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Military Tribunal FAQ

By Chris SuellentropPosted Tuesday, Dec. 4, 2001, at 6:34 PM ET

White House counsel Alberto Gonzales and New York Times columnist Anthony Lewis are feuding in the Times' op-ed page over the content of George W. Bush's order to create military tribunals to try suspected terrorists. Gonzales insists that critics of the military tribunals have "misconceptions about what the president's order does and how it will function." Lewis maintains that defenders of military tribunals want to conceal the "true character" of Bush's order and that Gonzales wants to defend "an order that he wished he and his colleagues had written instead of the one that Mr. Bush actually issued." What exactly does Bush's military order say?

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Click here for the full text of the order. Here are the highlights:

1. Who may be tried under the order? Non-citizens who are former or current members of al-Qaida and non-citizens who have "engaged in, aided or abetted, or conspired to commit" acts of international terrorism against the "United States, its citizens, national security, foreign policy, or economy." In addition, non-citizens who knowingly harbor terrorists may be subject to the military tribunals. (That's in keeping with the Bush Doctrine of making no distinction between terrorists and those who harbor them.)

Not every terrorist has to be tried by a military tribunal. Bush must determine that it is in the United States' interest to try the individual that way.

2. Who decides who will be tried? Bush, "from time to time in writing," will determine whether there is "reason to believe" that a particular non-citizen is an al-Qaida member, an international terrorist, or someone who has harbored international terrorists, and that it is in the United States' interest to use a military tribunal to try that person.

3. Where will the U.S. detain the suspected terrorists? At "an appropriate location designated by the secretary of defense outside or within the United States." (Explainer takes that as meaning that the location, not the secretary of defense, will be outside or within the United States.)

The order stipulates that those subject to the order be treated humanely; be afforded adequate food, drinking water, shelter, clothing, and medical treatment; and be allowed the free exercise of religion ("consistent with the requirements of such detention"). The secretary of defense may prescribe other conditions for detainment.

4. For what will they be tried? For "violations of the laws of war and other applicable laws." (Click here for a list of some war crimes.) Those found guilty may be "punished in accordance with the penalties provided under applicable law, including life imprisonment or death."

5. Where and how will they be tried? It's not clear yet. Bush's order asks the Pentagon to draw up regulations to determine the conduct of the proceedings, "including pretrial, trial, and post- trial procedures, modes of proof, issuance of process, and qualifications of attorneys."

The order does, however, lay out a few minimal requirements: Individuals are to receive "a full and fair trial" by a military commission "at any time and any place" under the guidance of the secretary of defense. The military commission will be "the triers of both fact and law." Evidence that has "probative value to a reasonable person" in the commission's opinion may be admitted, meaning that normally inadmissible evidence such as hearsay may be allowed. Convictions and sentencing will take place if there's a two-thirds vote "of the members of the commission present at the time of the vote," as long as a majority of the members are present. The record of the trial, including any conviction or sentence, will be submitted to the president "for review and final decision." (Bush may also delegate that final decision to the secretary of defense.)

6. Who will serve as the attorneys? Bush's order says that the secretary of defense will select the attorneys for the prosecution. It's not clear who will select the attorneys for the defense.

7. Can the tribunals' decisions be appealed? No. The order states that those tried cannot seek remedies in a U.S. court, foreign court, or international court. The order maintains that military tribunals have "exclusive jurisdiction with respect to offenses by the individual." Gonzales said in his Times op-ed that "anyone arrested, detained or tried in the United States" can use the federal courts to appeal a tribunal's jurisdiction, but that doesn't mean that the tribunal's decision can be appealed if jurisdiction is granted.

(For answers to more questions about military tribunals, Explainer recommends this story by the Kansas City Star's Rick Montgomery.)

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COMMENTS

Notes From The Fray Editor:

Vicious LA, below, goes into convincing detail of the legal aspects of challenging military tribunals: his post is worth reading in full (and proves yet again that you can't judge a post from the Frayname). Chet Pelka asks "Why would we, as a people who extol our system of justice, set up a system with minimum rights for the accused and minimum review for the accusers?" Ejk says a better question is "Why do we need such liberal conviction standards if we already have incontrovertible evidence that OBL was the primary perp of the 9/11 bombings?" and then wanders off into some wild and mysterious theories.

Comments:

The very legality of the existence of the tribunals [can be challenged] through the federal courts system...The Supreme Court very well may hold its constitutional nose if asked to review the [tribunals], dismissing due process concerns and the like, and only review whether congress authorized tribunals of the type Bush created. If they have, the terrorists would be screwed, legally speaking.

I think it's one monumental bluff. [Bush] wants to scare anyone he can snag into quitting now; they might think they could be possibly tried summarily and executed. It would be a heated political issue both here and abroad if it was ever found out that he tried someone through a tribunal. He would be dumb to bring down that heat on himself. He's doing this to look good and scare people. However, he just might get away with it legally speaking if he ever tried...

--Vicious Lhasa Apso

(To find or answer this post, click here.)

According to Bush's order, only 2/3 of a "majority" of the commission is needed to convict and possibly sentence to death. This is the lowest bar imaginable for the prosecutor to be faced with. Do the math... In a civil jury situation that would mean that only 5 jurors would have to vote to convict if a majority (7) of the 12 person panel were assembled. How's that for justice?

--Scott

(To find or answer this post, click here, and see also further comments in the thread.)

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