Gwen Ifill examines the debate over trying terrorists in military rather than civilian courts with George Terwilliger, former deputy attorney general for the first Bush administration, and Laura Murphy, director of the Washington office of the American Civil Liberties Union.
GWEN IFILL: Declaring an "extraordinary emergency," President Bush signed an order yesterday to allow special military tribunals to try non- citizens suspected of terrorism. Under the order, the President himself would designate who is an accused terrorist. Those accused would be placed under the control of the Secretary of Defense, the order would promise a "full and fair," but secret, trial. And there would be no avenue for appeal. Attorney General Ashcroft was asked about the order today.
JOHN ASHCROFT: It's important to understand that we are at war now. And it's pretty clear that the acts of the terrorists on the United States soil against innocent individuals in the United States and acts which have subsequently been endorsed by the terrorists in their statements about how they say the United States innocent people deserve this kind of treatment, these are acts of war. That distinguishes this setting from a variety of other settings. You know, there are similarities to some other settings. For instance, when people came ashore from Germany who came in from submarines in the Second World War, and the then President of the United States said those who invade our country come here with a purpose of destroying America should be tried by a military commission in a time of war. I think there are similarities there. It's important to note that the President has under taken to issue this order as a way of providing himself with the flexibility of decision making to deal with circumstances appropriately in a time of war. I believe those who flew airplanes into the World Trade Center, who commandeered airplanes that either crashed in Pennsylvania or into the Pentagon of the United States and those who assisted them in doing so, committed the kinds of criminal activity that would qualify as war crimes.
GWEN IFILL: So is this a necessary tool in the anti-terrorism fight? Or is it an unwarranted expansion of law enforcement powers? We join that debate now with: George Terwilliger, former deputy attorney general in the first Bush Administration. And Laura Murphy, director of the Washington office of the American Civil Liberties Union. So, George Terwilliger, is this the best way to prosecute suspected terrorists?
GEORGE TERWILLIGER: It may or may not be the best way depending on the circumstances, and I think clearly what the President has done, Gwen, is reserve the option of using military tribunals. It's not as the lead-in I think would suggest, an expansion of law enforcement powers. Rather, it is the exercise of a whole different set of constitutional powers which flow from Article 2 of the Constitution and that is presidential power and the power of the President as the commander in chief of the armed forces.
GWEN IFILL: Is this constitutional or anti-constitutional, Laura Murphy?
LAURA MURPHY: Well, I don't know that the question is whether or not it's constitutional, because there was a Supreme Court ruling during World War II that upheld the constitutionality of the use of these tribunals. But the issue is whether or not this is necessary, whether the administration is justified suspending the rules of evidence, suspending jury trials, getting rid of complete federal court review, including the Supreme Court. In our view, the President has not demonstrated that this is necessary to prosecute terrorists.
GWEN IFILL: You just heard John Ashcroft say and the Vice President say today too, we are in a state of war, so therefore all kinds of things are justified.
LAURA MURPHY: No, we are not in a state of war. A formal declaration of war has not been declared. And when the Supreme Court upheld this, it was during a time when a war was formally declared. And the Congress had the opportunity in September to pass a declaration of war. They did not choose to do so, and I think it is important that we make sure that we are in a wartime setting officially before we suspend the Bill of Rights.
GEORGE TERWILLIGER: Well, there's no suspension of the Bill of Rights because the Bill of Rights doesn't apply to the exercise of war powers, particularly as to the composition and use of a military tribunal to try what is known in the law of wars unlawful belligerence. The fact of the matter here is that Congress did exercise its authority und the War Powers Act to empower the President to take all appropriate and necessary steps to address the threat that the events of 9-11 and those people are responsible. This is just one of those. So this isn't a threat to the civil liberties of Americans, citizens are excluded from its coverage. What it is is a very practical option that can be used by the authorities to hold accountable those people who committed what are widely seen as acts of war.
GWEN IFILL: Why a military option, why military tribunal, why not an international war court like in The Hague?
GEORGE TERWILLIGER: The use of an international tribunal I suppose could be another option here, whether it's really in the international court of justice is not constituted too this right now. Every nation that is a member of the National Security Council has been victimized by al-Qaida, I believe. So I suppose that would be an option. But here, I think, Gwen, what we're really seeing, is the President reflecting the popular will and the will of Congress that this was an attack on America, on American institutions, and on American and we are shouldering the responsibility to deal with that.
GWEN IFILL: What do you think about the way he chose to do this, the executive order, instead of an act of Congress say?
