THE WASHINGTON POST -- 2001
    
    post_digest_2001.txt

    http://www.washingtonpost.com/

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December 30, 2001; Page B2

VENGEANCE DID NOT DELIVER JUSTICE

By Stephen B. Ives Jr.

The president has declared that the United States is free to try terrorist
leaders in U.S. military courts abroad. The proposal brings memories of just
such a trial, held in similar circumstances more than half a century ago, that
still stands as a sobering reminder of injustices perpetrated in the name of
"victor's justice."

Those pressing for military tribunals today should recall the fate of Gen.
Tomoyuki Yamashita, commander of Japanese forces in the Philippines, who was
railroaded to the gallows in Manila in February 1946 after a trial that mocked
our standards of judicial fairness. The case does not prove that all military
tribunals are unfair. But it does highlight their susceptibility to abuse,
especially at the end of a war, when the winners are eager for revenge and
scapegoats are readily available.

Yamashita, known as the "Tiger of Malaya" for his lightning capture of Singapore
from the rear, was one of a very few Japanese senior officers well known in the
United States. He was in U.S. custody after having surrendered on the main
Philippine island of Luzon on Sept. 3, 1945 and was therefore on hand for a
quick, high-profile indictment designed to punish someone for the horrific
atrocities committed by Japanese forces during the war. The entire process of
his trial was marked by pressure from Gen. Douglas MacArthur, Supreme Commander
for the Allied Powers in Japan and the liberator of the Philippines, who
intervened repeatedly to urge a speedy conviction. The actual trial began less
than eight weeks after Japan's surrender and well before organization of the
more formal Tokyo War Trials Commission.

As the responsible Japanese Order of Battle officer in the G-2 section of the
U.S. Sixth Army -- a job that entailed identifying enemy military units and
analyzing their movements and continuing fighting capability -- I had followed
the Japanese military on Luzon full-time since well before our landing in
January 1945. I was troubled that Yamashita was to be held responsible for
actions I knew he could not possibly have known of or prevented. Moreover, I
knew of nothing that reflected dishonorably on him; he had simply carried out
his assignment in a capable way and at the end of the war had cooperated fully
with the United States in such matters as the surrender of the remnants of his
command.

Before the trial, I told my commanding officer in Japan that I felt I should
offer to help Yamashita's defense team. He advised me strongly not to do so,
saying that the conviction was already settled, that there was nothing I could
do about it and that I would only get myself in trouble. To my continuing
regret, I accepted his advice.

What followed was a predictable travesty of justice. I wasn't there to see it,
but I followed the trial closely from reports and have since researched the
details in sources ranging from J.A. Reel's 1949 "The Trial of General
Yamashita" (Reel was one of Yamashita's U.S. Army-appointed lawyers) and the
U.S. Supreme Court opinions in "In re Yamashita, 327 U.S. 1" (1946) to John
Dower's "Embracing Defeat" and James Webb's historical novel "The Emperor's
General" (both 1999).

The trial was conducted by a court composed of five generals hastily sent from
Washington for that purpose. None had any serious combat command experience. The
chairman had spent the war as chief of the Sixth Service Command, covering
Illinois, Wisconsin and Michigan. None of them was in a position to appreciate
the problems that Yamashita had faced as a field commander. And none had any
legal experience, despite rules requiring some. Yamashita was charged with
violations of "the laws of war" by failing "to control . . . members of his
command . . . permitting them to commit brutal atrocities" (my emphasis).
Hundreds of witnesses described beatings, rapes and group killings, mainly of
Filipino civilians, but without evidence of Yamashita's approval or even
knowledge. In fact, Yamashita's name was rarely mentioned during most of the
trial.

The trial evidence even failed to establish that the atrocities were carried out
by military personnel under Yamashita's control or, in key cases, under his
command. Nor was there any recognition of the orders that he had issued
specifically to prevent them. What constituted his "permitting" the acts was not
made clear. The theory was simply that he was in command and must suffer for
whatever any of his people did -- a theory that would make Gen. William
Westmoreland a criminal responsible for the excesses of Lt. William Calley at My
Lai during the Vietnam War. The principle was quite different later at
Nuremberg, after World War II, where the prosecution took pains to tie each of
the defendants at least to knowledge of the atrocities or the Nazi policies that
sired them.

Most of the atrocities described to the tribunal were committed during the
bloody battle for Manila in February-March 1945. Before that fight, Yamashita
had ordered all forces under him to withdraw from the city. The Japanese army
units did withdraw to the mountains to the east, but the Japanese navy flatly
refused to obey, citing prior naval directives and the fact that the only power
that Tokyo had given Yamashita over naval forces was limited to "tactical"
matters. The naval forces that committed the atrocities in Manila were patently
under neither his control nor his command. The other atrocities cited were
perpetrated late in the campaign by army forces in southern Luzon, long after
Yamashita had retreated with most of his army into the mountains of the northern
part of the island. The southern forces were isolated, often stragglers, and
completely out of touch with Yamashita's headquarters, more than 150 U.S.-
occupied miles to the north. Despite these facts, the trial continued
relentlessly toward conviction. Many observers at the time were convinced that
Yamashita would never get a fair trial. A British correspondent reported,
"Yamashita's trial continued today -- but it isn't a trial. I doubt that it is
even a hearing. Yesterday his name was mentioned once. Today, it wasn't brought
up at all." Newsweek reported that "in the opinion of probably every
correspondent covering the trial, the military commission came into the
courtroom the first day with the decision already in its collective pocket."

The court's effort to finish quickly was clear from the start. Yamashita's
appointed American lawyers had only three weeks from presentation of the charges
against him to consult with their client and prepare for a trial in which the
prosecution offered hundreds of witnesses. The defense had no access to the
Army's investigative reports, which might have revealed exculpatory materials.
On the Friday preceding the Monday opening of trial, the court permitted the
prosecutors to add 59 new specifications to the 64 that had been filed only
three weeks before, but with no time extension for the defense to investigate
them. The trial was held six days a week, including some evening sessions. At
one point the court agreed to provide the defense a short continuance, but it
soon reversed that decision and refused all further requests for delays.

The judges clearly did not understand the adversary trial process. They admitted
the rankest hearsay. When the defense did have a chance to rebut, much of the
hearsay proved wrong. After initially deciding that affidavits were not
admissible, the court soon reversed that decision as well, evidently because the
prosecution needed these untested statements. Cross-examination was cut "as a
means of saving time." At the end of the trial, the judges announced that they
would render their decision in 46 hours; they met that schedule. After the
sentencing, Yamashita's counsel asked the U.S. Supreme Court to intervene. In a
6-to-2 decision, it refused, saying that the trial's mode of conduct was not
reviewable by courts, but only by military authorities. Justices Frank Murphy
and Wiley Rutledge filed ringing dissents that rehearsed with great specificity
the tribunal's failure to provide a fair trial and rebutted the theory on which
Yamashita was tried. Murphy concluded: "By this flexible method a victorious
nation may convict and execute any and all leaders of a vanquished foe,
depending on the prevailing degree of vengeance and the absence of any objective
judicial review."

MacArthur approved the sentence and Yamashita's hanging without even waiting to
read the Supreme Court decision.

It is clear that the military tribunal rammed through a conviction at
MacArthur's prodding, the desire for a high-profile conviction in connection
with Japanese wartime atrocities outweighing regard for even elementary rules of
fairness. One motive was surely vengeance, but it seems clear that the
conviction was primarily designed to reduce pressure to try the Emperor. Either
way, this prior objective led the U.S. military to reach a political, rather
than legal, decision (although, unlike the tribunals now under consideration,
Yamashita's trial was public and gave him, if only within the military
hierarchy, a right of appeal).

The Yamashita case is a cautionary tale against the wisdom of victors holding
military trials when their people are crying out for revenge. We can't undo what
happened. But by drawing attention to this miscarriage of justice, we can
perhaps prevent its repetition. The star-chamber atmosphere of secret military
tribunals does not represent the legal tradition that has long been at the heart
of our society. To the extent that America has earned the world's respect, its
sense of fairness and justice has played a big part. Let's not bring that into
question now.

[ Stephen Ives Jr. received the Bronze Star for his work analyzing Japanese
forces on Luzon in 1945. He later practiced law in Providence, R.I., and
Washington, and also served in senior positions at USAID. ]

* * *


December 29, 2001; Page A8

BUSH CALLS DRAFT ON TRIBUNALS 'PRELIMINARY'

By Charles Lane, Washington Post Staff Writer

President Bush yesterday played down reports that a draft proposal for anti-
terrorism military commissions would include protections for defendants' rights,
and expressed exasperation with unnamed officials who gave the press the details
-- even as initial reactions to the reported draft suggested that it was
yielding political benefits to the administration.

The draft, described to The Washington Post by an administration official as
"pretty close" to a final version, was branded "preliminary" by Bush at a news
conference at his Crawford, Tex., ranch. "They're still in discussions about how
best to bring justice," Bush added.

