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[Shohini]

Bush to Subject Terrorism Suspects to Military Trials

November 14, 2001 

By ELISABETH BUMILLER and DAVID 

WASHINGTON, Nov. 13 - President Bush signed an order today
allowing special military tribunals to try foreigners
charged with terrorism. A senior administration official
said that any such trials would "not necessarily" be public
and that the American tribunals might operate in Pakistan
and Afghanistan. 

At the same time, the Justice Department has asked law
enforcement authorities across the country to pick up and
question 5,000 men, most from Middle Eastern countries, who
entered the country legally in the last two years. 

Both actions are part of a sweeping government effort to
expand the investigation into Al Qaeda's network and clear
the way for the more aggressive prosecution of anyone
charged with terrorism. 

Mr. Bush signed the order allowing for the military
tribunals shortly before leaving this afternoon for his
ranch in Crawford, Tex. White House officials said the
order did not create a military tribunal or a list of
terrorists to be tried. Instead, they said, it was an
"option" that the president would have should Osama bin
Laden or his associates in Al Qaeda be captured. If the
tribunals were created, it would be the first time since
World War II that such an approach was used, officials
said. 

Under the order, the president himself is to determine who
is an accused terrorist and therefore subject to trial by
the tribunal. The order states that the president may
"determine from time to time in writing that there is
reason to believe" that an individual is a member of Al
Qaeda, has engaged in acts of international terrorism or
has "knowingly harbored" a terrorist. 

In order to make such a finding, the president needs
information, and obtaining information about Al Qaeda and
the Sept. 11 terrorist acts is the goal of the Justice
Department's effort to find and interview the 5,000 men,
department officials said. 

The people being sought are not believed to be terrorism
suspects, and they will not be placed under arrest, the
officials said. The interviews are intended to be
voluntary. 

Nonetheless, officials at the American Civil Liberties
Union condemned the Justice Department effort, as well as
the executive order allowing military tribunals. 

Steven Shapiro, the national legal director of the
A.C.L.U., called the effort to interview the 5,000 men a
"dragnet approach that is likely to magnify concerns of
racial and ethnic profiling." 

Laura W. Murphy, the director of the A.C.L.U. Washington
National Office, described the order regarding tribunals as
"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." 

White House officials said the tribunals were necessary to
protect potential American jurors from the danger of
passing judgment on accused terrorists. They also said the
tribunals would prevent the disclosure of government
intelligence methods, which normally would be public in
civilian courts. 

"We have looked at this war very unconventionally," said
Dan Bartlett, the White House communications director, "and
the conventional way of bringing people to justice doesn't
apply to these times." 

The idea of using tribunals has been suggested by some
lawyers outside the government as well. 

"It's the most pragmatic way and it's the most legally
correct way to adjudicate terrorist war crimes," said
Spencer J. Crona, a Denver probate lawyer and the co-author
of a 1996 article in the Oklahoma City University Law
Journal arguing the merits of military tribunals to try
terrorists. 

Mr. Crona and his co-author, Neal A. Richardson, a deputy
district attorney in Denver, have continued to promote the
idea, most recently in an opinion article in September in
The Los Angeles Times. Mr. Crona added that terrorists are
not "mere criminals" but enemy agents engaged in war crimes
against Americans. 

But experts in military law said the tribunals would
severely limit the rights of any defendant even beyond
those in military trials. The tribunals, they said, did not
provide for proof of guilt beyond a reasonable doubt and
would not require strict rules of evidence like those in
military and civilian courts. 

"The accused in such a court would have dramatically fewer
rights than a person would in a court- martial," said
Eugene R. Fidell, the president of the National Institute
of Military Justice. 

Mr. Fidell said he expected the order to be challenged in
court, adding, "It establishes a court that departs in
important respects from core aspects of American criminal
justice." 

Mindy Tucker, the Justice Department spokeswoman, said
tribunals would not "preclude any Justice Department
options" but would be an "additional tool." 

"These are obviously extraordinary times and the president
needs to have as many options as possible," Ms. Tucker
said. 

In signing the military order, a highly unusual act by a
president, Mr. Bush invoked his constitutional authority as
commander in chief as well as the resolution authorizing
military force passed by Congress on Sept. 15. Congress has
not passed a formal declaration of war, and military law
experts said one was not necessary for Mr. Bush's order. 

White House officials said that there was precedent for the
military tribunals and that they had been approved by the
Supreme Court, first in 1801. Those accused of plotting the
assassination of Abraham Lincoln were also tried and
convicted by a military court, Bush administration
officials said. 

President Franklin D. Roosevelt, White House officials
said, had German saboteurs tried by a military court in
World War II; six of them were executed. The Supreme Court
upheld the proceeding, saying that people who entered the
United States to wage war were combatants who could be
tried in a military court. 

"What would you do if you caught bin Laden?" one
administration official said tonight. "This is an
additional option that is being provided by this order." 

Administration officials said a long, public trial might
turn Mr. bin Laden into a martyr, and could cause further
terrorism in his name. 

The names of the 5,000 people that the Justice Department
wants to interview were compiled from immigration and State
Department records of people who entered the United States
since Jan. 1, 2000, on tourist, student or business visas.
Only men aged 18 to 33 with these visas who are living in
the United States are on the list. 

The names of the countries whose citizens have been placed
on the list were not made public, but most are Middle
Eastern nations thought to have harbored followers of Mr.
bin Laden or to have been used by Al Qaeda as a staging
base for activities in the United States. 

Ms. Tucker, the Justice Department spokeswoman, said she
hoped some of the men would help the government thwart
further attacks. 

The Council on American-Islamic Relations, an Islamic
advocacy group based in Washington, expressed concern about
the plan and said the government should publish guidelines
for these interviews, including the right of those being
interviewed to have legal representation. 

"This type of sweeping investigation carries with it the
potential to create the impression that interviewees are
being singled out because of their race, ethnicity or
religion," said Nihad Awad, the group's executive director.


On Capitol Hill, the issue of who is entering the country
illegally was in the forefront today, with senators sharply
questioning a senior official of the Immigration and
Naturalization Service who acknowledged that immigration
agents were not required to conduct criminal background
checks on immigrants caught crossing the border illegally. 

The official, Michael A. Pearson, the executive associate
commissioner for field operations, said agents could use
their discretion as to whether such a person should be
detained or let go pending further action. 

Mr. Pearson said that 12,338 undocumented immigrants were
arrested for illegal entry along the nation's northern
border in the last fiscal year, and that two-thirds of them
agreed to return voluntarily to their home countries. But
he was not able to account for the 4,400 people who did not
choose to return home voluntarily. 

Senator Carl Levin, a Michigan Democrat and chairman of the
Senate's permanent subcommittee on investigations,
responded, "I find that disturbing, to put it mildly." 

Questioned by Senator Susan Collins, Republican of Maine,
Mr. Pearson said it was true that the I.N.S. had no ability
to verify that illegal immigrants who were let go but told
to leave the country actually did leave. 

Ms. Collins replied, "If there's no system for checking if
the individual has actually left in the 30 days as
promised, isn't it likely they are not leaving?" 

Mr. Pearson said, "That could certainly be the
case."

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