WASHINGTON, Nov. 18 (UPI) -- Aides to President Bush say that as the order authorizing military commissions to try suspected terrorists was being drawn up, he insisted that he should personally decide who stands trial before the tribunal, according to an article in Newsweek magazine.
The president's military order about the special tribunals -- which he signed last Tuesday -- emerged from a secret legal memorandum which the U.S. Department of Justice began drafting after the Sept. 11 terrorist attacks in Washington and New York City which killed some 4,600 people, according to the article.
The military order 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.
Officials envision holding the tribunals on aircraft carriers or desert islands, according to Newsweek.
The idea for a secret tribunal was first presented by former Attorney General William Barr -- who served under the first President Bush -- as a way to handle the trial of the terrorists suspected for the 1988 bombing of Pam Am 103 over Lockerbie, Scotland, Newsweek reported.
The White House was able to circumvent the problem of possibly having a trial which posed potentially daunting physical and national security problems by concluding that the United States was "in a state of armed conflict" -- thus allowing the president to invoke his broad wartime powers, Newsweek said.
"The president first used the memo as the legal basis for his order to bomb Afghanistan. Weeks later the lawyers concluded that Bush could use his expanded powers to form a military court for captured terrorists," the article said.
While senior officials told Newsweek they foresee using the military courts sparingly, White House counsel Alberto Gonzales to it was also their intention to hold trials that are "fair and that are public if we can."
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," Lloyd Cutler, former White House counsel for President Clinton, told UPI last week.
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.
Both Amnesty and Human Rights Watch have said the order violates the United States' legal obligations under the International Covenant on Civil and Political Rights.
Nihad Awad of the Council on American-Islamic Relations said in the Newsweek article that many Muslims are scared that the government would "go to this level where there is no due process."
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. Barr told Newsweek he got his inspiration for the memo he drafted from a plaque outside the courtroom commemorating the 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.
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.