WASHINGTON - 12.08.01 | More than 300 law professors from
around the country are protesting President Bush's order to establish
military tribunals for foreign terrorist suspects. In a letter that
originated at Yale Law School, the lawyers assert that such tribunals
are "legally deficient, unnecessary and unwise."
The lawyers, who represent varying institutions and political
philosophies, say the tribunals as outlined so far would violate the
separation of powers, would not comport with constitutional standards of
due process and would allow the president to violate binding treaties.
The tribunals, they say, assume that procedures used in civil
courts or military courts-martial would be inadequate to handle such
cases. And they say that using them would undercut the ability of the
United States to protest when such tribunals are used against American
citizens in other countries.
The letter was sent to Senator Patrick J. Leahy, the Vermont
Democrat who is chairman of the Judiciary Committee and who questioned
Attorney General John Ashcroft at length on Thursday about the
tribunals.
Mr. Ashcroft defended them, saying they would be used only for
war crimes. Referring to the Sept. 11 terrorist attacks, Mr. Ashcroft
said, "When we come to those responsible for this, say who are in
Afghanistan, are we supposed to read them the Miranda rights, hire a
flamboyant defense lawyer, bring them back to the United States to
create a new cable network of Osama TV?"
For his part, Senator Leahy said that some of his concerns
about President Bush's initial military order had been allayed by
information that had emerged as a result of hearings on Capitol Hill.
Nonetheless, Judith Resnik, who teaches procedure and federal
courts at Yale and was instrumental in drafting the letter, said there
should be an open discussion of why traditional courts were not
appropriate for trying terrorist suspects.
"What I would hope is that an open collaborative process
between the executive and the Congress would develop an appropriate
response and would explore the pros and cons of using the current
available avenues," she said.
At the same time, John W. Dean III, the former Watergate figure
in the Nixon White House and an early proponent of the tribunals, said
he believed that much of the criticism could be dispelled if the White
House would seek Congressional authority for the tribunals.
As a matter of law, he said, it has never been resolved whether
the president needs Congressional authority for such tribunals, but both
Abraham Lincoln and Franklin D. Roosevelt had it when they used these
tribunals.
"The president would be on a stronger footing if they explained
what they are doing, and it would eliminate 300 law professors, who are
assuming the worst case, from getting together," Mr. Dean said. He added
that statements by Alberto R. Gonzales, the White House counsel, made
the tribunals seem less worrisome than Mr. Bush's military order, but he
faulted the White House for not better explaining the details.
"What mystifies me is how poorly the administration has
presented this concept," he said. "For as media-conscious presidency as
we have, they have done a lousy job of telling us what they're doing."
Asked if Congressional authority would allay her concerns, Ms.
Resnik said, "My concerns are not resolved by an after-the-fact
Congressional imprimatur."
Thank you to t r u t h o u t.org for this article.