November 15, 2001 The New York Times

Senior Administration Officials Defend Military Tribunals
for Terrorist Suspects

By ELISABETH BUMILLER and STEVEN LEE MYERS

WASHINGTON, Nov. 14 ó Top administration officials today
defended a presidential order allowing military tribunals to
try foreigners charged with terrorism as the Pentagon
prepared for the potential transfer of immigrants detained
by the Justice Department into military custody.

A senior administration official said that it was possible
that immigrants held in the United States by the Justice
Department in connection with the Sept. 11 attacks would be
tried by military tribunal. Those trials could take place
outside the United States or even on ships, the official
said.

The order, signed by President Bush on Tuesday, gives the
government sweeping powers to secretly and aggressively
prosecute suspected foreign terrorists both here and abroad.

Justice Department officials have repeatedly refused to
disclose the identities of those immigrants held or the
charges against them. Justice officials said late last month
that the total number of people detained ó including many
who have since been released ó had surpassed 1,000, but this
month officials said that they would no longer release a
running tally.

"I had no idea they were going to try to use it for
domestically detained people," said Kevin Ernst, a Detroit
lawyer representing Farouk Ali-Hamoud, who was arrested for
fraudulent immigration documents and held for 25 days in the
Wayne County Jail before his case was dismissed last
month. "It scares the hell out of me, I'll tell you that."

Vice President Dick Cheney defended Mr. Bush's order today,
saying that terrorists were not lawful combatants and did
not deserve the safeguards of traditional American
jurisprudence.

"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
ó men, women and children ó is not a lawful combatant,"
Mr. Cheney said.

"They don't deserve to be treated as a prisoner of war," he
added. "They don't deserve the same guarantees and
safeguards that would be used for an American citizen going
through the normal judicial process."

While the vice president assured his audience that the
terrorist suspects would have "a fair trial," he suggested
that they did not deserve one with the same protections
afforded American citizens. A military tribunal, he said,
"guarantees that we'll have the kind of treatment of these
individuals that we believe they deserve."

He spoke favorably of World War II saboteurs being "executed
in relatively rapid order" under military tribunals set up
by President Franklin D.  Roosevelt. And he cited an earlier
precedent, noting, "This is the way we dealt with the people
who assassinated Abraham Lincoln and tried to assassinate
part of the Cabinet back in 1865." Mr. Cheney, who was
responding to a question after a speech at the United States
Chamber of Commerce, was the most senior White House
official to explain the rationale behind the president's
order. Mr. Bush, who was at his ranch in Crawford, Tex.,
with President Vladimir Putin of Russia, has not spoken
publicly about it.

The order continued to prompt an outcry from civil
libertarians, who noted that military tribunals have not
been used in this country since World War II. Laura
W. Murphy, the director of the American Civil Liberties
Union's National Office, said that the organization was
"deeply disturbed" by the order and called on Congress to
exercise oversight powers before the "Bill of Rights in
America is distorted beyond recognition."

Bush administration officials said today that they first
considered the idea of military tribunals about a week after
the Sept. 11 attacks. Officials said that a debate then
ensued between the Pentagon and Justice Department over who
should determine who is a suspected terrorist and therefore
subject to trial by tribunal.

Finally, officials said, it was Mr. Bush who insisted that
he, not Secretary of Defense Donald H. Rumsfeld or Attorney
General John Ashcroft, be given that power.

Administration officials said that the Pentagon and Justice
Department were preparing today for the possibility of
moving some detainees to military custody, examining such
details as where the detainees might be held and how many
judges would sit on any tribunal.

"They are researching, preparing and looking at the
administrative procedures that would have to be followed to
take into custody a suspected terrorist held by justice," an
administration official said.

The idea of military tribunals came to the attention of the
White House via William P. Barr, a former attorney general
in the first Bush administration, who first conceived of
them as a way to try the two men charged with blowing up a
Pan Am jetliner over Lockerbie, Scotland, in 1988.

In the preparations for that trial, Mr. Barr was the chief
of the Justice Department's office of legal counsel. In an
odd twist, that office also happened to occupy the same
suite where the World War II saboteurs were secretly tried
under Roosevelt ó memorialized today by a plaque on the
wall.  "It's part of the lore of that office," Mr. Barr
said.

Scotland, which does not have the death penalty, was not
interested in joining with the United States in military
tribunals, Mr. Barr said, so the idea was dropped. But
shortly after the Sept. 11 attacks, Mr. Barr contacted
senior officials at both the White House and the Justice
Department, suggesting they might take a look at the old
files.

"All I did was remind them about it," Mr. Barr said. "The
idea sells itself."  This time people were very interested,
particularly as they faced the prospect of what to do should
Osama bin Laden or his associates in Al Qaeda be
captured. Administration officials have said they did not
want a long, public American trial of Mr. bin Laden that
could turn him into a martyr or cause further terrorism in
his name.

In the weeks after Sept. 11, officials at the Pentagon and
Justice and State Departments worked on a draft of the
president's order. Late last week, officials said, the draft
began circulating. On Tuesday, the president signed it.

Experts in military law say the tribunals would severely
limit the rights of a defendant even beyond those in
military trials, and said that the tribunals did not provide
for proof of guilt beyond a reasonable doubt.

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