Bush said Defense Secretary Donald H. Rumsfeld, who must approve any final plan
for the commissions, told him that he has not yet seen the draft. Bush blamed
the leak on "somebody in our government who wanted to show off to his family, or
her family, in between Christmas and New Year's by leaking information that he
or she thought would be helpful to the government."

However, legal analysts suggested that the draft was serving to blunt criticism
of Bush's proposed commissions, which he authorized in a military order on Nov.
13. The order's assertion that "given the danger . . . it is not practicable to
apply in military commissions . . . the principles of law and the rules of
evidence" that apply in federal courts had prompted sharp questions about the
commissions' potential unfairness and secrecy from human rights organizations,
media commentators and some members of Congress.

The debate seemed to peak at a confrontational Dec. 6 hearing in which
Democratic members of the Senate Judiciary Committee grilled Attorney General
John D. Ashcroft on the commissions -- and Ashcroft suggested that unnamed
critics of the administration's anti-terror policies were providing "ammunition"
to terrorists.

But as outlined in the draft, the commissions could impose the death penalty
only with a unanimous vote, would operate largely in public and would presume
alleged terrorists innocent unless they are proven guilty beyond a reasonable
doubt -- the same demanding standard of proof that applies in civilian courts.
There is also to be a right of appeal, although the mechanism has not been
settled.

"I'm not sure what the remaining concerns are. This comes very close to looking
like a court," said Michael Glennon, a specialist in constitutional law at the
University of California at Davis. "The level of protection to be afforded
defendants is probably greater than in most courts in the world."

Skeptics of the plan continued to emphasize aspects of the draft procedures that
seem to depart from the rules that apply in civilian trials or in trials of
American service personnel before courts martial.

They noted that, by admitting hearsay evidence -- defined as any statement made
out of court that purports to establish a factual assertion -- the draft
procedures undercut their own guarantee that defendants will have the right to
confront witnesses.

An example of hearsay evidence that might be admitted by a military commission
is the captured videotape in which Osama bin Laden describes the planning of the
Sept. 11 attacks.

"It's still less procedurally fair than in civilian courts," said Irwin
Schwartz, president of the National Association of Criminal Defense Lawyers.

Others say the administration continues to fashion the commissions without
seeking a declaration of war or other statutory authorization from Congress, or
even consulting Capitol Hill informally.

"They're floating on thin separation-of-powers ice," said Laurence Tribe, a
professor of constitutional law at Harvard. Tribe suggested that any military
appeals procedure whose decisions are not subject to review by an independent
civilian court -- and, ultimately, by the Supreme Court -- could be challenged
in a habeas corpus petition.

Tribe noted that Bush is both the commander in chief of military lawyers and
judges and, under the Nov. 13 order, the authority who decides whom to
prosecute.

However, supporters of the commissions said such concerns were unfounded even
before the draft procedures were written because the president, as commander in
chief, was empowered to take all steps necessary to defend the country from
attack. Now that the draft has been publicized, they argued, the critics will
lose all political momentum, especially in the light of polls showing
substantial public support for Bush's approach.

A key step in the development of the commissions appears to have been Rumsfeld's
decision to ask for advice not only from the White House, the Pentagon and
Ashcroft's Justice Department, but also from a select group of centrist senior
lawyers who have served in top positions in both Democratic and Republican
administrations -- and who, in several cases, are trusted friends of the defense
secretary.

"He wanted graybeards who've been around the track and who are at a stage of
life where they are not trying to make any points," one of those advisers said.
"He said, 'I don't want you to tell me what you think I want to hear. I want you
to tell me what you think.' "

* * *


December 28, 2001; Page A1

TERRORISM TRIBUNAL RIGHTS ARE EXPANDED
Draft Specifies Appeals, Unanimity On Death Penalty

By Charles Lane, Washington Post Staff Writer

International terrorism suspects brought before U.S. military commissions would
be presumed innocent until proven guilty beyond a reasonable doubt, could be
sentenced to death only by a unanimous vote of the commissions' members and
would have the right to an appeal, according to draft procedures for the
commissions.

The proposal, which is circulating among legal officials in the Bush
administration, reflects the current thinking of Pentagon lawyers about how to
prosecute captured suspects. They could include the growing number of alleged al
Qaeda and Taliban members held by U.S. forces, including 37 at a Marine base in
Afghanistan and eight aboard the USS Peleliu in the Arabian Sea.

Defense Secretary Donald H. Rumsfeld said yesterday that the Pentagon is
planning to transfer such detainees to the U.S. naval base at Guantanamo Bay,
Cuba. He said that the base would not be ready for a number of weeks, however,
and that there are no plans yet to hold commission proceedings there.

The draft does not include definitive language on some major issues, including
exactly how, and in what forum, appeals would be heard, an administration
official said yesterday. Rumsfeld must approve any final proposal. The
procedures are being developed by the Defense Department's general counsel in
consultation with the White House, the State Department, the Justice Department
and outside experts. A Pentagon spokeswoman declined to comment on the process.
Still, the draft -- major portions of which were read to The Post by an
administration official -- provides the most detailed indication yet of the
administration's plans for the commissions. It also appears to address questions
about their fairness and openness that have been raised by human rights
organizations and members of Congress since President Bush authorized the
commissions in a Nov. 13 military order. One administration official described
the draft language as "pretty close" to final.

"Assuming that the final regulations look like [the draft], it would go a
considerable distance toward meeting the concerns that have been voiced," said
Eugene R. Fidell, president of the National Institute of Military Justice, which
has taken no position on the commissions. "That said, big legal issues remain,
such as the precise parameters of the appeals process."

The U.S. government has not yet designated anyone to stand trial before a
military commission, authorized under Bush's order for any non-U.S. citizen whom
the president determines "there is reason to believe" belongs to Osama bin
Laden's al Qaeda network or is otherwise involved in international terrorism
aimed at the United States. John Walker, a U.S. citizen and Taliban fighter
being held aboard the USS Peleliu, would not be covered and could face a
civilian trial.

Among the most sharply criticized aspects of Bush's Nov. 13 order were the
provisions that permitted sentencing -- including the application of the death
penalty -- by "only" a two-thirds vote of a commission and that denied a right
to appeal in "any" court.

But in the draft procedures, those parts of Bush's order have apparently been
interpreted as allowing room for a unanimous vote on capital punishment and for
appeals to what an administration official called "an appeals body." One idea
under discussion is to create a separate military review panel that would not
technically be a court, a person familiar with the administration's
deliberations said.

The draft says trials before the commissions will be presumed open to the public
and the news media and can be closed only when a commission decides it must hear
classified material.

Defendants would have a right to a military lawyer at government expense and may
hire their own civilian lawyers if they choose -- though civilian lawyers would
need special government clearances to handle classified evidence. Defendants may
see the evidence against them, cross-examine prosecution witnesses and present
witnesses of their own. They will also enjoy a right not to testify.

These rules would be broadly similar to those used in the U.S. military's own
courts martial, though the commissions could still admit hearsay evidence, which
is normally barred in both civilian trials and courts martial.

Public opinion polls have shown widespread support for the commissions, but the
expansive wording of Bush's Nov. 13 order prompted concerns among civil
libertarians and many legal experts that the president had assumed broad new
prosecutorial authority without any specific authorization from Congress.

Administration officials have consistently defended the president's order,
noting that he was empowered to prosecute an armed conflict by a joint
congressional resolution, and that the ordinary methods of criminal prosecution
could not be counted on to handle the extraordinary threat posed by the foreign-
based terrorist network that destroyed the World Trade Center and badly damaged
the Pentagon. "Are we supposed to read [terror suspects] their Miranda rights,
hire a flamboyant defense lawyer, bring them back to the United States to create
a new cable network of 'Osama TV,' provide a worldwide platform for propaganda?"
Attorney General John D. Ashcroft said during a recent hearing before the Senate
Judiciary Committee.

At the same time, members of the administration have sent signals seemingly
aimed at soothing its critics. White House Counsel Alberto R. Gonzales told a
gathering of the American Bar Association that "despite the broad language in
the military order, which talks about cutting off other avenues of court
proceedings for commission defendants, we fully contemplate that habeas [corpus]
review will be available" for defendants arrested, detained or tried in the
United States -- though not for those outside the country.

Rumsfeld called the heated debate over civil liberties "useful." He asked a
group of veteran lawyers to advise him on how to construct the commissions.
These advisers include former CIA and FBI director William H. Webster; Griffin
B. Bell, President Jimmy Carter's attorney general; William T. Coleman,
President Gerald R. Ford's transportation secretary; and Lloyd N. Cutler,
President Bill Clinton's White House counsel.

An administration official said yesterday that the draft procedures do not
represent a concession to the critics. "The president wanted them to be full and
fair trials, and this does that," the official said.

