After Terror, a Secret Rewriting of Military Law

Life is never simple some other quotes, from here and there:

"Some administration officials involved in the policy declined to be interviewed, or would do so only on the condition they not be identified. Others defended it strongly, saying the administration had a responsibility to consider extraordinary measures to protect the country from a terrifying enemy.

"Everybody who was involved in this process had, in my mind, a white hat on," Timothy E. Flanigan, the former deputy White House counsel, said in an interview. "They were not out to be cowboys or create a radical new legal regime. What they wanted to do was to use existing legal models to assist in the process of saving lives, to get information. And the war on terror is all about information."

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Mr. Berenson, then 36, had been consumed with the nomination of federal judges until he was suddenly reassigned to terrorism issues and thrown into intense, 15-hour workdays, filled with competing urgencies and intermittent new alerts.

"All of a sudden, the curtain was lifted on this incredibly frightening world," he said. "You were spending every day looking at the dossiers of the world's leading terrorists. There was a palpable sense of threat."

As generals prepared for war in Afghanistan, lawyers scrambled to understand how the new campaign against terrorism could be waged within the confines of old laws.

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Mr. Gonzales had made it clear that he wanted Mr. Prosper's group to put forward military commissions as a viable option, officials said. The group laid out three others - criminal trials, military courts-martial and tribunals with both civilian and military members, like those used for Nazi war criminals at Nuremberg.

Representatives of the Justice Department's criminal division, which had prosecuted a string of Qaeda defendants in federal district court over the previous decade, argued that the federal courts could do the job again. The option of toughening criminal laws or adapting the courts, as several European countries had done, was discussed, but only briefly, two officials said.

"The towers were still smoking, literally," Mr. Prosper said. "I remember asking: Can the federal courts in New York handle this? It wasn't a legal question so much as it was logistical. You had 300 Al Qaeda members, potentially. And did we want to put the judges and juries in harm's way?"

Lawyers at the White House saw criminal courts as a minefield, several officials said.

Much of the evidence against terror suspects would be classified intelligence that would be difficult to air in court or too sketchy to meet federal standards, the lawyers warned. Another issue was security: Was it safe to try Osama bin Laden in Manhattan, where he was facing federal charges for the 1998 bombings of American Embassies in East Africa?

I don't discount the white hats thing. I just think that's where the fact that the paving stones on the road to hell are bright shiny good intentions comes in. And why we have checks and balances and why hiding stuff from people who are supposed to know it isn't the best possible idea.

So incredibly damning that there hasn't been a single conviction (or even trial!), even with these boosted powers...

Thing is - when you are the one having to DO something - it is way hard to know what is the right and what the wrong thing, to do.

A Secretive Circle

With the White House in charge, officials said, the planning for tribunals moved forward more quickly, and more secretly. Whole agencies were left out of the discussion. So were most of the government's experts in military and international law.

The legal basis for the administration's approach was laid out on Nov. 6 in a confidential 35-page memorandum sent to Mr. Gonzales from Patrick F. Philbin, a deputy in the Legal Counsel's office. (Attorney General Ashcroft has refused recent Congressional requests for the document, but a copy was reviewed by The Times.)

The memorandum's plain legalese belied its bold assertions.

It said that the president, as commander in chief, has "inherent authority'' to establish military commissions without Congressional authorization. It concluded that the Sept. 11 attacks were "plainly sufficient" to warrant applying the laws of war.

Opening a debate that would later divide the administration, the memorandum also suggested that the White House could apply international law selectively. It stated specifically that trying terrorists under the laws of war "does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants."

Certainly. Why were they hiding things from Condoleezza Rice of all people, though, not to mention Colin Powell?

I think there is a non-white-hat aspect of Cheney doing a power grab, among various white-hat and non-white-hat strands.

On Friday, Nov. 9, Defense Department officials said, Mr. Haynes called the head of the team, Col. Lawrence J. Morris, into his office to review a draft of the presidential order. He was given 30 minutes to study it but was not allowed to keep a copy or even take notes.

The following day, the Army's judge advocate general, Maj. Gen. Thomas J. Romig, hurriedly convened a meeting of senior military lawyers to discuss a response. The group worked through the Veterans Day weekend to prepare suggestions that would have moved the tribunals closer to existing military justice. But when the final document was issued that Tuesday, it reflected none of the officers' ideas, several military officials said. "They hadn't changed a thing," one official said.

In fact, while the military lawyers were pulling together their response, they were unaware that senior administration officials were already at the White House putting finishing touches on the plan. At a meeting that Saturday in the Roosevelt Room, Mr. Cheney led a discussion among Attorney General Ashcroft, Mr. Haynes of the Defense Department, the White House lawyers and a few other aides.

