military tribunals to try citizens and aliens alike: where in a wartime situation there are no operable civilian courts; where, before peace is declared, there is to be a trial of wartime atrocities against the internationally recognized laws of war; where spies attached to a belligerent nation have been caught behind our lines. In all other situations they have refused, in inspired language, to depart from a legal tradition so old, so important, and so much a part of what we stand for.

There is, in short, a high Constitutional presumption of civilian trials, except in a few identified situations during quite traditional wars, recognized as such by the Congress, where we could lose our freedoms to another nation. I will not argue today whether a war on many forms of terrorism continuing until this century-long modern phenomenon is ended will, unlike a war on the murderous Colombian cartels or the Mafia, qualify as a war for the Supreme Court's jurisprudence on military trials. I doubt it. In any event, the detention provisions of the same Presidential order clearly do not satisfy the specified Constitution criteria for extra-judicial detention: "invasion or rebellion" leading Congress to suspend habeas corpus. I don't need the heavy presumption, captured by Jefferson in the Declaration of Independence, to make my case. Ñor need I refer to the last six words of the pledge of allegiance. Like almost everyone else who has studied how nations have handled terrorism, I ask only that the government consider and specify openly what are the costs and benefits of any change in democratic traditions it proposes. If Attorney General Ashcroft or President Bush had done this with regard to the importance and scope of their prospective change from civilian courts to secret military tribunals, the public would not accept the change. Certainly the Congress would not agree to it.

Let me review the benefits, costs, and inflammatory breadth of the President's order.

The benefits. The proposal will help solve whatever problem remains after more than two decades of legislation and proud law enforcement experience in dealing with the difficulties of civilian trials of terrorists and spies. The Congress has passed "extra-territorial" criminal statutes that apply stern measures to terrorism committed abroad against Americans. It has passed statutes allowing special electronic and physical searches of spies and terrorists from other countries and has just extended, in a very sensible way, their scope.5 Two decades ago I helped author a statute to allow trials while protecting national secrets. The intelligence investigators and prosecutors have used it with immense success. We have decades of experience in protecting witnesses. There is precedent, from the United Kingdom, that allows the conviction, as a conspirator or accomplice, of someone who has aided terrorists without proof that he had to know of the specific crime.7 We have on several occasions flown back to the U.S. for trial terrorists arrested by U.S. intelligence or law enforcement half-way around the world.8 In our courts there is no available exclusionary rule or other defense for a non-American searched or captured abroad, even if the search or arrest did not comply with the requirements of the Fourth (or any other) Amendment for searches and seizures in the United States.9

Using these well-developed capacities, we have had remarkable success in trying and convicting the terrorists responsible for the bombings of the World Trade Center in 1993 and our embassies in Kenya and Tanzania. I have a hard time thinking of the prosecutorial benefits of military tribunals over civilian tribunals so fully empowered as ours, except that the military tribunals could, by selection or message from higher authority, use their secrecy, their lesser burden of proof, and the possibility of conviction by a two/thirds vote to convict without even the evidence that a jury of angry, patriotic Americans would demand.

The costs. What then are the costs of authorizing for all non-citizens indefinite detention without trial or, alternatively, a secret military trial with secret or untested evidence before a military panel chosen and evaluated by their commander, without

render the military independent of, and superior to, the civil power." Id. at para 14. "He has made judges dependent on his will alone, for the tenure of their offices, and the amount of payment of their salaries." Id. at para. 11.

4 E.g., Hostage Taking Act, 18 U.S.C. §50 U.S.C. §§ 2331-2332 (2001) (killing of U.S. citizens abroad).

5 Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1811 (2001).

6 Classified Information Procedures Act, 18 U.S.C. §§ 1-16 (2001).

7 Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 3 All E.R. 1140. See also Regina v. Bainbridge [1960] 1 Q.B. 129.

8 E.g., U.S. v. Yunis, 924F.2d 1086, 1089 (D.C. Cir. 1991); Christopher Drew, FBI Captures Lebanese Hijacking Suspect at Sea, CHICAGO TRIBUNE, Sept. 18, 1987, at 1.; Christopher John Farley et al., Going Without a Prayer: An Inside Look at How the FBI and CIA Nabbed an Infamous Suspect After a Global, Four-Year Manhunt, TIME, June 30, 1997, at 34.

