U.S. requests pilot's extradition Further charges
                                    could warrant the death penalty
 

In London, the United States began formal proceedings Tuesday to
extradite an Algerian pilot who allegedly trained 4 of the suicide
hijackers who helped carry out the Sept. 11 attacks.

Lotfi Raissi, 27, who authorities believe met with some of the hijackers
in a Las Vegas strategy meeting before the terrorist attacks, lives in
London and has been jailed in Britain since Sept. 21.

A senior U.S. law enforcement official said that Tuesday's extradition
request was just the start of a process that could become more
complicated if U.S. authorities plan to charge Raissi with offenses
punishable by death.

European nations, including Britain, have been opposed to the U.S. use of
the death penalty and have been reluctant to turn over suspects who could
face it.

Although investigators claimed in earlier hearings that Raissi was
unquestionably involved in the attacks, none of the charges leveled
against him in court Tuesday was related to the assaults or would warrant
the death penalty.

Instead, prosecutors requested his transfer to U.S. custody based on 2
charges that Raissi falsified information when he applied for a pilot's
license in the USA.

As prosecutors were moving to transfer custody of Raissi, a federal grand
jury in Arizona issued a new 11-count indictment alleging that he helped
Redouane Dahmani, 26, prepare a fraudulent application for asylum status
in the USA.

Raissi's request for bail was denied by the British court, and a hearing
on the extradition request will be held Dec. 14.

At a hearing soon after his arrest, prosecutors claimed that videotapes
showed Raissi with Hani Hanjour, the pilot U.S. officials believe was at
the controls of the jet that crashed into the Pentagon. Raissi traveled
to the USA several times and visited an aviation school in Arizona at the
same time as Hanjour, prosecutors said.

Instructors at flight schools in Arizona have said they saw Raissi at the
schools with Ziad Samir Jarrah, thought to be one of the hijackers aboard
the jet that crashed in Pennsylvania.

Richard Egan, Raissi's lawyer, has continued to insist his client is
innocent, but he said Tuesday that he fears Raissi might wind up facing
the military tribunals that President Bush has proposed to try terrorist
suspects.

Meanwhile, in Belgium, police rounded up two more people Tuesday for
questioning about a fake passport scheme that could shed some light on
the assassination in early September of Ahmed Shah Massood, leader of the
Northern Alliance. Massood's murder, by two suicide bombers posing as
journalists, is suspected to be part of the overall al-Qaeda terrorist
attack strategy. Passports found on the killers' bodies were apparently
stolen from Belgian consulates in France or the Netherlands, according to
Belgian authorities.

(source: USA Today)

U.S. authorities formally began proceedings Tuesday to extradite an
Algerian pilot who has been accused of training some of the hijackers
who crashed a jet into the Pentagon on Sept. 11. Prosecutors said the
United States is not immediately seeking to extradite Lotfi Raissi, 27,
on charges related to the attack...

http://news.findlaw.com/ap/i/1103/11-27-2001/200111271006867524.html

Read Both Indictments:

US v. Raissi and Dahmani (Nov. 27, 2001) [PDF]
http://news.findlaw.com/hdocs/docs/terrorism/usraissi112701ind.pdf

US v. Raissi (Oct. 9, 2001)  [PDF]
http://news.findlaw.com/hdocs/docs/terrorism/usraissi100901ind.pdf

A Palestinian man with a kit to make box cutters and a Pakistani man
interested in hunting near a nuclear facility are among 603 people
detained by U.S. terrorism investigators, government documents show.
Others were held for alleged violations with no obvious connection to
past or future attacks, according to documents reviewed by The
Associated Press. Attorney General John Ashcroft revealed Tuesday the
government was detaining 603 people. He insisted the actions removed
suspected terrorists from the streets and nabbed members of Osama bin
Laden's network.

http://news.findlaw.com/ap/o/1110/11-28-2001/200111281006957517.html

Read Many Of The Charges In Criminal Cases:
http://news.findlaw.com/legalnews/us/terrorism/cases/index.html

                  Two months ago, the United States was attacked by terrorists who
               sought to disrupt our government and our way of life. They have failed.
               Americans today are more united than ever in our commitment to win
               the war on terrorism and protect the country for the future. An essential
               part of meeting this challenge is protecting the ideals that America
               stands for here at home and around the world.