LAURA MURPHY: Well, you know, he has the authority to put in place an executive order, and the question is whether or not it is appropriate and justified. And I haven't heard anything in George's statement to say that this is justified. We had very successful prosecutions of Timothy McVeigh, and we had very successful prosecutions of the perpetrators of the World Trade Center bombing of 1993. We have prosecuted international, people from other countries within our borders, members of the Cali Cartel. There is no reason why we have to get rid of the rules of evidence, have secret trials, get rid of juries, get rid of federal court review in order to adequately prosecute terrorists. And I do think this is a threat to American citizens, because once we allow people within our borders to have a separate standard of justice, the Fifth Amendment guaranteeing due process of law applies to all persons, not just to citizens. We cannot have two standards of justice in our system, because don't forget the an-terrorism bill expanded the definition of domestic terrorism, and this could apply at some point to American citizens.
GWEN IFILL: Two standards of justice?
GEORGE TERWILLIGER: We do have two standards and they're both in the Constitution. The authority under the War Powers to exercise this type of authority, Presidential authority to try people for war crimes, is well established, as Laura acknowledged, going back to George Washington's administration and most recently used in connection with World War II. So there's nothing extra constitutional or novel about this. The fact of the matter is what we do have that we didn't have before, at least since 1812, are people who have infiltrated to the United States and want to kill us and are willing to do so by the most draconian means. That is war.
LAURA MURPHY: That is not true, because during World War II, Germans were sent to our shores, engaging in espionage, and charged with the activities to undermine the United States. But what George will not acknowledge is that there has not been a formal declaration of war, and when this power was used during World War II, it was when a formal declaration of war occurred.
GEORGE TERWILLIGER: But there's ample precedent for use without a formal declaration of war. And the justification, frankly, has been seen by every American on their televisions.
GWEN IFILL: Let me ask about consistency. Is the United States being consistent in that when other countries seek to take American citizens and prosecute them, I'm thinking of Laurie Berenson in Peru, we object to that - to secret military trials in other countries for our citizens, are we being consistent?
GEORGE TERWILLIGER: I think we are, because we have my foreign nationals who are arrested in the United States for ordinary crimes, of a whole variety from petty crime, to white collar crime and so forth. And those persons are afforded the due process that comes with our criminal justice system. But when you engage in an act of war, if an American went overseas and flew an airplane into a building somewhere else and were arrested and tried, I don't think we would expect them to be in a criminal court. The fact of the matter is that what has taken place here is an unprecedented act of war against the U.S. civilian population, and I think the President is simply preserving the option to deal with that in a way that also secures our interests in preventing further violence by not necessarily disclosing sources and methods of evidence.
LAURA MURPHY: When there is a formal declaration of war and there are prisoners of war seized by the United States, then the Geneva Convention applies and there's a method for trying prisoners of war that comport with international standards. But I think the American people have every interest in making sure that the procedures used to prosecute terrorists are fair, and these are unfair procedures, because it's in our interest for the government to get this right, because if they prosecute someone innocent or if they prosecute the wrong people, then that means that the terrorists are still at large. And so the American people I think will put up with due process because they want to make sure, they want to have the comfort of knowing that we got the right people.
GEORGE TERWILLIGER: Well, I think, Gwen, if I may, I'm constrained to observe that it is an insult to the military to suggest that they can't afford someone a fair trial. The Uniform Code of Military Justice is replete with due process.
LAURA MURPHY: What about rules of evidence, what about jury trials?
GWEN IFILL: Let me get back to him. Does this mean it's also an insult to civilian courts, to take this out of the civilian courts?
GEORGE TERWILLIGER: No, not at all, because, you see, we have two sets of jurisdiction here: One set of jurisdiction of the civilian courts to deal with crimes; another set of jurisdiction derived from the Constitution, upheld by the Supreme Court, to deal with acts of war against the United States committed on U.S. soil, and controlled from abroad. It is simply an exercise of the same type of process under a different set of circumstances. The criminal justice system has been an abject failure as a counter terrorism measure. This wouldn't have happened if the criminal justice system were an effective deterrent. It's not been. And the fact of the matter is what we have to do here is use a method of defense and use the law as a civilized nation as we are in a way that will be effective to accomplish the goal of securing the American public.
GWEN IFILL: One of the things this President said in defending this was that he needed to be able to preserve the intelligence capabilities of the government and be able to keep certain secrets that would otherwise jeopardize the prosecution.
LAURA MURPHY: Listen, we have a law that protects classified information, it's called the Classified Information Procedures Act - and a digest, a summary of the charges are presented to the defendant and to the jury. So there are ways to protect classified information within our current system. There are also ways to protect jurors in our current system. So I think that this resolution, this executive order is premature. And let me just say that this very same Supreme Court that upheld the use of this military tribunal was the same Supreme Court that upheld Japanese internment. The Supreme Court doesn't always get it right, and as a matter of policy we should be concerned about the kind of precedent that no judicial review, no method of appeal except to the President himself, the executive branch ends up being the judge, jury and executioner literally.
GWEN IFILL: That's all the time we have. We're going to have to leave it right there up in the air. Thank you both very much.