But another person familiar with the legal consultations over the commissions
said that "the debate in Congress and the press has been a very wholesome thing,
and I hope and expect the procedures will be responsive to that."

Sources familiar with the draft procedures said they may reflect the input of
the military's own lawyers, known as judge advocates general, who have a strong
personal stake in preserving the legitimacy of military justice.

"Uniformed lawyers are anxious to become involved, both as prosecutors and
defense attorneys," Fidell said. "There will be no shortage of volunteers."

[ Staff writer Vernon Loeb contributed to this report. ]

* * *


December 20, 2001; Page A25

WALKER'S CASE POSES NOVEL LEGAL ISSUES
Taliban Suspect's Detainment Overlaps Geneva Convention, Fifth Amendment

By Charles Lane, Washington Post Staff Writer

The U.S. military has the right to interrogate detained American al Qaeda
suspect John Walker without a lawyer present, but any information it gathers may
not be admissible against him in a criminal case later, legal analysts said
yesterday.

Under the Geneva Convention, U.S. personnel can ask a captured enemy combatant
anything they want as long as they refrain from intimidation or coercion,
analysts said. But the Fifth Amendment, as interpreted by the Supreme Court in
the famous Miranda case, might keep his statements out of court unless Walker,
now held on board the USS Peleliu, was informed of his right to have a lawyer
present and knowingly waived it.

"Miranda probably kicks in around the time he was transferred to the ship, which
is U.S. territory," said professor William Stuntz of Harvard Law School, an
expert on criminal procedure. "If he invoked it and they don't give him a
lawyer, the government is running some risk."

Walker, 20, who has said he converted to Islam at 16 and later made his way from
California to Osama bin Laden's training camps in Afghanistan, faces possible
charges up to and including treason, which carries the death penalty.

Yet his case poses novel legal issues in part because it falls on both sides of
the line that separates military action from criminal law enforcement.

It is unclear whether Walker has been read the familiar "right to remain silent"
warning required by Miranda rights or, if so, what response he made. A lawyer
hired by his parents, James Brosnahan of San Francisco, has been demanding
access to Walker, so far without success.

Earlier this week, Brosnahan issued a brief statement expressing disappointment
that Walker's parents had not been allowed to meet with their son and suggesting
that Walker had an immediate right to counsel.

"He has now been held in custody and reportedly subject to ongoing
interrogations by various government agents for 16 days without any access to an
attorney and without the ability to communicate with his family," Brosnahan
said.

The issue of Walker's rights came up at yesterday's White House media briefing
as reporters asked press secretary Ari Fleischer how a U.S. citizen in obvious
legal jeopardy could be held in custody for so long without seeing a lawyer.
Citing the logistical difficulties of finding lawyers in a faraway country
during war, Fleischer said President Bush "is more than satisfied that all
rights are being fulfilled and that the Department of Defense and the attorney
general are doing the appropriate thing in accordance with the Constitution and
given the on-the-ground practicalities and realities of the situation with Mr.
Walker."

Insofar as Walker is a detained enemy combatant, the Geneva Convention gives his
U.S. military captors the right to ask him anything as long as they refrain from
intimidation or coercion, analysts said. Walker is not required to provide
anything but name, rank and serial number -- to the extent such terms apply to
an irregular force such as al Qaeda -- but not forbidden to say more.

As a "battlefield detainee," the term the Bush administration has used to
describe Walker, "he has no more right to a lawyer than any other al Qaeda
member," said Ruth Wedgwood, a Yale Law School professor who specializes in
international law. Such information could be used in military commissions that
might try other terrorism suspects, Wedgwood added.

But as a citizen, Walker cannot be tried by a military commission because Bush's
order establishing such commissions excludes American citizens. And once the
government prosecutes him in federal court, his lawyers could move to suppress
all or part of his statements since his arrest.

Whether they would win that argument in court is another matter. The courts have
sometimes recognized exceptions to defendants' rights against self-incrimination
or unwarranted searches in cases where the government can claim a special need
or emergency.

In a 1984 case, the Supreme Court held that New York police officers did not
need to read a suspect his rights when asking him where he had hidden a gun
because the situation posed an imminent danger to public safety. U.S. officials
could argue that the danger posed by lingering al Qaeda forces, possibly armed
with weapons of mass destruction, raised the ultimate threat to public safety,
obviating the need to read Walker his rights.

But Walker is now far away from the battlefield, making the threat to the forces
who detain him more remote and their need for swift, emergency questioning less
pressing.

"There'd be a healthy brief on that on both sides," a Justice Department
official said. "You'd need the Supreme Court to decide that."

A New York federal district judge ruled last year in the case of Wadih el-Hage,
a U.S. citizen and alleged al Qaeda operative charged in the East Africa embassy
bombings, that U.S. authorities did not need a warrant to search el-Hage's house
in Kenya on the grounds that the search was for intelligence-gathering purposes.
The ruling is being appealed, said Joshua Dratel, el-Hage's lawyer.

"The government holds the high cards [in Walker's case] because the courts are
tolerant of government action for intelligence or national security purposes,"
Dratel said. "There is a large amount of discretion afforded for national
security, particularly outside the U.S."

* * *


December 9, 2001; Page F1

SWIFT AND TERRIBLE
A Military Tribunal Rushed to Convict After Lincoln's Murder

By James H. Johnston, Special to The Washington Post

The Bush administration has cited President Franklin Roosevelt's decision to
court-martial German saboteurs captured after landing in the United States
during World War II as precedent for trying Osama bin Laden before a military
tribunal rather than the trial by jury used to prosecute earlier terrorism
cases. But the most famous case brought before such a tribunal involved those
accused of conspiring to assassinate President Lincoln. What transpired then
offers lessons for today.

At 10:15 p.m. on Good Friday, April 14, actor John Wilkes Booth stepped into Box
7 in the balcony of Ford's Theatre and fired a single shot into the back of the
head of the president. Booth also planned to kill Gen. Ulysses S. Grant, who he
thought would be with Lincoln, but Maj. Henry Rathbone and Clara Harris were
there instead. Booth sliced Rathbone on the arm with a knife, delivered his line
"Sic semper tyrannis," jumped to the stage, breaking his leg, hobbled out a back
door, mounted his horse and rode into Maryland. Lincoln died the next morning.

The public was in shock, grieving and outraged over the assassination. Robert E.
Lee had surrendered at Appomattox only five days earlier. The war that had taken
nearly half a million lives was virtually over. Lincoln, the man most
responsible for victory and the hope for the future, lay dead.

Political and military leaders wanted someone to blame and focused on Booth and
a nest of real and imagined conspirators. After a brief investigation, the
suspects, all civilians, were summarily tried by a special military commission
and found guilty. But the hasty investigation, military trial and callous
treatment of the accused compounded the tragedy of Lincoln's death. As a result,
debate has continued about whether justice was served.

Minutes before Booth entered Box 7, Lewis Payne talked his way into the
Lafayette Square home of Secretary of State William Seward, who was in bed
recovering from a carriage accident. Payne, a handsome but dimwitted giant of a
man, slashed at Seward repeatedly, leaving him permanently disfigured; fractured
the skull of Seward's son Frederick; stabbed a State Department messenger in the
chest; bloodied Seward's male nurse; and wrestled with Seward's son Frank and
daughter Fanny before fleeing.

A third man, George Atzerodt, was supposed to kill Vice President Andrew Johnson
that night. Atzerodt had checked into the Kirkwood House hotel at 12th Street
and Pennsylvania Avenue NW, where Johnson lived, and stashed a knife and gun in
his room. In the evening he went to the hotel bar to muster his courage, but --
as was usually the case with the poor German immigrant -- he never found it. He
left the hotel without accomplishing his mission.

Secretary of War Edwin Stanton had prosecuted the Civil War, and he would
capture and prosecute the people involved in what he saw as a desperate, last-
minute conspiracy to win the war through assassination. Stanton ordered the Army
to seal off Washington. He sent cavalry out to bring in Booth and the others.
And he personally deposed witnesses that very night.

Stanton ordered the police in Washington to launch an investigation. They
quickly made the embarrassing discovery that they had received a tip in February
about Booth and a nest of conspirators. A team of detectives from New York City
came down to help. The result was the wholesale arrest and detention of suspects
and their relatives, of witnesses, bystanders, prostitutes and vagrants, of
anyone else who seemed suspicious, and of the guiltless. So wide-ranging was the
dragnet that the owners of the theater, the three Ford brothers, were imprisoned
merely for knowing Booth, and the actors were told they could not leave the city
without Stanton's permission.

Payne and Atzerodt were found and arrested within days. The cavalry tracked
Booth down to a barn in Virginia on April 26 and set it afire. A soldier saw
Booth inside the burning building and shot the assassin through the neck,
killing him. With Booth dead, the primary suspects in jail and the investigation
complete -- in just over two weeks -- Stanton was ready for a trial. On May 1,
the new president, Andrew Johnson, ordered the War Department to establish a
military commission of nine Union officers to try the remaining conspirators.

