Torrance Daily Breeze

December 12, 2001

Sparring Over Military Tribunals Intensifies on Capitol Hill

By Toby Eckert
Copley News Service

WASHINGTON -- The military tribunals President Bush wants to use to try suspected terrorists will be unconstitutional without congressional authorization, Rep. Jane Harman, D-Redondo Beach, said Wednesday.

""We think that is the right thing for them to do, to try the top al- Qaeda leadership apprehended in Afghanistan, either on American military bases overseas or...on American aircraft carriers overseas,'' said Harman, who introduced authorizing legislation with Rep. Zoe Lofgren, D-San Jose. 

""But we believe that absent authorization from Congress, they would be violating our Constitution.''

But White House spokeswoman Claire Buchan said Bush already ""has the full authority under the Constitution, under the law, to establish'' the tribunals. Bush has said they are necessary to protect civilian jurors from danger and to prevent the disclosure of sensitive intelligence.

Harman is the top Democrat on the House terrorism and homeland security subcommittee.

Her legislation would authorize military tribunals for foreign nationals captured outside the United States and charged with offenses arising from the Sept. 11 terrorist attacks. No legal U.S. residents could be brought before the tribunals.

The legislation also specifies that the tribunals must be held outside the United States, on a military base or aircraft carrier; preserves ""habeas corpus'' rights of judicial review; mandates detailed reporting to Congress about the trials; and ends authorization for the tribunals at the end of 2005.

Numerous lawmakers and legal experts have been wary of Bush's Nov. 13 order allowing military tribunals to try foreigners charged with terrorism. But it is uncertain how much traction Harman's legislation will get on Capitol Hill.

Bush's move has been popular with the public and no Republicans appeared with Harman and Lofgren when they unveiled the bill.

""The American people trust the president,'' Sen. John Warner, R-Va., said at a Senate Armed Services Committee hearing on the issue Wednesday. ""The question is now does the Congress trust our president to use his constitutionally granted power?''

But Harman called her bill ""a very conservative legal approach to this subject matter.''

""Our legislation ensures the right balance between protecting constitutional principles and taking strong action which is justified against these international terrorists,'' she said.

Senate Armed Services Committee Chairman Carl Levin, D-Mich., told reporters there is not enough time left in the congressional session to pass ""complicated'' authorizing legislation.

It is clear that the administration's approach to the military tribunals is still evolving. The Justice Department has decided to try the first suspect indicted in the Sept. 11 attacks, Zacarias Moussaoui, in federal court, and the Defense Department is still drafting rules for the military tribunals.

The decision on Moussaoui ""is an illustration on how carefully the president plans to employ this tool he has created,'' Defense Department lawyer William J. Haynes II told the Senate committee.

White House spokesman Ari Fleischer said Bush consulted with Attorney General John Ashcroft and determined that neither national security nor intelligence sources would be jeopardized by a civilian trial for Moussaoui.

A military trial is still possible in the case, Fleischer added.
""If subsequent information were to be received in the course of developing facts and information, the president's options remain open,'' he said.