Bush Order for Military Tribunals Gets Several Thumbs Down

WASHINGTON —  President Bush’s executive order authorizing special military tribunals to try suspected terrorists was sharply criticized Wednesday by legal experts who said it flies in the face of world opinion, international law and American standards of justice.

“This is a serious mistake. He chose the worst of the available options,” Harvard law professor Anne-Marie Slaughter said. “We are fighting to bring these terrorists to justice, but this is not what we have traditionally called justice, and the rest of the world will not perceive it as justice.”

Though details of the panels’ operations remain unclear, the tribunals will be permitted to operate in secret and won’t have set rules. Bush’s order charges Defense Secretary Donald H. Rumsfeld with establishing how the tribunals will be set up.

“This may be convenient, but I don’t believe it is a good option,” said Duke University law professor Scott Silliman, a former Air Force attorney and expert on the military justice system. “We can have secret trials, but I think we will lose more than we gain if we do that. It would be a step back for American criminal justice.”

He stressed that the newly authorized “military commissions” would not be the same as the military courts that hear cases involving members of the armed services under the Uniform Code of Military Justice. Those courts, he said, have well-established rules.

Fewer Safeguards

In the military tribunals, “the secretary can prescribe the rules and set a low standard for proof, for example,” Silliman said.

But administration officials stood firm behind the president’s plan. They stressed that only “noncitizens” are covered by the president’s order. And they said again that the tribunals would be used to try suspected terrorists captured overseas. But the administration officials also included those arrested in the United States, which would be considered unconstitutional by some experts.

“The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women and children, is not a lawful combatant,” Vice President Dick Cheney said Wednesday in remarks to the U.S. Chamber of Commerce in Washington. “They don’t deserve to be treated as a prisoner of war. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process. . . . We think it guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve.”

The president’s plan earned support from some legal experts, who said it offered the best option for trying scores of international terrorists.

“The problem is we don’t have a good place to try the people we capture,” said American University law professor Paul Williams, a former State Department legal advisor.

The United States has not joined the International Criminal Court, established by the United Nations to prosecute war crimes, in part because of fears that Americans could face trial there as well. “And it would take years to set up a special international court on terrorism,” Williams said.

A trial for Al Qaeda terrorists in a U.S. criminal court poses other problems, Williams said. “How are you going to find 12 unbiased New Yorkers?”

Tribunal ‘More Flexible’

And beyond the concerns involving a single trial, he added, imagine the problem if U.S. forces capture hundreds, perhaps thousands of fighters in Afghanistan and elsewhere who are part of the terrorist network. “Our courts are not set up to process thousands of cases like that.”

Williams said he believes that American officials would attempt to arrange trials in Pakistan that might have two or three Pakistanis as judges, along with several Americans. “A military tribunal is not necessarily better, but it is a more flexible and practical option for a situation like this. The fundamentalists [in the Arab world] are not going to be convinced it’s fair, but they will see it as unfair no matter what we do.”

However, Williams joined critics in saying the administration cannot use these new tribunals to try suspects who are arrested in the United States.

“The Supreme Court has been very clear on that. If something happens here, the U.S. Constitution applies,” he said.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) also questioned whether the president has the legal authority to conduct military trials of people arrested in the United States.

The only 20th century precedent for such secret military trials came during World War II, when Nazi Germany landed eight saboteurs on the East Coast. They were captured and tried in a trial held at the Justice Department; most of them were executed. The Supreme Court described the Nazis as “enemy combatants” in upholding their convictions and death sentences.

‘Kangaroo Court’

Since then, most lawyers have assumed that these secret military trials are limited to combatants during wartime.

Leahy said suspected terrorists who are arrested here should be tried in U.S. courts.

Critics of the president’s call for military courts noted that former Panamanian dictator Manuel Noriega, the perpetrators of the 1993 World Trade Center bombing and Oklahoma City bomber Timothy J. McVeigh were all tried and convicted in U.S. courts.

“The way I read this, when the president points a finger at someone and says he is a ‘terrorist,’ that person goes before a military commission and Donald Rumsfeld sets the rules,” said Elisa Massamino of the Lawyers Committee for Human Rights. “This will be seen as a kangaroo court. We are struggling with international opinion to say this is a just war, and this has a great potential to backfire against us.”

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Times staff writers Edwin Chen and James Gerstenzang contributed to this report.