Legal Scholars Criticize Wording Of Bush Order
Accused Can Be Detained Indefinitely
By George Lardner Jr.
Washington Post Staff Writer
Monday, December 3, 2001; Page A10
President Bush's order empowering him to initiate military trials for suspected foreign terrorists also appears to permit the indefinite detention, without trial, of anyone the president determines is "subject" to the order, according to constitutional scholars and legal experts who have studied the directive.
Administration officials said Bush does not intend to designate anyone under the order that he does not think can and should be tried before a military commission. White House counsel Alberto R. Gonzales said in a New York Times op-ed column Friday that those taken into custody "must be chargeable with offenses against the international laws of war, like targeting civilians or hiding in civilian populations and refusing to bear arms openly."
But the Nov. 13 directive itself does not say that. It allows the president to order the military detention of any individual the president has "reason to believe" is or was a member of al Qaeda or who took part in "international terrorism" directed at the United States or who knowingly harbored such culprits.
The order then says that "if the individual is to be tried," he or she must be tried by a military commission using rules and procedures to be designed by the Pentagon.
"That clearly contemplates holding people without trial," said Harvard law professor Philip Heymann. "A person is to be detained whether he is to be tried or not tried."
The White House says that Bush will not certify anyone to be detained under the order unless that person has "violated a law of war," but the murkiness of the language in the order is just one example of what some lawyers and Senate staffers say is exceedingly broad and careless draftsmanship.
"The order is rife with constitutional problems and riddled with flaws," said Laurence H. Tribe, professor of constitutional law at Harvard. He said its reach is so sweeping that it could snap up not only terrorist leaders caught overseas but also any resident immigrant who might have once "knowingly harbored" a past or present member of al Qaeda or who is "believed" to have "aided or abetted . . . acts in preparation" for international terrorism.
Tribe pointed out that the order also contains no definition of "international terrorism," thereby inviting arbitrary and possibly discriminatory decisions about who is to be tried. Bush's directive also gives the commission jurisdiction to try people not only for violations of the laws of war but also for all "other applicable laws."
Even if the president administers the order in limited fashion, as administration officials have suggested, "it's 'trust me, trust me, trust me,' " a Senate Democratic staffer protested. "That's not the way we do things."
Administration officials have spoken in terms of trials overseas of senior al Qaeda leaders and their Taliban collaborators -- a prospect that has met with widespread approval.
"In order to be fully within the scope of this order, you would have to be someone who could be tried for committing crimes against the laws of war, meaning, an enemy belligerent who has engaged in or supported hostilities against the United States," Assistant Attorney General Michael Chertoff told the Senate Judiciary Committee on Wednesday. "So that's a fairly high standard, I would think, and it doesn't apply to people who are in custody for garden-variety criminal offenses."
Gonzales voiced the same theme at an American Bar Association conference on national security law Friday, dismissing as "totally unfounded" the idea that ordinary green-card holders could be hauled before military tribunals for "ordinary crimes." He said the administration was after "enemy soldiers" -- until reminded that "enemy soldiers" are entitled to the protections of the Geneva Convention.
Gonzales amended himself to describe the quarry as "unlawful combatants" who are not so protected.
Heymann, a former deputy U.S. attorney general, said he has been struck by the contrast between the administration's rhetoric and the content of the Nov. 13 order, which he said was drafted "with an appalling carelessness."
Far from being limited to terrorist leaders captured abroad in violation of the laws of war, Heymann said the order covers 18 million foreign-born, non-U.S. citizens living in this country, most of them legally.
Under the order, Heymann said, "whenever the president suspects that one of them may have been a terrorist in the past, or is a terrorist, or has aided a terrorist, or has harbored a terrorist," even decades ago, the president has the power to send that person to a trial "before three colonels" who could convict and sentence on a two-thirds vote.
Another potential problem, Heymann said, is that there is "no law of war, at the moment, on terrorism."
Under Bush's directive, Secretary of Defense Donald H. Rumsfeld could transfer a detainee to another government agency for civilian prosecution. But Heymann, Tribe and Yale-Johns Hopkins law professor Ruth Wedgwood all agreed in interviews that the order as it stands also permits indefinite detentions without trial.
Tribe called this "very troublesome" unless some judicial review were provided. Wedgwood said such detentions might be useful although they could last for a very long time. Prisoners of war and "unprivileged combatants" are normally released when a war ends, she said, but there may be no end to a war on terrorism.
"This is an 'if tried' order, not a 'when tried' order," Wedgwood added at the ABA conference. She said it also might be "the better part of valor" to detain top al Qaeda suspects without trying them, at least until the conflict has subsided.
The question of judicial review offers another contrast between what the order says and what it has been construed to mean. Borrowing the words of a 1942 proclamation issued by President Franklin D. Roosevelt in the case of eight Nazi saboteurs, Bush has decreed that anyone covered by his order "shall not be privileged to seek any remedy" in any court here or abroad.
In the Nazis' case, the Supreme Court nonetheless agreed to review the saboteurs' habeas corpus petition challenging their military trial -- and rejected it, holding their prosecution to be constitutional. Gonzales shorthands this by saying that "the [Bush] order preserves judicial review in civilian courts" for anyone arrested or detained in the United States even though the order itself, like Roosevelt's, says the opposite.
Responding to complaints that Bush's order would permit loose rules of evidence, lax standards of proof and less than unanimous verdicts, White House and Justice Department officials are now calling the directive "a first step" and saying the Pentagon might come out with rules more favorable to defendants. Gonzales has also said that nothing in Bush's order requiressecret trials, and he has hinted that only portions of the proceedings may have to be closed to protect classified information.
Despite such possible concessions, Tribe and others say Congress has to step in. Appealing to courts, Tribe said, won't work because the judiciary has always been "extremely deferential to the executive in cases of arguable military emergencies" and anyone who relies on the current Supreme Court for relief is "whistling in the wind."
Instead of appealing to the international community for support, Tribe said, Bush's order presents a face that says " 'I am the president and if I suspect someone of being a terrorist, no one can interfere.' It sounds like an assertion of dictatorial power, more than it can possibly be. It would be a favor to the president to have Congress authorize some limited use of military tribunals and give it the legal force the president wants it to have. If it is circumscribed by the Pentagon, that is really floating on thin ice."
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