Justice in the Shadows: Invoking Wartime Powers, Bush Can Try Suspected Terrorists in Secretive Military Tribunals. Will He Do It?

Article excerpt

Byline: Michael Isikoff and Stuart Taylor Jr.

William Barr can vividly recall his moment of inspiration. A Justice Department lawyer--and later attorney general--under the first President Bush, he walked by a plaque outside his office commemorating the trial of Nazi saboteurs captured during World War II. The men were tried and most were executed in secret by a military tribunal--a swift piece of wartime justice authorized by Franklin D. Roosevelt and affirmed 8-0 by the Supreme Court. Excited by the idea, Barr floated a novel proposal: why not do the same thing to the terrorists responsible for the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland?

Back then, the idea didn't take. But in the days after the September 11 attacks Barr, now a private lawyer, once again floated it with top White House officials--and this time found allies arriving at the same conclusion. Last week President George W. Bush signed an order allowing the use of military tribunals in terrorist cases. The sweeping document, patterned after similar actions taken by FDR and Abraham Lincoln, gives the government the power to try, sentence--and even execute--suspected foreign terrorists in secrecy, under special rules that would deny them constitutional rights and allow no chance to appeal. Aides say Bush insisted he alone should decide who goes before the military court.

Civil libertarians called the plan a dangerous overreaction that puts Americans' basic rights in jeopardy. Vice President Dick Cheney bluntly dismissed their complaints. "Those who plot against our country will not be allowed to abuse our protections or our freedoms," he said.

In recent years the United States has tried terrorists in criminal court. But administration lawyers found the prospect of prosecuting hundreds of Al Qaeda members daunting. Jurors and judges would be at constant risk. Just shuttling the defendants from jail cells to courtrooms each morning would be a logistical nightmare. "You'd have to cordon off half the island of Manhattan," says one official. There was also the problem of evidence: much of the damning material the United States has comes from intelligence agencies and would be too sensitive to disclose in open court. A lot of intelligence is inadmissible hearsay. …