rights,” she said.
The order also forbids any individual from seeking “remedy” in any other U.S. court or “any court of any foreign nation or any international tribunal.”
“These are obviously extraordinary times and the president wants to have as many options available to him as possible,” said Justice Department spokeswoman Mindy Tucker. “This particular option does not preclude any Department of Justice options that might also be available.”
There is precedent for the military tribunals, said Mr. Gonzales, citing the trial of eight German saboteurs during World War II. He said the system also had been used in the 19th century in the Civil War and the Mexican War.
Mr. Bush signed the order before leaving Washington for his ranch in Crawford, Texas.
This article is based in part on wire service reports.