9 U.S. v. Verdugo-Urguides, 494 U.S. 259 (1990); U.S.

judicial review of the adequacy of the evidence. To these must be added a possible death sentence for any of about 18 million non-citizens living in the United States (about one-third of whom may have violated their terms of entry) 10 whenever the executive decides they have engaged, or are engaged, in terrorism related or unrelated to al Qaeda. I will list only a dozen such costs.

(1) The authorization claims the critical powers-executive detention unreviewable in any court and secret military trials of a police state, at the unreviewed discretion of the executive, over millions of individuals lawfully living in the United States, based on an unreviewed suspicion of unidentified forms of support of undefined political violence with an unspecific international connection. In doing so it will undermine the support and loyalty of many millions here in the U.S. and their relatives abroad.11 At the same time it will stifle speech and legitimate dissent among those covered.

(2) If sustained by Congress and the courts, it would create a precedent very likely to be applicable to citizens. The Supreme Court declined to draw any distinction between citizens and aliens in Ex Parte Quirin. The “military order" itself is careful to preserve the "lawful authority of the Secretary of Defense. . .to detain or try any person. . .not subject to this order."

(3) It relegates the Congress as well as the courts to a position of impotence in addressing one of the most fundamental questions about how much of our democratic tradition we will preserve. Nothing in the joint resolution of September 18, 2001, that authorized the use of "necessary and appropriate" force, remotely considers (approves or rejects) military detention and secret trials in the United States. 12

(4) It deprives the U.S. of its historic claim of moral leadership among the world's nations in matters of fairness to individuals, leaving us in the position of encouraging the outrages of dictators like President Mugabe. 13 It will make more difficult future efforts at military coalition-building.

(5) It has denied us, and will deny us, the benefits of legal cooperation with our closest allies in the form of extradition and mutual legal assistance. 14

(6) It will create resentment, fear, and suspicion of the military, our most respected profession, undoing much of the benefits of more than a century during which the Posse Comitatus Act has protected the military from public fear and resentment. 15

(7) It will end a twenty-year successful effort to win respect and trust for a longridiculed military justice system.

(8) It undermines public confidence in the ability of our law enforcement to handle cases of international terrorism-confidence hard-earned with the patient, intelligent legislative help of the U.S. Congress.

(9) It will leave lasting doubts about the honesty of convictions in the wake of secret trials with secret evidence. 16

(10) It will teach American children, particularly the children of immigrants, that this is not a nation "with liberty and justice for all."

(11) If we are at "war," the President's order directly conflicts with our obligations under Article 102 of the Geneva Convention on Prisoners of War that requires trials of prisoners of war, even for war crimes, only under "the same procedure" as we use in Courts Martial of our own soldiers. 17

10 The 200 census counted 28.4 million foreign-born residents of whom 37.4% were citizens. We had 24 million vists from tourists in 1999 plus 6.5 students, business, and worker visits. 11 Greg Winter, Some Mideast Immigrants, Shaken, Ponder Leaving U.S., N.Y. TIMES, Nov. 23, 2001, available at www.nytimes.com: Jodi Wilgoren, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, 'Why?', N.Y. TIMES, Nov. 25, 2001, available at www.nytimes.com.

12 Unlike the "military order," the joint resolution is also limited to those thought to be involved with the attacks of September 11th.

13 Fred Hiatt, Democracy: Our Best Defense, WASHINGTON POST, Nov. 19, 2001, at A21. 14 Sam Dillon & Donald G. McNeil, Jr., A Nation Challenged: The Legal Front; Spain Sets Hurdles for Extractions, N.Y. TIMES, Nov. 24, 2001, at A1.; William Safire, Essay: Kangaroo Curts, N.Y. TIMES, Nov. 26, 2001, at A17.

15 Posse Comitatus Act, 18 U.S.C. § 1385 (2001).

16 C.f. Boris I. Bittker, The World War II German Saboteurs/Case and Writ of Certiorari before judgment by the Court of Appeals: A Tale of None Pro Tone Jurisdiction, 14 Const. Commentary 431, 451 nl. (1997) (citing Eugene Rachlis, They Came to Kill: The Story of Eight Nazi Saboteurs in America (Random House, 1961, 156-159)). In 1942, eight Nazi Saboteurs were arrested on U.S. soil and tried before a Military Commission. The FBI attributed the unmasking of the Saboteurs to the extraordinary sleuthing of its agents althought the proximate cause of the capture was the defection of one of the saboteurs.