The commission, chaired by Gen. David Hunter, began the trial on May 12, less
than a month after the assassination. Two of nine Army officers on the
commission, Gen. Cyrus Comstock and Gen. Horace Porter, expressed their doubts
about the military's authority to try civilians. Both men were replaced for the
stated reason that they were on Grant's staff and might be prejudiced against
defendants who had planned to kill their commander.

Eight defendants, including Payne and Atzerodt, were put on trial. David Herold
held Payne's horse at Seward's house and joined Booth on his flight to Southern
Maryland. In "The Day Lincoln Was Shot," Jim Bishop wrote that Herold "was
twenty-three, looked seventeen, and had the mentality of a boy of eleven."
Middle- aged Mary Surratt was a widow who ran the boardinghouse where Booth and
others hatched the plot. She also owned a tavern in Surrattsville where guns and
other items had been stashed to aid Booth in his escape. Ned Spangler was a
stagehand at Ford's Theatre. He allegedly helped Booth at the theater and then
told a witness not to mention the direction in which Booth fled.

Samuel Mudd was a doctor who once had been introduced to Booth. Booth sought out
Mudd at his home in Bryantown, Md., where the doctor set Booth's broken leg, fed
him, let him rest and sent him on his way. Michael O'Laughlin and Samuel Arnold
participated in two earlier attempts by Booth to capture Lincoln, but neither
was involved in the work of April 14. Mary Surratt's son John was also believed
to have been involved, but he was out of the country.

The cases against Payne and Herold were overwhelming. In addition to
eyewitnesses, the prosecution had admissions from both men. Atzerodt was not
much better off. He was seen in the company of Booth, Payne and Herold on the
day of the assassination and admitted that he had been in league with them in
trying to kidnap the president. However, he denied knowing about a plan to kill
Lincoln and also denied intending to assassinate Johnson.

The decision to try the accused by court-martial, rather than in civilian court,
was Stanton's. During the war, Lincoln had sometimes authorized trial of
civilians at courts-martial. The defendants in these cases routinely mounted
legal challenges to the military's jurisdiction.

Not unexpectedly, one of Surratt's lawyers, U.S. Sen. Reverdy Johnson of
Maryland, opened by arguing that the commission had no jurisdiction. Also not
unexpectedly, the argument was rejected.

Murder of a federal official, including the president, was not a federal crime
then and did not become one until after President Kennedy's assassination in
1963.

The eight were charged with criminal conspiracy to aid the rebellion and to
commit murder. Confederate President Jefferson Davis and other Rebel leaders
were named as accomplices.

The defendants were held in solitary confinement in small cells at Old Arsenal
Penitentiary in the District, where Fort McNair is today. The trial was held
there as well.

Even the battle-hardened military officers of the commission were surprised when
they first saw the eight defendants. Except for Mary Surratt, the prisoners
entered the courtroom wearing canvas hoods, manacles, and balls and chains. They
shuffled and stumbled to their seats with the help of soldiers. Stanton had
issued orders that the prisoners could not communicate with anyone without his
approval.

One of the commission members remarked later that the sight reminded him of the
Inquisition. From then on, while in the courtroom the defendants were freed of
the hoods, but not the manacles and balls and chains.

Few lawyers in Washington had wanted to represent accused assassins, and several
defendants did not have counsel when the trial started. Lawyers for other
defendants agreed to represent them, since the military commission apparently
was prepared to proceed with or without counsel. None of the lawyers was able to
meet with his client before the trial, and any conversation with a client had to
take place in the courtroom.

Surratt was fortunate to get the distinguished Sen. Johnson to represent her. He
had been a pallbearer at Lincoln's funeral. But the senator did not know the
details of the case and his main contribution was his attack on the military
commission's jurisdiction. He left the trial work to associates.

Gen. Thomas Ewing represented Mudd, Arnold and Spangler. Ewing took the case
knowing that such a high-profile defense would help his postwar law practice. He
may also have seen it as a chance to embarrass Stanton, who was in a bitter feud
with Ewing's brother-in-law, war hero Gen. William Sherman.

However, Ewing was not known for being a criminal lawyer.

Prof. Thomas Reed Turner, in his book "Beware the People Weeping: Public Opinion
and the Assassination of Abraham Lincoln," writes: "Contemporaries seemed to
think that most of the defense counsel were doing little more than going through
the motions. William Doster commented that there were no chances at all for
acquittal of his clients Atzerodt and Payne. Herold's defense was not even read
by his attorney, Stone, who was out of the city, but by the court reporter James
Murphy."

The defendants might have counted themselves lucky to have counsel at all,
because the commission started by taking testimony in secret with not even the
defendants present. The purpose was to show that the assassination was the work
of a conspiracy that reached the highest levels in the Confederacy. Stanton
apparently thought such evidence was too explosive to make public. But the
evidence that was introduced, before the secrecy was ended, proved to be wrong.
It was Grant who caused the commission to abandon secrecy. He had been called as
a witness on May 12 to establish the fact that the District of Columbia was
under martial law. Reporters corraled him outside the courtroom to complain
about their exclusion. Grant led them to the White House to talk to the
president.

The proceedings were opened the next day.

The commission heard testimony that Booth was linked to Confederate operatives
in Canada as well as testimony about secret ciphers, a plan to spread yellow
fever through the water supply, and the atrocious treatment of Union soldiers in
the infamous Confederate prison at Andersonville. The prejudicial nature of this
testimony, much of which was unchallenged hearsay, was captured by the Boston
Evening Transcript, which wrote approvingly: "It is now abundantly proved that a
court confined within strictly legal bounds, and never traveling out of the
narrow limits of merely technical investigation, could not have developed the
full extent of the hideous plot."

Not all the defects in the trial can be blamed on Stanton or his decision to
resort to court-martial. The rules of criminal evidence in both military and
civil courts at the time barred defendants from taking the stand in their own
defense. The rationale was, among other things, that defendants would lie if
they were guilty.

This presented problems for counsel who wanted their clients to testify. Doster
was able to read into the record a statement by Atzerodt admitting participation
in the kidnapping plots but not the assassination, and was intended to reinforce
his image as a coward. However, since it was not delivered by Atzerodt himself,
the commission got no sense of the man.

Doster tried to get Payne on the witness stand by arguing that he was insane. If
a proper foundation were laid, a defendant could then take the stand so the jury
could see for itself the alleged insanity. The commission allowed Payne to be
examined by a military doctor, who testified: "I discovered a remarkable lack of
symmetry in the two sides of his head. The left is much more developed than the
right. . . . I could not discover there was any sign of insanity."

The commission heard closing arguments and retired to deliberate on June 29. It
announced its verdict the next day. Payne, Atzerodt, Herold and Surratt were
found guilty of conspiracy to murder Lincoln and to attempt to murder Seward,
Johnson and Grant. They were sentenced to be hanged a week later.

Mudd was saved from the death sentence because a vote by two-thirds of the nine
was required for death. Only five of the required six thought Mudd should die.
And so, he, Arnold, O'Laughlin and Spangler were convicted of lesser crimes and
given prison sentences.

In addition to the verdicts and sentences, five commission members voted to
recommend clemency for Mary Surratt because she was older than the others and
because she was a woman. Unfortunately for Surratt, the clemency recommendation
was not made public but rather was to be communicated privately to the
president. Stanton and Judge Advocate Joseph Holt later claimed they sent the
paperwork. President Johnson claimed he never saw it. And Johnson ignored
clemency appeals from others on Surratt's behalf.

The four condemned were led to the gallows in the yard of Old Arsenal
Penitentiary at 1:15 in the afternoon of July 7, 1865. Mary Surratt became the
first woman put to death by the United States.

A circus atmosphere prevailed outside the prison. After the bodies were taken
down and buried in the prison yard, the hangman cut up the ropes and the gallows
and sold pieces as souvenirs. The crowd munched on cakes and sipped lemonade
from street vendors until late in the afternoon.

In 1867, John Surratt, Mary's son, was found overseas and brought back for trial
in civilian court for participation in the conspiracy. He had first-rate counsel
and a full and fair trial. Surratt seemed at least as complicitous in the
kidnapping plots as Arnold and O'Laughlin, but the prosecution persisted in
trying to establish that Surratt was in Washington on the day of the
assassination. Surratt's lawyers seized on this to discredit the whole case
against their client and proved that he was in Elmira, N.Y., on that day. When
the jury failed to reach a unanimous verdict, John Surratt was set free.

* * *


December 3, 2001; Page A10

LEGAL SCHOLARS CRITICIZE WORDING OF BUSH ORDER
Accused Can Be Detained Indefinitely

By George Lardner Jr., Washington Post Staff Writer

President Bush's order empowering him to initiate military trials for suspected
foreign terrorists also appears to permit the indefinite detention, without
trial, of anyone the president determines is "subject" to the order, according
to constitutional scholars and legal experts who have studied the directive.

