WASHINGTON, Nov. 15 (UPI) -- An order signed by President Bush allows the United States to send foreigners accused of terrorism to special U.S. military courts for trial, provoking widespread criticism abroad.
Human rights advocates and constitutional lawyers in the United States have questioned its legality and the issue may complicate extraditing terror suspects from Europe.
Defenders of the decision say that extraordinary measures are needed to protect U.S. intelligence sources and guard against attacks on U.S. courts.
The order, published Tuesday evening, directs U.S. Defense Secretary Donald Rumsfeld to establish one or more military commissions to try individuals believed to be members of the Muslim extremist group al Qaida who have engaged in, or aided, or planned acts of international terrorism against the United States, or harbored anyone doing so.
In the United States, the Washington-based Human Rights Watch group Thursday compared the military tribunals Bush envisages with the court in Nigeria that sentenced Nobel prize-winning author Ken Saro Wiwa to death amid a chorus of international outrage.
"Under this Executive Order, a defendant could be sentenced to death without a public trial, the presumption of innocence, a right to appeal, or even proof of guilt beyond reasonable doubt," said Kenneth Roth, the group's executive director.
"No protection is provided against forced confessions nor is it clear to what extent defendants will have access to legal counsel. Suspects detained ... will not need to be told the reason for their arrest," read a statement from the group.
In the United States, concerns have centered on whether treating foreigners differently is constitutional and whether national security is a sufficient reason for secret trials, according to a variety of experts on military and constitutional law consulted by United Press International.
"One thing they have done that I don't quite understand ... is (give) the military people that conduct a military trial ... exclusive jurisdiction. The case cannot be reviewed by any court in the United States or elsewhere, including an international court," said Lloyd Cutler, former White House counsel for President Clinton.
In Europe, concern has focused especially on the use of the death penalty by such tribunals.
European governments previously have objected to the United States about its use of capital punishment, and the issue could complicate extradition of terror suspects, according to European diplomats in Washington. All member states of the European Union are signatories to the European Declaration of Human Rights, which outlaws the use of capital punishment.
An op-ed in Italy's prestigious La Stampa opened with the words: "We have not yet arrived at the torture of political prisoners, but military trials of terrorists are here." Describing what it called "the ferocious controversy" over the order, the paper said it would "speed the implementation" of the death penalty.
In London, Amnesty International described itself as "deeply troubled" by the order, which it said was "discriminatory by affording foreign nationals a lower standard of justice than U.S. nationals," and "provides no right of appeal against conviction or sentence to a higher court, or access to redress for any human rights violations that may occur during arrest, detention or prosecution..."
Both Amnesty and Human Rights Watch said the order violates the United States' legal obligations under the International Covenant on Civil and Political Rights.
Cutler said he saw two underlying rationales for the order.
"The one would be the danger that the lawyers would be used to send coded messages. For example the defendant would say 'tell my wife I am all right or tell my children to do their homework' and if the lawyers tell that it's actually a coded message received by another member. Just how valid a concern that is, I don't know," said Cutler, who is now in private practice.
Bush's order also says the commissions can be set up anywhere inside or outside the United States, and do not have to operate within "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." The order also provides that anyone covered by it who is already in the custody of any U.S. agency shall "forthwith be placed under the control of the Secretary of Defense."
Cutler said security issues were a second concern -- the protection of classified intelligence sources, and the safety of U.S. jurors, judges and lawyers involved in any trial.
He pointed out that in conventional criminal trials, the government has a duty to disclose information -- including material about its sources -- to defense attorneys.
One analyst suggested that the order had been drawn up in part as a result of the lessons learned from the 1993 World Trade Center case. The trial of the four men accused and later convicted of detonating a bomb in the underground parking lot of the complex was held before a U.S. District Court in New York City.
"As we learned from the first World Trade Center trial, the defense requested all kinds of information," said a Philadelphia attorney and a former member of the U.S. Army Judge Advocate General Corps. "It's been said we lost the upper hand publicizing how our national security investigation was carried out."
The special military courts would allow secret proceedings to protect national security and classified information, a reason the White House gave for President Bush's order.
But the constitutional status of the order remains murky and likely to be challenged should such a tribunal ever convene.
Melvin I. Urofsky, a constitutional law professor with Virginia Commonwealth University's Center for Public Policy, said Thursday two strands of constitutional precedent exist. The stronger, he said, is that the government may not try civilians for any crime in a military court while the civil courts are open and running.
