Bush Order on Military Tribunals is Further Evidence That Government is Abandoning Democracy's Checks and Balances

November 14, 2001 12:00 am

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Statement of Laura W. Murphy, Director
ACLU Washington National Office


WASHINGTON — The American Civil Liberties Union is deeply disturbed by President Bush’s executive order allowing special military tribunals to try non-citizens charged with terrorism. The tribunals would even reach non-citizens in the United States, including lawful permanent residents.

To our knowledge, the move to establish a military tribunal when Congress has not declared war is unprecedented.

We do not believe that the Administration has shown that the constitutional jury trial system does not allow for the prosecution of those accused of terrorist activities. Absent such a compelling justification, the President’s decision is further evidence that the Administration is totally unwilling to abide by the checks and balances that are so central to our democracy.

The use of military tribunals would apparently authorize secret trials without a jury and without the requirement of a unanimous verdict and would limit a defendant’s opportunities to confront the evidence against him and choose his own lawyer. What’s worse, these important legal protections would be removed in a situation where defendants may very well be facing the death penalty.

It is difficult to understand how the Administration can justify the use of a tribunal when the United States has successfully tried in our courts non-citizens accused of terrorist acts, organized crime, and others in situations where the safety of jurors and the disclosure of government intelligence methods were at issue.

As the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh demonstrate, the government has managed to protect the safety and identity of jurors while achieving convictions in terrorism cases. And there is already a system established to handle classified information in the course of a trial; it is called the Classified Information Procedures Act. For decades, CIPA has adequately balanced national security and due process concerns. The government has made no showing that CIPA procedures would not be adequate in these circumstances as well.

Further, it would be hypocritical of the United States to impose such a tribunal when we have repeatedly protested the use of such courts against U.S. citizens abroad.

Congress has already given the Administration and the Justice Department virtually everything they asked for to fight terrorism. This latest move, combined with the Justice Department’s announced intentions to eavesdrop on attorney conversations with inmates and to begin interviewing foreign visitors to the United States, demonstrates the government’s increasing willingness to circumvent the requirements of the Bill of Rights.

We call on Congress to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition.

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