Military

DATE=December 13, 2001

TYPE=Dateline

NUMBER=7-35678

TITLE=Military Tribunals

BYLINE=Carol Castiel

TELEPHONE=(202) 619-1101

DATELINE=Washington

EDITOR=Neal Lavon

CONTENT=

INTRO: Last month, President Bush issued an executive order establishing military tribunals to try non-Americans suspected of terrorism. The administration says the tribunals are a vital tool in the fight against terrorism. But, critics contend they sweep aside constitutional protections and undermine the rule of law. This edition of Dateline examines the controversy of military tribunals. Here's Carol Castiel.

TAPE: SOUND OF MILITARY TRIBUNAL, :20, UNDER FOR:

CC: The military tribunal created in the play, The Caine Mutiny may become a reality in the near future. The creation of military tribunals is the latest and boldest measure in a series of laws and revised federal regulations that have created an alternate system of justice in the aftermath of September 11th. President Bush dramatically defended the executive order during a visit to Orlando, Florida earlier this month. He raised this issue himself before a crowd of more than 4,000 people.

TAPE: CUT #1 BUSH ACT :20

"Why are you having the opportunity to have a military tribunal? Now I want you to remember that we are at war. The United States of America is under attack and at war, the President needs to have the capacity to protect the national security interests and the safety of the American people."

CC: Opinion polls indicate President Bush has overwhelming support public support in the creation of military tribunals. In testimony before the Senate Judiciary Committee last week, Attorney General John Ashcroft underscored the legal and historical precedent for establishing military tribunals to try unlawful combatants suspected of terrorism.

TAPE: CUT # 2 ASHCROFT ACT, :53

"The President's authority to establish war crimes commissions arises out of his power as Commander in Chief. For centuries Congress has recognized this authority. And the Supreme Court has never held that any Congress may limit it. In accordance with over 200 years of historical and legal precedent, the executive branch is now exercising its core constitutional powers in the interest in saving the lives of Americans. I trust that Congress will respect the proper limits of executive branch consultation that I am duty-bound to uphold. I trust as well that Congress will respect this President's authority to wage war on terrorism and to defend our nation and its citizens with all the power vested in him by the Constitution and entrusted to him by the American people."

CC: Despite the attorney general's, plea and the broad popular support, many groups have raised serious questions not only about the military tribunals but also about the unilateral nature of the decree. Members of Congress from both political parties, constitutional scholars, and civil libertarians have criticized President Bush for not consulting with Congress in advance on the creation of military tribunals. In addition, staunch defenders of civil liberties charge that such tribunals would most likely be held in secret, lack an appeal process, and deprive defendants of due process. Many civil libertarians believe our criminal justice system is adequate for the task. One such voice is Robert Levy, a Senior Fellow in Constitutional Studies at the Cato Institute in Washington. Mr. Levy opposes a concentration of power in the executive branch of government implicit in the order.

TAPE: CUT #3, LEVY ACT, :55

"The most foundational elements of our constitution is the separation of powers, the process by which we prevent too much power from being placed in one branch of government. The president and the secretary of defense, if it's not this administration then some successor who has fewer constitutional scruples, can in accordance with the terms of the executive order, really can run roughshod over the bill of rights. So, I am very much in favor of, at a minimum, congressional input that would authorize the use of military tribunals and furthermore some judicial input, I think we need an appellate process. The executive order says that if you lose before the tribunal you have no recourse, except to have either Bush or Secretary of Defense Rumsfeld to overturn the decision. You cannot go to a court to seek any appellate review of the decision. So this is the executive branch serving not only as a prosecutor but also as the lawmaker and as the judge and jury."

CC: As indicated by Mr. Levy, the U.S. Defense Department is charged with setting the rules for the tribunals including how many members will serve on the panel hearing the case, what standard of proof will be needed to convict, and what types of evidence can be considered. The Defense Department is expected to release the rules in the coming weeks. In contrast to Mr. Levy, Major General Michael J. Nardotti Jr., a former Army Judge Advocate and current partner at the Paton Boggs Law firm in Washington D.C., favors military tribunals at this extraordinary moment in history.

TAPE:CUT # 4 NARDOTTI ACT, :28

"I think under the peculiar situation that we are dealing right now in terms of the ongoing war on terrorism, the extraordinary circumstances that we find ourselves in, and the legitimate public safety concerns that would attend to trial in the civilian community as well as issues with respect to the compromise of sensitive intelligence and also issues with respect to evidentiary rules, make this an alternative that is very worth the president's time in considering."

CC: Major General Nardotti believes civil libertarians and members of Congress who want to strike a better balance between security needs and constitutional rights will be heard. He says the debate has already persuaded the administration to modify some aspects of the executive order.

TAPE: CUT #5 NARDOTTI ACT :18

"What the administration has said through various spokesmen since the issuance of that order indicates that some of the more extreme readings of it are being qualified--certainly by all oral statements. And my expectations are that they will qualify it even further when they put out the procedural rules."

CC: For his part, the Cato Institute's Robert Levy would like to see further adjustments.

TAPE: CUT #6 LEVY ACT 1:02

"I would like to see first that the tribunals only apply to the foreigners who are apprehended to be tried on foreign soil-that they not be used here in the United States where we have a criminal justice system that's quite capable of taking care of persons that are apprehended here in the United States if they are here legally. I would also like to see some form of appellate review, preferably through the judicial branch that allows people that have been put before these tribunals some recourse if they claim that the process has been unfair or that the verdict on the merits is incorrect. I'd like to see evidentiary rules that while they may not be a mirror image of the evidentiary rules that apply in criminal courts at least preserve some of the protections against hearsay and self-incrimination. I'd like to see the requirement for a unanimous verdict if somebody is to be put to death. And, I'd like to see if there are to be secret trials, that it has been authorized by some member of the judicial branch-it has not simply been done unilaterally by the executive branch, along with right to counsel by the way and protection against double jeopardy."

CC: It remains to be seen how many of the conditions Robert Levy is seeking will be incorporated by the Defense Department. But Major General Nardotti says many of Mr. Levy's concerns will be taken into consideration, particularly with respect to secret proceedings and the death penalty. The order currently says two-thirds of the panel members could impose a death sentence on the accused. Major Nardotti believes that provision is likely to be revised to a unanimous verdict.

TAPE: CUT #7 NARDOTTI ACT :35

"I understand the concerns others have and I think there are certain aspects of the order on its face that are troublingI think they have been qualified by the administration. For instance, the issue of secret proceedingsit's gonna be more in the other direction in that the proceedings will generally be open and then you close them to the degree necessary to accommodate the security concerns. I am sure that there is very vigorous debate going on now within the Department of Defense to adopt unanimous standards with respect to the death penalty. If you're not able to achieve that unanimity then you could not impose the death penalty."

CC: Constitutional scholars, civil liberties groups and members of Congress have all, in varying degrees, challenged President Bush's executive order establishing military tribunals. However, analysts say the vigorous public debate that has preceded the drafting of the rules governing these tribunals can only have a positive impact on that very sensitive and critical process. For Dateline, I'm Carol Castiel.