Administration officials said Bush does not intend to designate anyone under the
order that he does not think can and should be tried before a military
commission. White House counsel Alberto R. Gonzales said in a New York Times op-
ed column Friday that those taken into custody "must be chargeable with offenses
against the international laws of war, like targeting civilians or hiding in
civilian populations and refusing to bear arms openly."

But the Nov. 13 directive itself does not say that. It allows the president to
order the military detention of any individual the president has "reason to
believe" is or was a member of al Qaeda or who took part in "international
terrorism" directed at the United States or who knowingly harbored such
culprits.

The order then says that "if the individual is to be tried," he or she must be
tried by a military commission using rules and procedures to be designed by the
Pentagon.

"That clearly contemplates holding people without trial," said Harvard law
professor Philip Heymann. "A person is to be detained whether he is to be tried
or not tried."

The White House says that Bush will not certify anyone to be detained under the
order unless that person has "violated a law of war," but the murkiness of the
language in the order is just one example of what some lawyers and Senate
staffers say is exceedingly broad and careless draftsmanship.

"The order is rife with constitutional problems and riddled with flaws," said
Laurence H. Tribe, professor of constitutional law at Harvard. He said its reach
is so sweeping that it could snap up not only terrorist leaders caught overseas
but also any resident immigrant who might have once "knowingly harbored" a past
or present member of al Qaeda or who is "believed" to have "aided or abetted . .
. acts in preparation" for international terrorism.

Tribe pointed out that the order also contains no definition of "international
terrorism," thereby inviting arbitrary and possibly discriminatory decisions
about who is to be tried. Bush's directive also gives the commission
jurisdiction to try people not only for violations of the laws of war but also
for all "other applicable laws."

Even if the president administers the order in limited fashion, as
administration officials have suggested, "it's 'trust me, trust me, trust me,' "
a Senate Democratic staffer protested. "That's not the way we do things."

Administration officials have spoken in terms of trials overseas of senior al
Qaeda leaders and their Taliban collaborators -- a prospect that has met with
widespread approval.

"In order to be fully within the scope of this order, you would have to be
someone who could be tried for committing crimes against the laws of war,
meaning, an enemy belligerent who has engaged in or supported hostilities
against the United States," Assistant Attorney General Michael Chertoff told the
Senate Judiciary Committee on Wednesday. "So that's a fairly high standard, I
would think, and it doesn't apply to people who are in custody for garden-
variety criminal offenses." Gonzales voiced the same theme at an American Bar
Association conference on national security law Friday, dismissing as "totally
unfounded" the idea that ordinary green-card holders could be hauled before
military tribunals for "ordinary crimes." He said the administration was after
"enemy soldiers" -- until reminded that "enemy soldiers" are entitled to the
protections of the Geneva Convention. Gonzales amended himself to describe the
quarry as "unlawful combatants" who are not so protected.

Heymann, a former deputy U.S. attorney general, said he has been struck by the
contrast between the administration's rhetoric and the content of the Nov. 13
order, which he said was drafted "with an appalling carelessness."

Far from being limited to terrorist leaders captured abroad in violation of the
laws of war, Heymann said the order covers 18 million foreign-born, non-U.S.
citizens living in this country, most of them legally.

Under the order, Heymann said, "whenever the president suspects that one of them
may have been a terrorist in the past, or is a terrorist, or has aided a
terrorist, or has harbored a terrorist," even decades ago, the president has the
power to send that person to a trial "before three colonels" who could convict
and sentence on a two-thirds vote.

Another potential problem, Heymann said, is that there is "no law of war, at the
moment, on terrorism."

Under Bush's directive, Secretary of Defense Donald H. Rumsfeld could transfer a
detainee to another government agency for civilian prosecution. But Heymann,
Tribe and Yale-Johns Hopkins law professor Ruth Wedgwood all agreed in
interviews that the order as it stands also permits indefinite detentions
without trial. Tribe called this "very troublesome" unless some judicial review
were provided. Wedgwood said such detentions might be useful although they could
last for a very long time. Prisoners of war and "unprivileged combatants" are
normally released when a war ends, she said, but there may be no end to a war on
terrorism. "This is an 'if tried' order, not a 'when tried' order," Wedgwood
added at the ABA conference. She said it also might be "the better part of
valor" to detain top al Qaeda suspects without trying them, at least until the
conflict has subsided. The question of judicial review offers another contrast
between what the order says and what it has been construed to mean. Borrowing
the words of a 1942 proclamation issued by President Franklin D. Roosevelt in
the case of eight Nazi saboteurs, Bush has decreed that anyone covered by his
order "shall not be privileged to seek any remedy" in any court here or abroad.
In the Nazis' case, the Supreme Court nonetheless agreed to review the
saboteurs' habeas corpus petition challenging their military trial -- and
rejected it, holding their prosecution to be constitutional. Gonzales shorthands
this by saying that "the [Bush] order preserves judicial review in civilian
courts" for anyone arrested or detained in the United States even though the
order itself, like Roosevelt's, says the opposite.

Responding to complaints that Bush's order would permit loose rules of evidence,
lax standards of proof and less than unanimous verdicts, White House and Justice
Department officials are now calling the directive "a first step" and saying the
Pentagon might come out with rules more favorable to defendants. Gonzales has
also said that nothing in Bush's order requires secret trials, and he has hinted
that only portions of the proceedings may have to be closed to protect
classified information.

Despite such possible concessions, Tribe and others say Congress has to step in.
Appealing to courts, Tribe said, won't work because the judiciary has always
been "extremely deferential to the executive in cases of arguable military
emergencies" and anyone who relies on the current Supreme Court for relief is
"whistling in the wind."

Instead of appealing to the international community for support, Tribe said,
Bush's order presents a face that says " 'I am the president and if I suspect
someone of being a terrorist, no one can interfere.' It sounds like an assertion
of dictatorial power, more than it can possibly be. It would be a favor to the
president to have Congress authorize some limited use of military tribunals and
give it the legal force the president wants it to have. If it is circumscribed
by the Pentagon, that is really floating on thin ice."

* * *


November 29, 2001; Page A22

DEMOCRATS BLAST ORDER ON TRIBUNALS
Senators Told Military Trials Fall Under President's Power

By George Lardner Jr., Washington Post Staff Writer

The Bush administration was considering the use of military tribunals to
prosecute suspected foreign terrorists before the passage of a tough new anti-
terrorist law last month but did not tell Congress of the plan because it did
not require legislative action, a top Justice Department official testified
yesterday.

Speaking at a Senate Judiciary Committee hearing called to examine sweeping new
anti-terror policies that some lawmakers have criticized, Assistant Attorney
General Michael Chertoff said military trials fall within the president's power
"as commander in chief."

But Democratic senators at the hearing, led by Chairman Patrick J. Leahy (Vt.),
sharply criticized the Nov. 13 order that empowered Bush to order military
trials for non-U.S. citizens -- and the failure to consult Congress before
issuing the directive and others that are part of the broad anti-terror
campaign. Republican senators, with the exception of Arlen Specter (Pa.), were
highly supportive of the crackdown. Despite the cooperation between the White
House and Congress that led to swift passage of the new anti-terror law, Leahy
said, the administration has since disregarded "the checks and balances that
make up our constitutional framework."

Instead, he said, the executive branch "has chosen to cut out judicial review"
in a new order that allows Attorney General John D. Ashcroft to initiate
monitoring of attorney-client communications of suspected terrorists, "and to
cut out Congress in determining the appropriate tribunal and procedures to try
terrorists." Chertoff, who heads the Justice Department's criminal division,
said he was confident that all the steps taken have been "within carefully
established constitutional limits." Emphasizing the carnage of the Sept. 11
terrorist attacks, he said the suspected mastermind, Osama bin Laden, and
members of his al Qaeda terrorist network have since announced "they will kill
more of us."

"So for those of us who question whether we are at war," Chertoff said, "my
answer is, Mr. Bin Laden has declared war on us. . . . Are we being aggressive
and hard-nosed? You bet. But let me emphasize that every step that we have taken
satisfies the Constitution and federal law as it existed both before and after
September 11th."

Leahy, however, said he was especially dismayed by Bush's order for military
tribunals, voicing fears that it could become a model for use by foreign
governments against Americans overseas. The order allows the Pentagon to set
rules and procedures less rigorous than those that govern U.S. criminal
prosecutions, permits convictions and death sentences on a two-thirds vote and
ostensibly prohibits judicial review of verdicts.

Chertoff said such tribunals had a solid history dating back to the Revolution.

But Leahy pointed to Spain's reluctance to extradite suspects to the United
States if they are to be tried by military commissions. In bypassing the
civilian courts, he said, "it sends a terrible message to the world that, when
confronted with a serious challenge, we lack confidence in the very institutions
we are fighting for."

Like Leahy, Specter derided Chertoff's claims that Congress was "a full partner"
in the fight when "nobody let us know" the military order was being prepared.