Senior officials of the State Department and the National Security Council staff were excluded from final discussions of the policy, even at a time when they were meeting daily about Afghanistan with the officials who were drafting the order. According to two people involved in the process, Mr. Cheney advocated withholding the draft from Ms. Rice and Secretary Powell

Fascinating article, isn't it?

Are you reading the full version? It is way worth it.

Mr. Bush played only a modest role in the debate, senior administration officials said. In an initial discussion, he agreed that military commissions should be an option, the officials said. Later, Mr. Cheney discussed a draft of the order with Mr. Bush over lunch, one former official said. The president signed the three-page order on Nov. 13.

No ceremony accompanied the signing, and the order was released to the public that day without so much as a press briefing. But its historic significance was unmistakable.

The military could detain and prosecute any foreigner whom the president or his representative determined to have "engaged in, aided or abetted, or conspired to commit" terrorism. Echoing the Roosevelt order, the Bush document promised "free and fair" tribunals but offered few guarantees: There was no promise of public trials, no right to remain silent, no presumption of innocence. As in 1942, guilt did not necessarily have to be proven beyond a reasonable doubt and a death sentence could be imposed even with a divided verdict.

Despite those similarities, some military and international lawyers were struck by the differences.

"The Roosevelt order referred specifically to eight people, the eight Nazi saboteurs," said Mr. Shiffrin, who was then the Defense Department's deputy general counsel for intelligence matters and had studied the Nazi saboteurs' case. "Here we were putting in place a parallel system of justice for a universe of people who we had no idea about - who they would be, how many of them there would be. It was a very dramatic measure."

Nope, just following along with what you're writing so far... will read it in the paper tomorrow morning.

Does sound very important.

The Times has had a lot of these. One feels that they are getting increasingly incredulous that Bush could actually be re-elected and are doing their damndest to say "people!!! wake UP already!!"

As long as it's factual, I have no problem with that.

Well, they were stung by having to admit how they abandoned their investigative stance over the pre-war propaganda.

Now this really gets my dander up:

"Opening a debate that would later divide the administration, the memorandum also suggested that the White House could apply international law selectively. It stated specifically that trying terrorists under the laws of war "does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.""

Dlowan no Offense... I do seem to quite often Question the NY times when it comes to issues like this and military manners considering I have seen so many lies and half truths about the military it is sickening... good read and conspiracy theroy type article though...

Yes - where is the conspiracy stuff, though?

Which specific bits are you questioning, and on what basis?

I don't know how this was all that secret when I heard it being talked about not long after the invasion of Afghanistan. How is it I heard about this and none of you did?

They want to be able to use military tribunals because you don't need a full jury to agree on a verdict, the evidence that is used can be obtained in different ways and isn't as strict those in a civilian court. This was going around several years ago and the NYT is choosing now to talk about it again. Cheap political trick on their part.

Yes - we all agree on what they did and why.

The article is looking at process.

Have you read it, or are you just gonna condemn it because it is the NYT, as I assume Armyvet did (because, for a starter, s/he seems unaware that the article is talking about the military having lots of qualms with the processes decided upon, and having felt very inappropriately kept out of the loop on, and preferring their own style tribunals, which they are said to believe to be very fair and reasonable, and which they have worked very hard on and are proud of)?

It is worth actually looking at, you know, before you condemn it on party lines.

Lets put it this way, I would rather have the terrorists tried in a military court then a US court. We have to many slimy lawyers who would get these guys off and released on the little things knowing these guys were guilty. Cochran and OJ come to mind as well as the current guy defending Scott Peterson. These are the scumbag lawyers I don't like.

What if they are innocent? And the tribunals (which give less rights than military ones do) condemn them - eg,

their lawyers are not permitted to know the full nature of the evidence against them.

The tribunal for Hicks has had 2 members struck off for not being competent for the job - the Pentagon will not replace them...

Quite a lot of evidence emerging of confessions being extorted by torture.

I don't think it simple Baldimo - I know a lot of right wingers will assume the article, and I - am nothing but critical of the US over this - and not bother to read about it.

I am well aware of how difficult it is to decide how to respond judicially to terrorism - look at the Lockerbie trial - but I think the decision making processes about how the alleged terrorists will be tried ought to be a transparent one - (certainly within the upper echelons of your governemt and military and its lawyers!) - it will be done in your names (all those of you who are US citizens) and done TO other nationalities, as well as yours. We all have a stake in how this is done.

Your language, for instance, baldimo, is already assuming that all who are tried ARE terrorists - you appear not to allow for mistakes about this.

It will be a cold day in hell before I believe that any human endeavour - including capturing terrorists - is infallible.