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 hile
many in Congress and the press wait for Thursday's showdown between
Senate Judiciary Committee chairman Patrick Leahy and Attorney General
John Ashcroft over the Bush administration's antiterrorism measures,
a key part of the Democrats' strategy will be previewed in another
hearing, this one scheduled for Tuesday morning.
The session
will focus solely on the issue of using military tribunals to try
foreign terrorist suspects. The commissions, authorized by President
Bush in a November 13 military order, dominated discussion at last
week's committee questioning of top Justice Department official
Michael Chertoff.
Tuesday's session
will be chaired by New York senator Charles Schumer (it is one of
four Judiciary Committee hearings this week, and Leahy apparently
does not have time to chair them all). The witness list includes
Democratic perennial Laurence Tribe, a Harvard Law School professor
who is expected to criticize the president's order.
But anyone
expecting a full-scale attack on Bush's plan will likely be disappointed.
Rather, it appears that Democrats have conceded much of the president's
position and will only ask to be consulted more as the rules for
tribunals are written.
Much of the
argument will focus on points made by Tribe in a recent article,
"Trial by Fury," in The New Republic magazine.
In it, Tribe begins by arguing that the military tribunal order
"goes too far" in infringing civil liberties. But in the
end, Tribe makes a convincing case that the tribunals are not only
constitutional but necessary.
Tribe argues
that Bush may have exceeded his authority by establishing tribunals
without the approval of Congress. While lawmakers did pass a seemingly
comprehensive use-of-force authorization giving the president wide
discretion to conduct the war on terrorism, Tribe says the authorization
lacks the "ritualistic solemnity of a declaration of war"
and therefore "does not justify the same domestic deprivations
that a formal declaration of war might." He then writes that
the president's tribunal order is so flawed that it could theoretically
lead to absurd results — suggesting that Bush might order the
execution of someone acquitted by a tribunal, or that Ashcroft
might use a tribunal to try someone accused of assisting suicides
in Oregon.
"But just
because the order is flawed doesn't mean it can't be mended,"
Tribe continues. Normally, he says, one might look to the Supreme
Court for assistance, but Tribe argues that the justices would be
little more than a "rubber stamp" for Bush's action. Tribe
cites the majority opinion in Bush v. Gore, as well
as the Court's approval of tribunals in the past, as evidence that
the justices would be insufficiently critical. Tribe also hints
that the Court might be vulnerable to intimidation by the president;
he writes that there is evidence that "some nasty behind-the-scenes
arm-twisting by the executive" was behind the Court's unanimous
approval of Franklin Roosevelt's decision to try eight Nazi spies
by tribunal in 1942.
With the Supreme
Court on the sidelines, Tribe writes that Congress must take up
the task of correcting the president's actions. Congress, Tribe
argues, is the only body with the power to investigate the administration's
detention of terrorist suspects and witnesses, as well as its "racial
profiling" of Middle Eastern immigrants and "the array
of other apparent incursions on traditional liberties and privileges...that
Attorney General Ashcroft has instituted."
At that point,
however, Tribe makes an abrupt about-face. Addressing the "fundamental
question of whether the core of the executive order, its gratuitous
branches pruned, is consistent with the Constitution," he answers:
"I think it may well be."
"In wartime,"
Tribe continues, "'due process of law,' both linguistically
and historically, permits trying unlawful combatants for violation
of the laws of war, without a jury or many of the other safeguards
of the Bill of Rights," provided the tribunals are impartial.
In addition, Tribe concedes that there is nothing to suggest that
civilian juries in wartime will be any more fair than military tribunals.
He also admits an uneasiness about lawyers in civilian courts using
procedural arguments to free suspects who "belong to terrorist
cells that slaughter innocent civilians." And lastly, Tribe
worries that civilian trials would "grant an extended pulpit
to an accused bent on claiming martyrdom and capable of stirring
others to further acts of international terror."
Even his criticism
of tribunals doesn't really amount to all that much, Tribe concludes.
"This is not to suggest that those tribunals, at their core,
offend any fundamental constitutional precept," he writes.
Tribe's argument
is likely to get a friendly hearing from temporary chairman Schumer.
At last week's hearing, he said, "I haven't made up my mind"
about tribunals. "I think there is a need for secrecy,"
Schumer continued, "I think those who say we should just have
a regular trial, as if it was someone who held up a candy store
— that doesn't make much sense." It might turn out that
the showdown over tribunals will be considerably less than advertised.
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