Leahy noted that he had asked Ashcroft after a Sept. 25 hearing whether the
president was considering "using the military tribunal system."

Ashcroft wrote Leahy on Oct. 18 that "it would be inappropriate for the
Department to make premature pronouncements concerning the feasibility of this
or other particular methods of trying hostile foreign terrorist forces."

Defending the administration, Sen. Orrin G. Hatch (R-Utah) said many of the
criticisms of the administration's methods have been "unfounded . . . very
unfair and have been almost hysterical."

"After all," Hatch said, "our enemies in this war are not, as many on the
extreme left are fond of saying, simply trying to change our way of life. They
are trying to kill Americans -- as many as they possibly can."

Democratic senators also complained yesterday about the secrecy surrounding
hundreds of people who have been detained as officials try to determine whether
they have any knowledge of or connection to terrorist activities. On Tuesday,
Ashcroft identified 93 people charged with federal crimes and released a list of
charges against 548 unidentified people held on immigration violations. But
authorities have refused to reveal the names of more than 1,000 people detained
since Sept. 11 or provide details about their cases.

Chertoff said the detentions were needed in part to guard against "sleeper"
cells of al Qaeda terrorists, some of whom live in target countries for years
before receiving instructions to carry out terrorist acts. He also disputed the
criticisms of former FBI officials who told The Washington Post that the
bureau's determination to round up suspects to thwart future terrorism is an
ill-advised law enforcement tactic.

Chertoff said officials are continuing longer-term investigations but are also
asking whether individual cases are actually "yielding fruit" or should be
closed down. Another new policy, not cited at the hearing, came to light in the
form of a Sept. 21 directive ordering all immigration judges to close hearings
to the public in "certain cases" specified by Ashcroft.

Issued by Chief Immigration Judge Michael J. Creppy, the memo included more
detailed instructions that "no visitors, no family and no press" were to be
allowed in hearings, that judges would need special security clearances to hear
cases and that all personnel should be instructed "not to discuss the case with
anyone."

Justice officials also acknowledged yesterday that they might seek to jail
without bond any of 5,000 young foreign visitors being sought for interviews if
they are found to be in violation of immigration laws.

The interviews, which target young, mostly Middle Eastern visitors who entered
the United States from countries where terrorists allegedly reside, have been
portrayed by Ashcroft and other Justice officials as voluntary and not focused
on criminal suspects.

But an internal memo issued last week by a senior INS official said that
"affirmative requests either by the FBI or the United States Attorney's office
to detain immigration violators under 'No Bond' should be honored and will be
handled in the same manner as all prior cases with a direct nexus to the Sept.
11 investigation."

Justice spokeswoman Mindy Tucker said the INS directive merely reiterates
standard policy. "All along through the investigation, we've said we're not
going to turn a blind eye to a crime that's being committed," Tucker said. The
Senate hearings will resume next week. Ashcroft is scheduled to testify
Thursday.

[Staff writer Dan Eggen contributed to this report.]

* * *


November 25, 2001; Page B1

LIBERTY AND THE PURSUIT OF TERRORISTS

By Charles Lane

If civil libertarians of the left and right agree on anything, it is this: In
its war against terrorism, the Bush administration is about to trample the
Constitution, and with it, our personal freedoms. The Justice Department's plan
to eavesdrop on selected conversations between federal detainees and their
attorneys is "terrifying," says Laura Murphy of the liberally oriented American
Civil Liberties Union. President Bush's potentially secret anti-terrorism
military tribunals are Stalinist, says William Safire, the conservatively
inclined New York Times columnist.

Sincere as it may be, this criticism is overblown. There's no need, or reason,
to discuss the threat to liberty posed by the U.S. government in the same breath
as the threat posed by terrorism itself.

Viewed strictly in legal and constitutional terms, the Bush approach does raise
troubling questions. If the administration makes aggressive use of the new
wiretapping, detention and intelligence-gathering powers granted to it by
Congress, as Attorney General John Ashcroft has pledged, more people would
likely be prosecuted and punished than would have been the case under pre-Sept.
11 laws. And they may be jailed or otherwise deprived of their rights with less
due process than before.

But viewed as the latest chapter in the long-running American story about how to
balance security and liberty in wartime -- a story that dates back to the early
days of the republic -- today's anti-terror crackdown seems quite defensible,
even moderate. Moreover, if the past is any guide, the long-term consequence of
a U.S. victory in the current war could well be more freedom and tolerance, both
here and abroad.

There are no certain templates when it comes to managing the trade-off between
safety and freedom. The Constitution has been a consideration for past war
presidents, but not necessarily a more important one than the perceived gravity
of the threat the country faced. Without an act of Congress, President Abraham
Lincoln suspended the right to seek habeas corpus (an ancient judicial writ
designed to free the wrongly imprisoned) during the Civil War, and authorized
military trials for alleged draft resisters or Southern sympathizers. Lincoln
believed he had to go above and beyond the Constitution to preserve the
Republic, without which the Constitution itself would be a dead letter. "Are all
the laws but one to go unexecuted," he asked his critics in the dark days of
1861, "and the government itself to go to pieces, lest that one be violated?"

Twentieth-century presidents embraced Lincoln's logic. Woodrow Wilson let
Socialist Party leader Eugene V. Debs be prosecuted and jailed for publicly
opposing the World War I draft; Wilson's postmaster general drove antiwar
newspapers out of business by denying them access to the mails. Following
Japan's attack on Pearl Harbor, Franklin D. Roosevelt ordered the internment of
120,000 people of Japanese ancestry, most of them U.S. citizens.

Historians still debate the legitimacy of these decisions. Lincoln's have
generally been vindicated; Wilson's and FDR's have not. What's striking today,
though, is that nothing like these measures is even contemplated. Bush's
response is comparatively well-tailored to a clearly urgent threat. The Justice
Department has held hundreds of suspects from Muslim countries in secret
detention and has ordered the questioning of 5,000 other recent arrivals. This
has a whiff of ethnic profiling about it. But the government has a plausible
legal claim -- a visa violation, usually -- for holding most of the detainees.
And the president, joined by political leaders of all parties and regions, has
gone out of his way to urge tolerance.

Lincoln's military tribunals tried U.S. citizens, sometimes for little more than
antiwar speech. By contrast, the military trials Bush authorized two weeks ago
are aimed at non-citizens directly involved in terrorism, or who may be captured
in battle. Bush made that decision after the failure of more legalistic pre-
Sept. 11 approaches to terrorism. The Clinton administration emphasized
prosecution in civilian courts; former national security adviser Sandy Berger
has said that he could not accept a 1996 offer by Sudan to hand over Osama bin
Laden because FBI officials believed there wasn't enough evidence to indict him
in federal court. U.S. juries did eventually convict several bin Laden
underlings, but only after long trials in which delicate government information
had to be disclosed -- much of it undoubtedly of use to bin Laden's terrorist
planners.

The precedent for Bush's secret tribunals -- for persons who he has "reason to
believe" are involved in terrorism -- is an obscure (until recently) 1942
Supreme Court case, Ex Parte Quirin. In that case, eight German soldiers were
arrested in the United States while on a covert campaign of sabotage aimed at
stores, bridges and utilities. To keep them out of civilian courts, Roosevelt
ordered them charged with violating the laws of war and had them tried in secret
by a panel of military officers, which sentenced them to death, subject to FDR's
approval. The Supreme Court consented, saying that constitutional guarantees did
not apply to foreign combatants charged with war crimes within the United
States. In so doing, the court carved out a new distinction between military
justice for noncitizens and Lincoln-style military tribunals for U.S. citizens,
which have been barred since an 1866 decision known as Ex Parte Milligan.

As a case study in what happens to due process when the president acts as
prosecutor and judge as well as commander in chief, Quirin is not reassuring.
The trial was held in secret not only to protect legitimate intelligence sources
and methods, but also to conceal the embarrassing fact that J. Edgar Hoover's
FBI had failed to uncover the plot until one of the Germans came to Washington
and offered a detailed confession. (FDR commuted the sentences of that saboteur
and another; they were later freed and sent back to Germany after the war by
President Harry S. Truman). Supreme Court justices had serious misgivings, but
were swayed by pressure from the administration and an emotional private appeal
from Justice Felix Frankfurter, who argued that anything but a unanimous verdict
in favor of the president would undermine U.S. military morale.

Then again, the saboteurs were fighting for Hitler. If they had been seen
sneaking around a U.S. base in Europe, they would have been shot on the spot.
Morally, if not legally, it's hard to understand why they should have enjoyed
extra protection simply because they were sneaking around within the United
States. The last thing Roosevelt wanted to do in democracy's life-and-death
struggle with Nazism was to give the enemy a perverse incentive to infiltrate
the country and engage in terrorism. The same can be said of bin Laden and his
clandestine army. The real lesson of Quirin is that the big stick of a military
tribunal should be coupled with the carrot of amnesty for those terrorists (not
including al Qaeda's top leaders) who lay down their arms and cooperate with
U.S. intelligence.

