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. As one administration lawyer admitted, the government might have a “hard time” proving its cases.
Looking to history, the White House found a way around the problem. In the days after September 11, NEWSWEEK has learned, Justice Department lawyers began drafting a secret legal memorandum. The United States, they concluded, was in a state of “armed conflict” that allowed the president to invoke his broad wartime powers.
The president first used the memo as the legal basis for his order to bomb Afghanistan. Weeks later the lawyers concluded that Bush could use his expanded powers to form a military court for captured terrorists. A panel of judges, not a jury, would decide guilt or innocence. Convictions may not require a unanimous vote, just a two-thirds majority. And the government wouldn’t have to prove its case “beyond a reasonable doubt.” Officials envision holding the trials on aircraft carriers or desert islands.
The order permits the president to use military trials for any non-U.S. citizen if there is reason to believe he is an international terrorist–or has “aided or abetted” or “knowingly harbored” one. This includes green-card holders, as well as the hundreds of aliens rounded up after September 11. But senior officials insist they foresee using military courts sparingly–perhaps only for top Al Qaeda members. “It is [our] intention to hold trials that are fair and that are public if we can,” says White House counsel Alberto Gonzales. “If anything is done in secret it will be based upon national-security needs.”
The assurances didn’t quiet complaints that the executive order is too broad and could victimize innocent people. People wrongly accused could wind up secretly imprisoned for months with no knowledge of the charges against them. “Many of our people are scared–and surprised that our country would go to this level where there is no due process,” says Nihad Awad of the Council on American-Islamic Relations.
The critics may have more sleepless nights ahead. Next on the agenda: easing restrictions on FBI undercover work, allowing agents to gather more intelligence on terrorist groups. As one official put it, “We’re looking at everything.”
