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Kennedy was very, very worried. "Many of us bipartisans [sic]
have been critical of these military tribunals," the senior
Democrat on the Senate Judiciary Committee said Tuesday at hearings
on President Bush's decision to use military courts to try some
foreign terrorism suspects. Kennedy said the U.S. strongly criticized
a military court in Peru when American Lori Berenson was tried on
terrorism charges. In addition, Kennedy said, "We've stated
that military tribunals in Sudan do not provide procedural safeguards.
We've criticized Burma, China, Colombia, Malaysia, Nigeria, Russia,
and Turkey on similar grounds." Kennedy paused. "Yet now
we're calling for the use of military tribunals," he said.
"The concern is, aren't we doing exactly what we've criticized
other nations for doing?"
No, said first
witness Michael Chertoff, chief of the Justice Department's criminal
division. The United States has "a long tradition of using
military commissions and using them fairly," Chertoff explained.
"The fact of the matter is, whether you have a civilian tribunal
or a military tribunal, it's possible to have a fair one and it's
possible to have an unfair one. It's not how you characterize it,
it's how you implement it."
So it went
as Senate Democrats had their first crack at a top Justice Department
official over the issue of tribunals, detention of terrorist suspects
and witnesses, and other Bush antiterrorism policies. Democrats
warned of unconstitutional kangaroo courts that would make a travesty
of justice. They worried that, in the words of Sen. Russ Feingold,
the Justice Department was not doing enough "to reach out to
the Arab and Muslim community in a way that would be less offensive
and more constructive and confidence-building for both parties."
And they worried that antiterrorism courts would alienate America's
friends abroad. "Would these military tribunals be worth jeopardizing
the cooperation we expect and need from our allies?" committee
chairman Patrick Leahy asked.
Chertoff tried
to explain the potential need for tribunals. "There may be
policy reasons in some instances to choose the alternative approach
of a military commission," he testified. "If it were to
turn out that we apprehended 50 al Qaeda terrorists in the field
in Afghanistan, the president might well wonder whether it made
sense from the standpoint of our national security to bring those
people back to the United States, put them in a courtroom in New
York or in Washington or in Alexandria and try them."
Leahy wasn't
satisfied. But as concerned as he and his fellow Democrats seemed
about the tribunals themselves, it appeared that the one aspect
of the issue that disturbed them more than anything else was that
George W. Bush didn't check with them first before taking action
by executive order. "Rather than respect the checks and balances
that make up our constitutional framework," Leahy charged,
"the executive branch has chosen to...cut out Congress in determining
the appropriate tribunal and procedures to try terrorists."
Leahy was particularly
angry about the extensive talks that went on between Congress and
the White House during the passage of antiterrorism bill. "At
no time during those discussions — and there were a lot of
them, with you, with the president, with the attorney general —
at no time was the question of military commissions brought up,"
the chairman said tersely.
Leahy demanded
to know when the administration first considered the tribunal issue.
Chertoff said he wasn't sure. "Well, when did you first hear
about it?" Leahy asked. Chertoff said it was "some weeks"
ago.
"Did you
hear discussions about it prior to our discussions here in the committee?"
Leahy continued. "You didn't feel it at all necessary to tell
any of us that you were discussing that?"
In polite terms,
Chertoff answered that the president simply did not need to consult
with Congress about the tribunal issue. Chertoff explained that
during the negotiations on the antiterrorism bill, Bush was acting
in his role as chief law-enforcement officer of the United States.
But when Bush signed the executive order on military tribunals,
he was using his war powers as commander-in-chief. One act required
consultation with Congress; the other didn't.
Leahy and most
Democrats remained unconvinced. But it is not clear whether their
strategy will result in any political damage to the administration.
While a front-page story in the Washington Post reports that
"an expanding coalition of lawmakers and civil liberties groups
is complaining that Attorney General John D. Ashcroft's campaign
against terrorism has gone too far," another front-page story
in the same paper says the American public strongly supports the
administration's actions. Fifty-nine percent of those polled support
military tribunals for non-citizens charged with terrorism. Eighty-six
percent say the United States is justified in detaining people on
immigration-law violations, and 73 percent say it should be legal
for the federal government to wiretap conversations between people
who are being held on terrorism charges and their lawyers.
In that atmosphere,
it will likely be hard for Ted Kennedy and his colleagues to sell
the idea that the United States might be headed the way of China,
Sudan, and Peru. But that doesn't mean they will stop trying.
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