Certainly, liberated people all over the world are glad that Roosevelt waged
all-out war on Nazism and Japanese imperialism, whatever terrible mistakes he
made on the home front. Among the grateful are millions of African Americans and
women, whose rights expanded in the postwar years, in part because they could
cite the anti-racist nature of the war against Germany. Similarly, Lincoln may
have traduced habeas corpus, but the Union eventually freed the slaves and saved
the world's greatest experiment in self-government.

America's wars -- including World War I, during which the government's
violations of civil liberty seemed least justifiable, either then or now -- are
part of a larger narrative of national growth and integration in which freedom
and individual rights have, over time, ascended. This has by no means been a
smooth process. The Civil War gave way to the Ku Klux Klan; World War I segued
into the Palmer Raids, a sweeping round-up of suspected anarchists and
communists after a series of bombings; and World War II gave way to the anti-
communist excesses of the 1950s. But Americans today enjoy far greater legal
rights of all kinds, and our society is more inclusive than it was in 1863.

Throughout history, civil libertarians have played a vital role in defending the
wrongly accused and making the case for the smallest feasible governmental
intrusions on constitutional liberty. They are playing that honorable role now.
Yet it is precisely through such intense political debate and struggle, and not
only through lawsuits, that enduring gains for individual rights have been
achieved. If Bush has not gone even further in cracking down on terrorism it is
because he is constrained by a legal and political culture far more favorable
toward civil liberties than anything Lincoln, Wilson or FDR could have imagined.

And don't underestimate the net increase in freedom abroad that could yet result
from American victory now. (Witness the dawn of liberty, however tentative, for
women in Kabul.) The United States confronts not only a criminal menace to its
people and institutions, but also an armed campaign to impose a quasi-
totalitarian political ideology, masquerading as religion, on a vast region of
the earth. Our government needs to proceed with maximal respect for fundamental
human rights as it goes about winning this war. One of the terrorists' goals is
to provoke an authoritarian overreaction by the United States and other
democracies. But it's way too early to worry that they've succeeded.

[ Charles Lane covers the Supreme Court for The Post's national staff. ]

* * *

November 16, 2001; Page A40

ON LEFT AND RIGHT, CONCERN OVER ANTI-TERRORISM MOVES
Administration Actions Threaten Civil Liberties, Critics Say

By George Lardner Jr., Washington Post Staff Writer

A growing chorus on the left and the right is accusing the Bush administration
of ignoring civil liberties while leaving the courts and Congress out in the
cold as it aggressively pursues the war on terrorism here and abroad.

Critics ranging from the solidly liberal People for the American Way Foundation
to conservative Rep. Robert L. Barr Jr. (R-Ga.) are characterizing recently
announced administration plans as ethnic profiling, power grabbing and
overzealous law enforcement.

"Military tribunals, secret evidence, no numbers on how many people the
government is detaining," said Jim Zogby, president of the Arab-American
Institute. "We're looking like a Third World country."

The latest focus of the debate is an order signed by President Bush this week
that empowers him to order military trials here and abroad for international
terrorists and their collaborators.

But other complaints concern Attorney General John D. Ashcroft's decision to
monitor conversations between lawyers and some clients in federal custody if
Ashcroft believes it is necessary to thwart future terrorism; the plan to
question 5,000 foreign nationals who recently entered the country; and the FBI's
visits to hundreds of college campuses to check on the records of foreign
students, mostly from Middle Eastern countries.

Under pressure from the Justice Department, the State Department also has agreed
to slow temporarily the granting of visas to Arab and Muslim males, ages 16 to
45, from 25 countries so the FBI and the Immigration and Naturalization Service
can conduct security checks.

The administration has made no apologies, saying the nation is in the midst of
an extraordinary emergency.

"I think it's important to understand that we are at war now," Ashcroft said
earlier this week in defending military tribunals.

Assistant Attorney General Viet Dinh said that the overriding goal of the
Justice Department is to "prevent further terrorist attacks," but that at the
same time it must take care "not to redefine the line between law enforcement
and civil liberties."

Critics in Congress, legal scholars and spokesmen for the nation's Arab American
community have voiced misgivings about the new anti-terrorism laws, passed last
month as the USA-Patriot Act. But they are far more vocal about what the
administration has done since then.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he intends to
hold hearings on the military tribunals directive and other recent steps that
have been taken without consulting Congress.

"There's a lot of disquiet among both Republican and Democratic senators who
think the rules of law are being turned on their head, and they wonder what we
gain by it," Leahy said in an interview. "I want to know what security needs are
being met, or whether this is action for the sake of having action when you
can't catch people."

House Judiciary Committee members have also called for hearings. Barr said the
administration should have given the new anti-terrorist laws time to work, then
gone back to Congress if they turned out to be insufficient. "Instead, it seems
their attitude is, 'Well, that wasn't enough so we're going to take more,' "
Barr told a reporter. "I'm not sure we can ever satisfy the federal government's
insatiable appetite for more power."

Advocacy groups from both sides of the political spectrum have joined the
debate. Ralph Neas, president of the People for the American Way Foundation,
accused Ashcroft of "waging a relentless assault on civil liberties." Among the
most troubling actions, Neas said, was the order empowering Ashcroft to violate
the attorney-client privilege without a court order.

The Justice Department said the order so far pertains only to 13 people in
federal custody, none of them connected to the Sept. 11 attacks.

"Terrorism isn't the only threat to our way of life," Neas said yesterday. "We
need an attorney general who will stand up to terrorists, but we also need an
attorney general who will stand up for the Constitution and the Bill of Rights."

Zogby said the administration's emergency measures are already undermining U.S.
credibility abroad, where thousands of Arab men -- students, businessmen and, in
some cases, royalty -- are having visa requests held up for security checks.
Just back from a trip to Saudi Arabia and the United Arab Emirates, Zogby said
the fear of U.S. authorities there is widespread.

"Forty percent of the students from the UAE who were in the United States . . .
have already gone home," Zogby said.

Tim Lynch, director of the Cato Institute's project on criminal justice, said it
appears that the president's strong support in public opinion polls has fostered
"an arrogance at the White House." He said officials believe they can take
presidential power "farther than it's gone before."

Lynch was especially critical of the order for military tribunals. They would be
able to impose sentences as severe as death on a two-thirds vote, hold trials in
secret and rely on evidence that would be rejected in a civil court.

"It undermines the courts, obviously," Lynch said of the order, "and it
undermines Congress because it is essentially legislating action by presidential
edict." Issued by Bush as commander in chief, the military order directs the
secretary of defense to detain indefinitely any noncitizen who Bush has "reason
to believe" is a past or present member of Osama bin Laden's al Qaeda terror
network, has engaged in international terrorism directed at U.S. interests or
has "knowingly harbored such individuals."

Military tribunals, using whatever standard of proof Defense Secretary Donald H.
Rumsfeld chooses, then would be able to try those individuals for "all offenses
triable by military commission" -- in other words, offenses under the laws of
war. "This is absolutely, totally constitutional," an administration official
conversant with the decree said yesterday. "The only ones to be tried will be
foreign enemy belligerents."

That could include an al Qaeda cell member planning more acts of violence, he
said. "If they're hiding and planning acts of violence," he said, "they are in
violation of the laws of war. The U.S. Constitution doesn't protect them."
Bush's order does not allow for judicial review. Several legal experts said a
little- noticed provision at the end of the directive order also appears to be
an effort by the president to suspend the right of habeas corpus, which
prisoners can use to challenge their detention.

President Franklin D. Roosevelt claimed such authority, without success, when he
ordered a secret military trial of eight Nazi saboteurs during World War II.

Bush said that "any individual subject to this order shall not be privileged to
seek any remedy . . . in any court of the United States, or any state thereof."

"The word 'privileged' is the tip-off," said Philip A. Lacovara, a former deputy
U.S. solicitor general. He said he was surprised by the provision even though he
favors military tribunals as the best response to the attacks of Sept. 11.

"The Constitution sets out only two grounds for suspending the privilege of
challenging one's detention on a habeas corpus petition: one is invasion and the
other is rebellion. Even in the Civil War, the courts were reluctant to allow
President Lincoln to dispense with habeas corpus."

Lacovara added: "It adds another level of controversy to the order."

Dan Bartlett, the White House's communications director, denied that the order
forecloses habeas corpus petitions for noncitizens detained in the United States
for military trials.

During World War II, the Supreme Court reviewed the saboteurs' case despite
Roosevelt's attempts to block their petition for release. The White House is
aware that would probably occur if Bush tried the same thing, administration
officials said.

[Staff writers Dan Eggen and Mary Beth Sheridan contributed to this report.]

