Secret anti-terror court at issue

Civil libertarians argue that tribunals would violate rights

Panels last used in 1942

November 19, 2001|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON -- In June 1942, six months after the United States entered World War II, a small cadre of German agents disembarked from two U-boats onto American soil with more than $175,000, bundles of explosives and orders to destroy U.S. factories, bridges and canals.

The plot failed when the will of one of the men faltered and he alerted the FBI. Rather than try the trained saboteurs in civilian court, though, President Franklin D. Roosevelt created a secret military tribunal to hear their case -- exactly what President Bush has proposed for suspected terrorists in the United States' fight against terrorism.

In its aggressive response to the terrorist attacks this fall, the Bush administration has appropriated to itself extraordinary prosecutorial and law enforcement powers. The most recent instance came with Bush's executive order last week that would revive the military tribunal and exempt its actions from judicial review.

Dormant for 60 years, such tribunals essentially allow the government to circumvent the normal criminal justice system. The president decides who would be tried by the court. All proceedings would be secret. Verdicts and even death sentences might not have to be unanimous. And there would be no right to appeal.

The prospect deeply worries some legal experts and defenders of civil liberties, who say the tribunals would violate basic constitutional protections. They see them as part of an escalating threat to individual rights after the Sept. 11 attacks that has faced scant debate and little public dissent.

"One of the things we've learned is that when you give greater powers to intelligence agencies or to law enforcement agencies, it is very difficult to scale them back," said Morton H. Halperin, a former Clinton administration official and now a senior fellow at the Council on Foreign Relations.

Top U.S. officials defend the use of aggressive investigative measures, widespread detentions and the creation of military commissions to try suspected terrorists. They argue that the new rules are needed to track down a wily and dangerous foreign enemy willing to kill thousands of innocent American civilians.

"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution," Attorney General John Ashcroft, the nation's top law enforcement officer, said last week.

The president's order on military tribunals occurred on the same day that the Justice Department said it wanted to question 5,000 foreign men living in the United States, even though none is considered a suspect. That and other actions over the past two months have alarmed civil liberties advocates.

Agencies' powers expand

A swiftly passed anti-terrorism law has greatly expanded the FBI's powers to track suspected terrorists through wiretaps and searches. About 1,200 people have been detained in the investigation of Sept. 11 and their cases mostly sealed away from public inspection, even though few are thought to have information directly relevant to the attacks. In a small number of cases, investigators have been allowed to monitor communications between people in federal custody and their attorneys.

During ordinary times, any one of those measures would be sure to draw loud protests. But threats to national security historically have prompted sharp restrictions on personal freedoms -- the internment of Japanese-Americans during World War II, the Red Scare after the war, or the wiretapping of civil rights leaders and government critics in the Vietnam era.

Laura W. Murphy, director of the American Civil Liberties Union's Washington office, warned that Bush's order creating military tribunals could become part of that legacy. She said the order was "further evidence that the administration is totally unwilling to abide by the checks and balances that are so central to our democracy."

General reaction, though, is more muted. Many Americans are reluctant to appear unpatriotic by questioning the government's approach. Others simply are eager to see the United States capture Osama bin Laden or have little experience with the national security issues suddenly at the forefront.

Eight German agents

The last time a president used a military tribunal was six decades ago, against eight German agents who were trained at "sabotage schools" near Berlin and then sent to the United States with orders to attack the country from within, court records show.

The Germans, traveling in two groups of four men, arrived in the United States from submarines. The first group came ashore at Amagansett Beach on Long Island on June 13, 1942, in the dead of night. The second group arrived four days later, at Ponte Vedra Beach, near Jacksonville, Fla.

All arrived wearing the uniforms or caps of the German Marine Infantry, which they buried once in the United States to move through the country undetected.

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