"While one can never guess what any court, much less this Supreme Court, will do, I would think that if the federal government arrested a person in the United States for a civil crime, namely terrorism, and attempted to try him in one of these tribunals, then the ACLU and other groups would surely file a suit, and they would have very strong precedent on their part. There is no case that says that the government can set up separate military tribunals while civil courts are open," Urofsky said.
Indeed, one precedent decided by the Supreme Court -- the 1957 case of Reid v. Covert -- ruled that the government could not try civilians in a military court during peacetime.
In defense of the order, administration officials including Attorney General John Ashcroft have cited a 1942 case in which then-President Franklin D. Roosevelt ordered a secret military trial for eight German saboteurs who slipped into the United States laden with explosives with the intention of blowing up American military installations.
Cutler was a junior prosecutor during the trial which was held in a walled off sixth floor hearing room inside U.S. Department of Justice headquarters in Washington.
"The investigation was run by the FBI. We never interviewed any of the witnesses. It was all done by [J. Edgar] Hoover's FBI," said Cutler who co-authored the briefs in the case. Still, he described the proceedings as a "fair and full trial."
The eight were tried over slightly less than a month before a military commission comprised of seven U.S. Army officers appointed by Roosevelt. Two of the eight saboteurs had decided during their journey to defect and were sentenced to life in prison, but the remaining six were executed four days after the trial ended. Cutler said the U.S. Supreme Court later upheld the convictions on the merits of the case.
The circumstances leading up to the 1942 case bear a chilling resemblance to what is now known about the 19 foreigners accused of carrying out the Sept. 11 terrorist attacks on New York and Washington in which they hijacked four commercial passenger jets and used them as fuel-laden bombs, killing some 4,600 people.
The German soldiers were sponsored and trained by their government much as the hijackers were allegedly sent by al Qaida after training in Taliban-ruled Afghanistan. However, much legal argument is likely to center on whether suspects in the Sept. 11 case can be considered civilians, rather than combatants -- a term Ashcroft has used to describe them -- albeit not soldiers sent by a sovereign government.
On the other hand, Urofsky said, in the 1942 case the Supreme Court reasoned that the United States was at war with Germany, through a formal declaration of war adopted by Congress the previous December, and that the men were essentially charged with military crimes, i.e. sabotage, and were therefore within the legitimate control of military courts, and the men were all German nationals and soldiers.
Although Congress has not passed a declaration of war, Urofsky said, the United States is in a de facto war, and the courts will recognize the reality of that situation.
"If, therefore, the United States captured Osama bin Laden or any other terrorist outside the country, I should think there would be no constitutional argument against trying him before a military tribunal," Urofsky said.
But he said Ashcroft would have a very difficult time convincing a court that a military tribunal has jurisdiction over foreign terrorists caught within the borders of the United States, in part because of the attitude of the global community toward such an exercise of American power.
Eugene R. Fidell, president of the National Institute of Military Justice, said he was certain people tried before military courts will seek assistance from federal courts -- raising the question of whether federal courts would grant habeas corpus relief to petitions filed by aliens. That will be the point where the path to legal resolution becomes complicated, he said.
The traditional definitions surrounding war, nations, nation-states, rights of defendants and even the proliferation of weapons have changed how such issues will be treated both in U.S. and international law, Fidell said.
For civil liberties advocates, the order raises the prospect of dozens of secret, truncated trials in which defendants -- denied the legal representation of their choice -- face the death penalty.
One of the earliest examples of civilians being tried in a military court came in the 1865 trial of eight civilians accused in the conspiracy to assassinate President Abraham Lincoln. An Army Military Commission convened to try them, eventually giving three the death penalty three months later. The remaining defendants were sentenced to imprisonment.
The attorney general at the time, James Speed, argued that "to unite with banditti, jayhawkers, guerillas or any other unauthorized marauders is a high offense against the laws of war."
"The offense is complete when the band is organized or joined," Speed wrote in his July 1865 opinion on the constitutional power of the military.
One defendant convicted as a conspirator, Dr. Samuel Mudd, eventually was pardoned, but his great-grandson, Richard Mudd, in an attempt to obtain full exoneration for his grandfather stated that the army commission lacked jurisdiction to try him. Last year, a U.S. District Court for the District of Columbia ruled against him, saying that the charges against Mudd "constituted a military offense making him accountable for his conduct to military authorities."