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November 15, 2001; Page A28

BUSH PLAN FOR TERRORISM TRIALS DEFENDED
Military Tribunals Appropriate in War, Ashcroft Says Critics Cite Constitution

By Peter Slevin and George Lardner Jr., Washington Post Staff Writers

The terrorists who launched the Sept. 11 attacks, and the people who helped
them, are war criminals who do not deserve the protections of the U.S.
Constitution, Attorney General John D. Ashcroft and Vice President Cheney said
yesterday in defense of a plan to prosecute foreign terrorism suspects in
American military tribunals.

"They don't deserve the same guarantees and safeguards that would be used for an
American citizen going through the normal judicial process," Cheney said.
Ashcroft told a separate audience that "it's important to understand that we are
at war now."

Several Democratic leaders in Congress attacked the decision by President Bush
to authorize trials by special military courts, saying military prosecutions
would smack of "victor's justice" and would bypass a U.S. criminal justice
system that has convicted terrorists while protecting civil liberties.

The military order Bush signed this week as commander in chief "sends a message
to the world that it is acceptable to hold secret trials and summary executions
without the possibility of judicial review, at least when the defendant is a
foreign national," said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary
Committee. He complained that the administration did not consult Congress.

The Justice Department has prosecuted terrorists in federal courts, often
winning convictions and long sentences. Bush's directive, however, asserts an
"extraordinary emergency" and authorizes the creation of military tribunals
whose rules and procedures would be designed by the Pentagon and would not be
subject to review by U.S. civilian courts.

Any suspect who is not a U.S. citizen could be tried by a U.S. military court if
Bush chooses. The approach, last used against a team of Nazi saboteurs who
invaded the United States during World War II, would grant the Bush
administration complete freedom to set the terms of the prosecution. Defendants
could include suspects in attacks on Americans or U.S. interests, and anyone
suspected of harboring them.

Ashcroft, describing the Sept. 11 hijackings as "acts of war against
civilization," raised the possibility yesterday that the government may seek
military trials against suspects now in custody. Several law enforcement
officials said the threat of such prosecution, with fewer protections for
defendants, might persuade some of the suspects to start talking.

Ashcroft's endorsement of the military approach represents a shift in emphasis
from his previous statements about the relevance and importance of the
Constitution in the war on terrorism.

"We're going to protect and honor the Constitution, and I don't have the
authority to set it aside," Ashcroft said last month on ABC News's "Nightline."
"If I had the authority to set it aside, this would be a dangerous government,
and I wouldn't respect it."

Cheney yesterday promised that defendants "will have a fair trial."
Administration officials described the military approach as just one option,
designed to protect civilian courts -- and jurors, judicial officials and
lawyers -- from harm while safeguarding secret sources and methods.

Some legal scholars yesterday questioned the propriety of ordering suspects in
the United States to stand trial beyond the boundaries of the established
criminal justice system.

"The administration has made no case that the U.S. court system is not
functioning and capable of dealing with criminal acts," said Morton H. Halperin,
a Clinton administration official.

Washington criminal lawyer James Cole said the Bush administration is invoking
an emergency as a pretext for actions "contrary to the spirit and letter of the
Constitution."

A defendant who wound up before a special tribunal would have far fewer rights
than a defendant in a court martial, where the rules of evidence are a "virtual
carbon copy" of rules in civilian courts, said Eugene R. Fidell, president of
the National Institute of Military Justice.

A court martial can convict only if convinced of guilt beyond a reasonable doubt
and can deliver the death penalty only on a unanimous verdict, he said. Bush has
said that "it is not practicable" for the military commissions to abide by the
same rules of evidence. His order authorizes penalties as severe as death on a
two-thirds vote. And it leaves it up to Defense Secretary Donald H. Rumsfeld to
decide on the standard of proof needed for conviction.

Elissa Massimino, Washington office director of the Lawyers Committee for Human
Rights, said military trials conducted under relaxed rules of evidence and
partial secrecy would lack international credibility.

When countries such as Peru, Colombia and Egypt try civilians in military
courts, she said, "the State Department has strongly objected. What will it be
able to say now?"

[Staff writer Dan Eggen and researcher Madonna Lebling contributed to this
report.]

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November 14, 2001; Page A1

MILITARY MAY TRY TERRORISM CASES
Bush Cites 'Emergency'

By George Lardner Jr. and Peter Slevin, Washington Post Staff Writers

President Bush declared an "extraordinary emergency" yesterday that empowers him
to order military trials for suspected international terrorists and their
collaborators, bypassing the American criminal justice system, its rules of
evidence and its constitutional guarantees.

The presidential directive, signed by Bush as commander in chief, applies to
non- U.S. citizens arrested in the United States or abroad. The president
himself will decide which defendants will be tried by military tribunals.

Defense Secretary Donald H. Rumsfeld will appoint each panel and set its rules
and procedures, including the level of proof needed for a conviction. There will
be no judicial review.

By setting up military tribunals, administration officials said, Bush hopes to
ensure that terrorists captured in Afghanistan or around the world are brought
swiftly and surely to justice. But the order drew immediate criticism from civil
libertarians and could alienate European allies who oppose the U.S. death
penalty and favor international courts.

Bush said the tribunals are needed because "mass deaths, mass injuries and
massive destruction of property" from future terrorism could "place at risk the
continuity of the operations of the United States government." It is "not
practicable," he said, to require the tribunals to abide by the "principles of
law and the rules of evidence" that govern U.S. criminal prosecutions.

Legal scholars said the measure is highly unusual, but not unprecedented. During
World War II, President Franklin D. Roosevelt ordered a secret military trial
for eight Nazi saboteurs who had landed in Florida and New York with explosives
they intended to use against such targets as factories, bridges, railroads and
department stores. The Supreme Court declared the trial constitutional, and six
of the eight defendants were executed.

The decision is the latest in a series of legal steps taken by the government to
combat terrorism. Last week, the Justice Department authorized the wiretapping
of conversations between some jailed suspects and their lawyers. Congress has
also passed legislation making it easier to conduct searches, detain and deport
suspects, wiretap multiple telephones and obtain electronic records on
individuals.

Bush's order promises "a full and fair trial" and access to lawyers, but there
is no provision for an appeal to U.S. civil courts or international tribunals.
Only Bush or the secretary of defense, if the president so chooses, will have
the authority to overturn a decision.

White House communications director Dan Bartlett said the military courts would
reduce the danger to jurors and other court personnel, protect confidential
sources needed to build investigations and help uncover plans for future
attacks. He cited national security interests and the need for swift justice as
reasons for the presidential order.

Laura Murphy, director of the Washington office of the American Civil Liberties
Union, said Bush needs to explain why the criminal justice system could not
deliver "the timely prosecution" of terrorism suspects.

"Absent such a compelling justification," she said, "today's order is 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."

For weeks, White House and Justice Department officials have debated how to try
any accused terrorists who may be apprehended in the hunt for members of Osama
bin Laden's al Qaeda organization, which the U.S. government holds responsible
for the Sept. 11 attacks in New York and Washington.

The issue took on urgency this week as the U.S.-backed Northern Alliance
advanced rapidly across a broad swath of Afghanistan, pushing back the Taliban
militia that has harbored bin Laden and sweeping into the capital, Kabul.

"Everyone's struggling with what happens next," a U.S. official involved in the
discussions had said before Bush signed the order yesterday afternoon. "It's
likely we'll end up with someone in custody and not know what to do with him."

The order says defendants could include past or present members of al Qaeda or
anyone involved in acts of international terrorism intended to have "adverse
effects on the United States, its citizens, national security or economy." It
also targets anyone who has "knowingly harbored" such terrorists.

The tribunals could meet in this country or abroad. Bush's order specifies that
a two-thirds vote is needed to convict a defendant and impose a sentence, which
could include life imprisonment or death. But it does not say how many judges
are to sit on a tribunal. Nor does it define their qualifications.

The step Bush took yesterday has been urged on him for weeks by conservative
lawyers from past administrations and other experts who cited precedents dating
back to the Civil War. One of them, George Terwilliger, a former high-ranking
Justice Department official, said a military tribunal would be appropriate for
anyone who commits an act of war against the United States.

If U.S. forces should capture a Taliban or al Qaeda leader, said Terwilliger, a
criminal trial in a U.S. court would not be appropriate. "The notion that we
would bring him back for a trial cloaked with a full panoply of constitutional
rights -- bring him to the dock in New York -- to me is absurd."

Some legal scholars such as John Norton Moore, director of the Center for
National Security Law, had favored the creation of an international tribunal by
the United Nations Security Council to deal with the Sept. 11 attacks and their
aftermath, but others said such tribunals typically drag on for years and lose
impact.

"This was an armed attack on the United States, not just a mass murder or a
serial killing," said Philip A. Lacovara, a former deputy solicitor general. "It
is appropriate to deal with it as a crime against humanity." He also noted that
international tribunals created by the United Nations do not authorize the death
penalty.

[Staff writer Susan Schmidt contributed to this report.]

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