                  Soon after the vicious attacks of September 11, Congress approved
               strong bipartisan legislation authorizing the use of force against the
               terrorists and those who harbor them. Congress also quickly enacted
               legislation to provide aid to victims and their families, and to rebuild
               Lower Manhattan. We enacted airport security legislation, and an
               antiterrorism bill that gives law enforcement and intelligence officials
               enhanced powers to investigate and prevent terrorism. I'm optimistic
               that Congress will soon approve bipartisan legislation to improve border
               security and to strengthen our defenses against bioterrorism.

                  As these examples demonstrate, our system of constitutional
               government has served us well in this time of crisis. Now is the time to
               defend our Constitution - not to undermine it.

                  At today's hearing, and at the hearings that will follow, the
               Committee will consider the policies and actions by the Administration
               since September 11 that have raised serious questions about basic
               liberties protected by the Constitution. Some of these policies may be
               justified, but they are difficult to evaluate, because of the Justice
               Department's failure to provide information requested by members of
               the Committee.

                  Many of us have serious doubts about both the constitutionality and
               the wisdom of the President's plan to establish military tribunals to try
               foreign suspects apprehended within the United States or overseas. The
               Constitution gives Congress the power to define and punish "offences
               against the law of nations," and to create courts inferior to the Supreme
               Court. Yet Congress has not expressly authorized the kind of military
               commissions contemplated in the President's order.

                  Advocates of military tribunals have argued that foreign terrorist
               suspects do not deserve the same constitutional safeguards - such as the
               right to counsel, proof beyond a reasonable doubt, and appellate
               review - that are given to U.S. citizens in normal criminal cases. These
               safeguards, however, exist to identify the guilty and protect the
               innocent. They are not luxuries to be dispensed with in times of crisis.
               Just this year, the Supreme Court re-affirmed the principle that
               non-citizens within our borders - whether lawful, unlawful, temporary,
               or permanent - are entitled to the same fundamental constitutional
               rights as U.S. citizens.

                  For many years, the United States has strongly criticized the use of
               military tribunals in other countries. If we engage in such practices now,
               it could undermine our position of authority in the world, and limit our
               ability to extradite terrorist suspects apprehended by our allies.

                  In recent years, Congress has expanded the jurisdiction of federal
               courts to cover a wide range of terrorist offenses, and has implemented
               innovative court procedures to protect government secrets. International
               tribunals have been used effectively to try suspected terrorists, in the
               tradition of Nuremberg, Yugoslavia, and Rwanda. The Administration
               has not adequately explained why secret, ad hoc military tribunals
               should be used, instead of established legal forums, either domestic or
               international, to bring the perpetrators of the September 11th attacks to
               justice.

                  I am also deeply concerned about the decision of the Department of
               Justice to monitor attorney-client communications. Detainees have long
               had a constitutional right to speak with their attorneys on a confidential
               basis. The Department's new policy allows monitoring to take place
               without judicial supervision and without even a showing of misconduct
               by the attorney involved. The Department bears a heavy burden to
               explain why existing procedures for investigating crimes and fraud by
               attorneys are inadequate, and why this unprecedented obstruction of
               the right to counsel is constitutional.

                  Similarly, many questions have been raised about the 1200 people or
               more who have been detained since September 11. Some of these
               detainees have been released, although it is not clear how many. Few
               have been linked to terrorist activities. Last month, I joined other
               members of the House and Senate Judiciary Committees in asking
               Attorney General Ashcroft about the status of these detainees. We also
               asked for a briefing. Shortly after that, the Department stopped
               releasing even the numbers of people detained.

                  Finally, many of us are also concerned about the Administration's
               decision to question 5,000 immigrants, almost all of whom are Middle
               Eastern, who recently entered the country legally.

                  Unfortunately, the Department has failed to provide Congress with
               sufficient information to perform its essential oversight role on each of
               these significant issues. I hope that Administration officials will be more
               forthcoming at these Committee hearings.

                  In a speech in 1987, Justice William Brennan observed that the
               United States had repeatedly failed to preserve civil liberties during
               times of national crisis - from the Alien and Sedition Acts of 1798, to the
               internment of Japanese Americans during World War II - only to later
               realize "remorsefully . . . that the abrogation of civil liberties was
               unnecessary." As we face another crisis today, I am hopeful that we can
               avoid the errors of the past. To do this, the Administration and Congress
               must share information and work together, as we did in the weeks
               immediately following the September 11th attacks, to bring the terrorists
               to justice, to enhance our security, and to preserve and protect our
               Constitution.

