By Nataliya Khyzhnyak and Andrew F. Tully
Americans are proud of their open system of justice. So many were disappointed when their president, George W. Bush, announced that he was authorizing the Defense Department to use military tribunals to hold secret trials of some suspected terrorists. Yesterday, a senior Justice Department official went before Congress to answer senators' questions about the decision.
Washington, 29 November 2001 (RFE/RL) -- A high-ranking member of the U.S. Justice Department has gone before Congress to defend President George W. Bush's decision to have military courts try some suspected foreign terrorists.
Members of the Senate Judiciary Committee closely questioned Assistant Attorney General Michael Chertoff during a hearing yesterday, and some said they were worried about several aspects of the decision.
Bush invoked his authority as commander in chief of the U.S. armed forces when he decided to allow for such trials, which would be held in secret and without juries. He said the practice has precedent. Similar tribunals were set up by President Abraham Lincoln during the American Civil War, in the mid-19th century.
More recently, they were ordered used by President Franklin D. Roosevelt during World War II. It was such a court that tried eight German saboteurs who came ashore from a U-boat. Six were convicted and put to death.
Ordinarily, an American president must consult Congress in judicial matters. For example, every federal judge nominated by the president must be approved by the Senate. But because the president is also the nation's military commander, he does not need the Senate's permission to take action regarding defense matters.
During yesterday's Judiciary Committee hearing, some senators said they believed Bush should have consulted anyway in the spirit of bipartisanship that has characterized much official business in Washington since the terrorist attacks of 11 September. And they said the U.S. might look hypocritical for criticizing other countries for conducting similar military trials.
In his opening remarks, Chertoff said he understood the concerns of some of the senators: "Members of this committee have raised important questions about some of the investigatory steps that we have taken in recent weeks. And I look forward during the course of this hearing to learning more about the committee's specific concerns, but also to having the opportunity to assure the committee that what we are doing is both sound policy and well within constitutional limits."
Senator Patrick Leahy (D-Vermont), the chairman of the committee, acknowledged that, technically, the president need not consult Congress. But he recalled the recent spirit of cooperation in passing a series of laws that will enhance the government's ability to fight terrorism.
Leahy said Bush's decision on military tribunals was not consistent with that spirit: "In the wake of that achievement, the administration has departed from that example to launch a lengthening list of unilateral actions. And that is disappointing, because we had worked together."
Some members of the committee also said the U.S. should be careful about conducting secret military trials. They said America is seen as an example of an open and fair judicial system, and to deviate from that practice would send the wrong message to countries trying to establish their own democratic societies.
One senator making this point was Edward Kennedy (D-Massachusetts). He reminded Chertoff that the U.S. has criticized countries like Egypt, Sudan, and Peru for using closed military trials. He added: "We've criticized Burma, China, Colombia, Malaysia, Nigeria, Russia, Turkey on similar grounds. Yet now we're calling for the use of military tribunals. The concern is: Aren't we doing exactly what we've criticized other nations for doing?"
Another concern raised at the hearing was of "ethnic profiling": singling out certain people for investigation simply because of their ethnic or national backgrounds -- in this case, the Middle East or Afghanistan. Chertoff said it would be inefficient for law-enforcement officials not to narrow their probe in this way.
"We know that, for example, bin Laden has chosen to recruit people from certain countries, or to train people in certain countries, or to instruct people as to how to conduct themselves in terms of what kinds of visas to get or how to make their way into the countries which they've targeted. And we'd be foolish not to look at those criteria."
Not all the senators on the Judiciary Committee were critical of the tribunals. One, Jon Kyl (R-Arizona), said he was offended by the amount of skepticism and criticism surrounding the president's decision. He said Americans elected Bush because they trusted him, and there is no reason not to trust that he will use the military courts justly: "In view of the type of situations that I think we're likely to find, especially abroad, where our military is going to be confronted with situations and military tribunals would most likely be used, it seems to me that the benefit of the doubt should go to the president here."
But for the most part, Chertoff was forced to defend the tribunals. He even had a somewhat testy exchange with Senator Arlen Specter (R-Pennsylvania) over how much the Justice Department was helping the Defense Department set up the military courts.
Chertoff assured Specter that, according to the president's order, the secretary of defense may draw on the expertise of the Justice Department, or any other source, for that matter. Specter said he hoped Chertoff wasn't "waiting for an invitation," as he put it, to help the Defense Department make sure the courts would operate fairly.
Chertoff replied that the Justice Department was "capable of making our voice heard."
Specter, seeming unconvinced, advised Chertoff to "use your telephones" -- in other words, be aggressive in making sure that the military tribunals are just.