[And now, after the UK published its Anti-terrorism bill today, the USversion.  John.]
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November 14, 2001

http://www.nytimes.com/2001/11/14/national/14DETA.html?todaysheadlines

Bush to Subject Terrorism Suspects to Military Trials

By ELISABETH BUMILLER and DAVID JOHNSTON

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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