                A long-term resident of the United States who President Bush believes may have
                aided a terrorist can now be tried in secret by a military commission and be
                sentenced to death on the basis of hearsay and rumor with no appeal
                to any civilian court, even the Supreme Court. This is the upshot of the
                "military order" issued by Bush on November 13, 2001. And that is not
                all. Noncitizens suspected of membership in Al Qaeda or of aiming "to
                cause injury to or adverse effects on the United States" can be
                rounded up and "detained at an appropriate location" for an indefinite
                time without access to the courts.

                This is the kind of "military justice" now in effect for our alleged
                enemies both foreign and domestic. No wonder so many experts on
                wartime tribunals believe that "military justice is to justice as military
                music is to music." The role of the military is to win wars, to protect
                citizens, and to follow the orders of the commander in chief. Under our
                constitutional system of civilian control over the military, it is not the
                role of military subordinates to question and challenge determinations
                made by the president, and in every case coming before a military
                commission pursuant to this new order, the president will have already
                "determined" that there is reason to believe that the suspect is a
                terrorist. Command influence over these military tribunals will be
                inevitable.

                Nor will the suspect have any real opportunity to defend himself, since
                the ordinary rules of evidence will not be followed. The commission will
                be allowed to base its decision on any evidence that would "have
                probative value to a reasonable person." Translated from the legalese,
                this means that hearsay, coerced confessions, and fruits of illegal
                searches can be considered, and that cross-examinations will not
                always be allowed. It also means that the prosecution need not even
                disclose the sources of its hearsay if such disclosure would reveal a
                "state secret"—a broad term nowhere defined.

                      The president's order raises the prospect
                            of mass detentions of noncitizens.

                It's one thing to subject prisoners of war who are captured on foreign
                battlefields to secret military tribunals. Though secret military trials of
                Bin Laden and his foreign associates may be unwise, they would be
                constitutional. It is quite another thing to treat American residents,
                some with long ties to this country, as if they had no rights under our
                constitution. There are no Supreme Court precedents justifying secret
                military trials of American residents who are not citizens and who are
                accused of domestic crimes. Those nonresidents who tried to blow up
                the World Trade Center back in 1993 were tried in a federal court and
                convicted, after being accorded the full panoply of constitutional
                rights. So were the Al Qaeda terrorists who blew up American
                embassies in Africa. The independent jury in the latter case refused to
                do the government's bidding on sentencing, declining to impose the
                death sentence.

                That is the proper function of a jury—to
                follow its own lights on sentencing within the
                bounds of law. And it is precisely this
                independence that President Bush wants to
                avoid by placing "justice" against suspected
                terrorists within the chain of military
                command. But in a post-Civil War case, the
                Supreme Court ruled that as long as civilian
                courts remain open, civilians must be tried in
                such courts, rather than in military tribunals.
                That case involved an American citizen, but
                the Court suggested no distinction between
                citizens and residents. In a World War II
                case, the Supreme Court upheld a military
                tribunal's conviction and execution of Nazi
                spies who had landed in the United States,
                but they were German soldiers out of
                uniform, and a long tradition of military justice makes such spies
                subject to military tribunals. This tradition does not apply to long-term
                American residents suspected of aiding terrorists.

                In addition to the specter of kangaroo courts trying suspected
                terrorists, the president's order raises the prospect of mass detentions
                of noncitizens. Although the order specifies that the detainees must be
                treated humanely, without any "adverse distinction based on race," it is
                clear that the detainees will be primarily Arab and Muslim. We are
                unlikely to experience a repetition of the detention of more than
                100,000 Japanese Americans—citizens and noncitizens alike—which
                followed the attack on Pearl Harbor. But it is certainly possible we will
                see mass detentions of the sort that occurred in Hawaii between 1942
                and 1945, when martial law was declared and most civil courts closed.
                Many businesspeople in Hawaii favored martial law and were actually
                disappointed when it ended following the Japanese surrender in 1945.
                They liked the tough law-and-order approach taken by the military and
                approved of the lower crime rates that accompanied military justice.
                The fact that thousands of innocent people—mostly of Asian
                background—were detained or falsely charged did not seem to be of
                concern to these good citizens.

                I was not surprised to read The Wall Street Journal's editorial in favor
                of the Bush order. The Journal editors don't much like our constitutional
                system of justice, with its emphasis on procedural safeguards,
                exclusionary rules, and the right to a vigorous defense. They see
                terrorism as a justification—an excuse—for ridding us of "the excesses
                of the modern U.S. criminal justice system," with its rigorous "standards
                of evidence," its "exclusionary rule," and "the legal artifice of Johnnie
                Cochran."

