WASHINGTON, Nov. 20 (UPI) -- A Washington think tank released a memorandum exploring the legal aspects of trying suspected terrorists in the U.S. military justice system days before it was announced that President George W. Bush had signed an emergency executive order to establish military tribunals for the quick prosecution of accused terrorists.
The order, which says the tribunals 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" (and can include the use of secret evidence and secret testimony), has drawn considerable comment.
The memorandum, "Bringing al Qaida to Justice: The Constitutionality of Trying al Qaida Terrorists in the Military Justice System," from the conservative Heritage Foundation, traces the legal history of using military commissions in an attempt to educate today's policymakers on how to handle the legal questions that they will ultimately have to answer after catching members of al Qaida.
The Heritage report comes out neither for nor against the use of military tribunals. The memorandum simply examines the different constitutional issues that might arise if the president uses military commissions to prosecute terrorists.
"It's difficult to use the regular justice process to prosecute terrorists without jeopardizing sources and methods and impeding the ability to get at the next bunch of terrorists," says David Rivkin, who wrote the report with Lee Casey and Darin Bartram. All three are attorneys with the Washington law office of Baker & Hostetler. Rivkin is a former legal council for the Reagan and the George H. W. Bush administrations.
Rivkin cites a U.S. Supreme Court case during the Second World War called Ex parte Quirin as the most recent example of the legality of the United States trying civilians in a military court.
The Quirin case involved eight German saboteurs who landed on the coasts of New Jersey and Florida and were accused of plotting to destroy several factories and railroads. In a deviation from the traditional judicial process, a U.S. military court tried and convicted the group and six members were executed.
The Heritage report evaluates the similarities -- and differences -- between the Quirin case and the current situation.
"The members of al Qaida who carried out the Sept. 11 attacks and their surviving compatriots clearly entered the United States out of uniform and for the purpose of committing hostile acts involving the destruction of life and property here," says the memorandum. "The critical question, however, is whether they acted as enemies of the United States during a time of war."
"This process is not applicable to all terrorists -- it is only applicable to those individuals who are unlawful combatants (in a war)," says Rivkin. "So for example, if the Unabomber or Timothy McVeigh were caught today it would not apply to them."
According to international law, says the report, "a formal declaration is not necessary to constitute a state of war." However, the real battle lies not in the international courts of justice but in the halls of Congress. The Heritage report says the main difference between President Bush's order and the Quirin case is that Congress had officially declared war against Germany in 1942, whereas the 107th congress has not.
"The absence of a formal declaration of war might lead several justices to distinguish Quirin, even if we believe the distinction is not constitutionally significant," states the memorandum. "modern judicial activists have discarded far more established and well-reasoned cases than Quirin."
Legal support for the use of military tribunals seems to cut across lines of political orientation.
Citing the Yugoslav and Rwandan War Crimes Tribunals as examples, Ruth Wedgwood, senior fellow at the liberal Council on Foreign Relations and professor of International Organizations and Law at Yale asserts that traditional international criminal tribunals would not be a viable option for prosecuting al Qaeda terrorists. Wedgwood says that her experience working as an adviser for the Yugoslav War Crimes Tribunal leads her to believe that the immense amount of time necessary to organize an international tribunal could be dangerous.
If Osama bin Laden were captured, says Wedgwood, al Qaida associates could use threats and kidnappings of American civilians as a bargaining chip to broker his release from prison. Wedgwood maintains that public safety issues make it necessary to prosecute Bin Laden and other al-Qaeda kingpins with a swift military trail.
"Bringing 900 al Qaida members or Osama back to the United States is too dangerous," she says. "It's hard to imagine how you would protect a courthouse against the inventive violence of al Qaida. So having the trial in Dallas, New York or downtown Washington is rather absurd."
Edgar H. Brenner, a senior adviser to the Potomac Institute for Policy Studies, a think tank that concentrates on military issues, says that using military commissions to try terrorists is the way to go and the president's executive order is right on track.
"There's no question about it -- this makes perfect sense. By doing it this way you protect the people who give evidence and you don't risk disclosing sources and methods of gathering intelligence," says Brenner.
Other think tanks share the belief that the United States has the right to try al Qaida members by a military commission, but they are concerned about the depth of the executive order.
Bob Levy, a fellow in Constitutional studies at the libertarian Cato Institute says he is in favor of some provisions of the executive order but is against other segments of it. Levy is in favor of hunting down terrorists outside the United States but draws the line when it involves trying people living legally inside the United States.
"The Constitution applies to persons. It doesn't say citizens -- it says persons. So if someone is here in the United States legally -- as a temporary visitor or permanent resident alien, they are entitled -- and the Court has said this over and over again -- to full Constitutional protections," says Levy.
"The way this executive order reads empowers the president to order military trials for all non-citizens whether they are arrested in the United States or abroad," he says. "All these constitutional provisions will be thrown right out the door by this executive order."
Levy also cautions that the order places too much power in the Executive branch, and maintains that the authorization should be placed before Congress for approval. The Heritage report follows the same reasoning and concludes that the easiest way for the president to use military courts to try terrorists is for Congress to make a formal declaration of war against al Qaida or the Taliban.
Bill Taylor, Jr., a senior international security affairs adviser and former vice president of the Center for Strategic and International Studies, shares some of Levy's concern about the lack of Congressional involvement in the order.
"I'm concerned that we may have moved a little too fast on this one. I can't tell you that I've taken a position against it, but I am concerned that there is no legislative role in this. And just because it's been signed off as a presidential directive doesn't mean that there cannot be congressional oversight on this," says Taylor.
Taylor and Levy both maintain that the order will be subjected to judicial review by the courts after the first domestic case is brought to trial. Along those same lines, the Heritage report does not recommend using past court decisions as a guarantee of future success with this approach.
"In the past 50 years, the Supreme Court has become more protective of civil liberties, and is less likely to defer as extensively to the political branches in time of war or national emergency as it once did," says the memorandum. "Thus, heavy reliance on historical examples from the 19th century or one decision from the mid-20th century is ill advised."