17 For a Court Martial, as well as for any other properly authorized military tribunal, he is directed by the very statute on which the claimed authority for the "military order" of November 13, 2001 is based-to "apply the principles of law and the rules of evidence generally recog

(12) Unless a secret military tribunal whose personnel are chosen and later evaluated by the executive is an "independent and impartial tribunal," it also violates Article 14 of another treaty we have signed and ratified (The International Covenant on Civil and Political Rights). A non-independent tribunal is legal only if the President determines and announces that we are in a situation "which threatens the life of the nation." 18

The drafting. Bypassing Congressional and judicial review, the order is drafted with an appalling carelessness as to its over-broad scope. Most citizens and commentators think that it applies only to military or terrorist leaders captured abroad who have violated the laws of war. At the President's discretion:

1. It applies within the Unites States to 18 million non-citizens and it applies throughout the world to the citizens of every nation.

2. It applies to acts committed decades ago and to persons only remotely connected to those acts.

3. It allows indefinite discretionary detention without plans for any trial, even before a military tribunal.

4. It attempts to suspend habeas corpus without Congressional action or compliance with the Constitutional requirements of "invasion or rebellion."

5. It has many applications the Supreme Court will not permit under the Court's requirement, where civil courts can operate, of a violation of the law of war. For example, harboring an ex-terrorist is not a violation of the law of war (or else our officials who have hosted leaders of other nations who fall in this category are war criminals.)

6. It allows the President to decide when a threatening form of group crime becomes a war justifying detention and military tribunals, and to exercise that authority, without Congressional sanction. Using language with the sweep of the commerce clause of our Constitution, he has exercised that judgement by applying the order to relatively minor acts of terrorism (any act that carried "adverse effects on the U.S... economy ") and not just to massive attacks such as those of September 11, 2001.

My conclusion is simple. It should be a proud and patriotic responsibility of the Congress to protect the people of the United States against the unnecessarily dangerous path of recourse to military tribunals and detention without trial which the President has taken in response to public fears. President Bush has said that it is our traditional freedoms that al Qaeda, and its like, fear and envy. We must be prepared to fight for these traditions admired around the world. We must not surrender any fundamental liberty without manifest necessity and Congressional review. There is no such necessity and there has been no such review in the case of President Bush's "Military Order" of November 13, 2001.

APPENDIX A

Western European countries have taken cautious steps to eliminate the risks of intimidation. Germany centralized the prosecution and adjudication functions in the case of terrorism, providing special protection for those responsible. For terrorist trials, France eliminated the participation of a majority of lay individuals who act as fact-finders in felony trials, substituting a panel of judges all but one of whom is anonymous. More dramatically, trials of narco-terrorists and other terrorists in Colombia take place before a single judge whose identity is carefully hidden.

Closest to the U.S. common law tradition was the situation of Great Britain in Northern Ireland. The British ?Diplock Courts? are perhaps the most famous of the special anti-terrorism courts in operation. Lord Diplock headed a Commission to evaluate the operation of the Northern Ireland justice system when opposition to internment without judicial trial had led the government to seek alternative ways of processing court cases involving paramilitaries. He concluded that intimidation of jurors by the defendants and their colleagues and ?perverse? verdicts rendered by jurors sympathizing with the cause of the government?s opponents made jury trials impractical.

The Diplock Commission recommended implementation of special "Diplock" courts for the trial of specified offenses such as murder, weapons offenses, bombings, and the like. Such courts are presided over by a single judge but without the normal jury. The trials have been public; defendants have had legal representation and

nized in the trial of criminal cases in the United States district courts "so far as he considers practicable."

18 Article 14, International Covenant of Civil and Political Rights, 999 U.N.T.S 171, entered into foce Mar. 23, 1976; United National General Assembly Resolution 2200A [XX1]. 16 December 1966.

could cross-examine witnesses against them. The standard for conviction has remained guilt beyond a reasonable doubt. Defendants have an unfettered right to appeal if found guilty. Judges are required to provide a written opinion regarding their views of the law and the facts of the case when rendering a verdict. Their reasoning can be challenged on appeal.

Britain's attorney general is empowered to decide, at the request of defense counsel, if specific cases involving scheduled offenses should be "certified out" as not being political in nature. Cases that are "certified out" revert back to the regular jury trial courts. In 1995, the attorney general approved 932 of 1,234 applications for removal from Diplock Court. In that year 418 people were tried for scheduled offenses in Diplock Court and 395 were convicted (360 of these pleaded guilty). Of the 58 defendants who pleaded not guilty, 23 (40%) were found not guilty at trial. These uses of special courts have been careful and their purpose, avoiding intimidation of fact finders, is important. But special courts always create special fears because the motivation for special courts has not always been merely to deal with intimidation. Secret courts, instituted by the military to further its purposes have been used in Guatemala, Argentina, Chile, and elsewhere. The purpose was less to deal with threats than to assure that the fact finders would be sympathetic to the views of the government.