                The real danger is that many Americans, not only the editors of The
                Wall Street Journal, have always distrusted our constitutional system of
                justice, with its historical preference for the acquittal of the guilty over
                the conviction of the innocent. They prefer a more streamlined system,
                with fewer safeguards and fewer acquittals. They trust the government
                to bring only the guilty to trial.

                The war against terrorism—unlike previous wars—will not end on a date
                specific. We may never declare victory. The military approach to
                justice reflected in the Bush order may well persist indefinitely, and
                perhaps even expand in its scope. Its visible successes, undiscounted
                by its less visible failures, will encourage many Americans to view the
                military approach to trials—which favors efficiency and certainty over
                fairness and resolution of doubts in favor of the accused—as the norm
                rather than the exception. This must never be allowed to happen, if our
                liberties are to be preserved. As the Supreme Court said, in ruling that
                Abraham Lincoln had violated the Constitution by subjecting
                Confederate sympathizers to military tribunals:

                . . . [Our constitution] foresaw that troublous times would arise, when
                rulers and people would become restive under restraint and seek by
                sharp and decisive measures to accomplish ends deemed just and
                proper; and that the principles of constitutional liberty would be in
                peril, unless established by irrepealable law. . . .

                This nation . . . has no right to expect that it always will have wise and
                humane rulers, sincerely attached to the principles of the Constitution.
                Wicked men, ambitious of power, with hatred of liberty and contempt
                of law, may fill the place once occupied by Washington and Lincoln;
                and if this right [to suspend provisions of the Constitution during the
                great exigencies of government] is conceded, and the calamities of
                war again befall us, the dangers to human liberty are frightful to
                contemplate.

                We must begin to contemplate these dangers now, in the face of
                President Bush's tyrannical order. 

                • Permit extended detention and questioning of Middle Easterners
                recently entering United States.

                • Slow down the process for granting visas to Muslims.

                • Allow monitoring of communications between people in federal
                custody and their lawyers.

                • Non-U.S. citizens charged with terrorism
                can be tried in the United States, overseas,
                or even on military ships.

                • Suspects brought before a tribunal will
                have no right to seek redress in any state,
                federal, foreign, or international court.

                • Defendants could include suspects who
                attack Americans or U.S. interests.

                • May hold and try suspects in secret, with
                no public scrutiny. Freedom of Information
                Act may not apply.

                • Could impose any sentence, including
                death, with no judicial review.

                • May allow conviction after a "full and fair" trial by a two-thirds
                majority, as opposed to unanimous verdict.

                • Tribunals need not obey the principles of law and the rules of
                evidence used in U.S. District Courts.

                • Only the president or the secretary of defense will have the power to
                overturn a tribunal's decisions.

                • The executive order has no apparent expiration date.

                • The order applies specifically to Al Qaeda. 

                   November 26, 2001, 3:16 AM EST

                   WASHINGTON -- President Bush said Monday he's not the least bit concerned
                   that U.S. allies are balking at administration plans to prosecute suspected
                   terrorists before military tribunals.

                   "It is the right decision to make and I will explain that to any leader who asks,"
                   Bush said during a brief news conference in the White House Rose Garden.

                   The president responded to a decision by Spain not to extradite a group of
                   al-Qaida suspects it has in custody unless the United States promises that the
                   suspects won't face the death penalty or trial in a military court.

                   Bush, a supporter of the death penalty, signed an order earlier this month
                   allowing the Pentagon to form military courts to try non-U.S. citizens suspected
                   of terrorism. The action has been criticized by members of Congress and civil
                   libertarians who say the U.S. civilian court system and due-process protections
                   should be made available to terrorism suspects.

                   "I look forward to explaining to my friend, the president of Spain, why I made the
                   decision. It makes imminent sense to have the military tribunal option
                   available," Bush said. "It makes sense for national security purposes. It makes
                   sense for the protection of potential jurors and it makes sense for homeland
                   security."

                   White House lawyers have said military tribunals could be conducted in secret
                   outside the United States to protect against retaliation and the exposure of U.S.
                   intelligence.

                   Attorney General John Ashcroft plans to appear before Congress in early
                   December to defend Bush's anti-terrorism campaign.

                   Some lawmakers have said that recent actions to fight terrorism go too far in
                   usurping civil liberties. For example, more than 1,000 people have been arrested
                   or detained following the Sept. 11 terrorist attacks.

                   Bush's order allowing secret military tribunals to try noncitizens has drawn fire from both Democrats and Republicans, as has Justice Department approval of eavesdropping on conversations between defense lawyers and some terrorist suspects.