Chairman LEAHY. We are going to ask some questions and give you a chance to give us more.

Mr. Bell?

STATEMENT OF GRIFFIN B. BELL, SENIOR PARTNER, KING & SPALDING, AND FORMER ATTORNEY GENERAL OF THE UNITED STATES

Mr. BELL. I have filed a statement, so I am just going to be very short. I am posing it by trying to answer questions that have been raised in the public arena.

Did the President have power to issue this order setting up military tribunals? I don't think there is any doubt that he had power. I don't think there is anything irregular about it. I don't think there is anything illegitimate about it.

I picked out three cases. First, in the Revolution, Major John Andre was tried by a military tribunal. He was the negotiator with the traitor Benedict Arnold. After the Civil War, the commander of the Andersonville Prison camp, Captain Wirtz, was tried by a military tribunal in Washington, although he lived in Georgia, and was executed. We tried the German spies that everyone has been talking about, but we also tried General Yamashita after World War II ended in a military tribunal convened by General MacArthur, not by the President but by General MacArthur. So military tribunals are not uncommon in time of war.

Now, is the focus of the President's order too broad? I think not. First, it has to be-what he does, if he puts someone under this order, it has to be in the interest of the United States. He has to have reason to believe that the person is a member of Al Qaeda or is engaged in international terrorism acts or has harbored someone who did.

What procedures are to be followed by the military court, a tribunal? We don't know yet because they haven't been promulgated, but there are some things in the order that tell us some elements of due process. The order says that the defendant will be afforded counsel, there will be a record made of the trial, and that the evidence will be that which has probative value to a reasonable person. Incidentally, the same standard that was set out by General MacArthur when General Yamashita was tried.

Will the trial be without a jury? Yes. This is true with our own soldiers who are prosecuted under the Code of Military Justice. There is no jury. It is hard for me to understand why we would want to give someone charged with international terrorism a jury when our own soldiers would not have a jury if they were being prosecuted.

We can assume that military officers serving on the military court martial or tribunal would be no less fair than a civil jury. I read a comment by Secretary of War Stimson who said during World War II in a biography of General Marshall on that very subject, when he said, "All the civilians wanted to shoot the Germans after the war, but the military wanted to have fair trials.” So I think we shouldn't assume that juries somehow or another are fairer than military officers.

Will the trial be secret? No, and I think it is nonsense to contend otherwise. The order does not say so. The order protects classified information. When I was Attorney General, we began to prosecute spies or espionage cases again after a long period of time, and we had to deal with courts on how to try cases where we had to protect sources and methods and foreign intelligence, and we were able to do that. And the idea was that lawyers every day tried trade secret cases, and you don't make the trade secrets public. So we found ways to do that. We tried people who, for example, had stolen plans from the CIA and sold them to the Russians for satellite plans, and we tried a jury trial without making the plans available to the public. So we know how to try cases of this kind. I think that is what it means, but the Secretary of Defense might very well spell out what that means.

What of the conviction by a two-thirds vote? If we were trying one of our own servicemen, everything would be by two-thirds vote, every crime, except life, which would be three-fourths, and death, which would be unanimous. That is a debatable question, a fair question to debate, and the Code of Military Justice might very well be considered by the Secretary of Defense.

What is the burden and quantum of proof? I would say it would be reasonable to follow what was used in General Yamashita's trial.

Lastly, what of the right to appeal? In military tribunals, there is no general right of appeal, but this order does not preclude writs of habeas corpus, and it is beyond my imagination that you couldn't use a writ of habeas corpus if someone was tried in the United States. I think you cannot use a writ on a decision by Justice Jackson for non-resident aliens or a case tried in some other country. I think that is settled. But in this country, no.

I would like to suggest one thing to the Committee. I have high regard for the Judiciary Committee. I have appeared here many times. I think it would be well to wait until the Secretary promulgates these orders, rules, and regulations before you finally conclude this matter. Some of these questions probably will be cleared up at that time, and I think we need to give the Secretary of Defense a chance to allay a lot of the worries that people have. Thank you.

[The prepared statement of Mr. Bell follows:]