                   "Just a few weeks ago, the administration asked us for new authority to declare certain crimes terrorism so they could be tried in the courts of America," Sen. Richard Durbin, D-Ill., said on CNN's "Late Edition."
 

                   "I think the administration, and the attorney general specifically, need to come forward in the next week or so and spell out in more detail what the lines are, how they'll draw them and define them, in terms of applying these military tribunals."

                   Sen. Richard Shelby, R-Ala., noted on NBC that the Supreme Court upheld military tribunals during World War II.

                   "These are extraordinary times and I believe you have to have extraordinary measures," said Shelby, ranking Republican on the Senate Intelligence Committee. "We are in a war and I believe President Bush is on the right track here.

                   "I think of the victims in New York. I think of the victims over here in the Pentagon. I think of the victims in our embassies. I think of the victims in Khobar Towers (in Saudi Arabia). There has to be justice, and this will be justice," Shelby added.

                   In a related matter, a Justice Department memo outlined the questions for federal investigators to ask 5,000 male foreigners, ages 18 to 33. The men come from countries in the Middle East and elsewhere, and entered the United States after Jan. 1, 2000. While the men are not suspected of any crimes, officials hope they can help with the investigation.

                   The memo, first reported by the Detroit Free Press, tells investigators to ask whether the person knows anyone who has fought in a war; anyone who acted in a "surprising or inappropriate way" to the Sept. 11 attacks; anyone involved in terrorism or willing to carry out terrorist attacks; or anyone with access to  guns, explosives or chemical or biological weapons such as anthrax.

                   Shelby rejected any assertion that the department was engaged in racial profiling of Arabs. "You've got to go where the evidence leads you," he said.

One more reason for the USA to abolish the death penalty is that its increasingly isolated resort to this punishment is undermining international cooperation on law enforcement, concludes an Amnesty International report issued today.

     Amnesty International's report, No return to execution - The US death penalty as a barrier to extradition, gives an overview of the emerging global consensus against capital punishment, and the simultaneous growth of extradition protections against this penalty.

     This has been demonstrated in the past few days with the reports that Spain will not extradite eight alleged members of Al-Qa'ida to the USA where they could face the death penalty or trial by military commissions recently announced by presidential order.  Landmark rulings earlier this year by the highest courts in Canada and South Africa provide more examples of this.

     As more and more countries turn against capital punishment, they are at the same time refusing to send criminal suspects to the United States or any other retentionist country without first receiving guarantees that the individual will not be subject to the death penalty.

     "To date, the USA has reacted to the global abolitionist trend by adopting a bunker mentality rather than embracing the aspirations of the international community," Amnesty International said.

     Amnesty International fears that in its "war against terrorism" the US government -- a strong proponent of judicial killing -- may resort to tactics to circumvent extradition protections.  As the report illustrates, there is a history of US conduct -- including the use of abduction -- that fuels such concern.  Amnesty International believes that for justice to be done, and to be seen to be done, governments must maintain scrupulous standards of legality and transparency. To do otherwise, the report concludes, will only serve to undermine the search for justice, damage the reputation of the United States, and cause problems in international relations.

     "The solution to the barriers raised in capital extraditions is not the weakening of extradition safeguards as some have suggested -- it is the total abolition of the death penalty," Amnesty International said.

                 Nov. 15 — President Bush's order establishing military commissions to put
                 non-U.S. citizens accused of terrorism on trial will make it easier for the
                 government to win convictions — a decision civil libertarians believe could
                 compromise the basic rights the United States has defended.

                                      On Tuesday, President Bush signed an order
                                      authorizing military tribunals to conduct trials involving
                                      non-U.S citizens accused of terrorism, the first move of
                                      its kind since World War II.

                                      In the emergency executive order, which did not need
                                      Congress' approval, Bush said the detention and trial
                                      of accused terrorists by a military tribunal was
                                      necessary "to protect the United States and its citizens,
                                      and for the effective conduct of military operations and
                                      prevention of terrorist attacks."

                                      Under the order, the president determines who is
                                      considered a terrorist suspect to be detained by the
                                      Department of Defense. The Department of Defense is
                                      developing policies and procedures governing military
                                      commissions, rules of procedure and evidence, as
                                      well qualifications for counsel in the proceedings.

                                      Secretary of Defense Donald Rumsfeld would then be
                                      responsible for setting up the meeting time and
                                      location of the commission, including whether or not it
                                      would meet outside the United States. The Secretary of
                                      Defense would also ensure that suspects are provided
                                      with care while under arrest and that their rights are not
                                      violated.

                 However, some critics believe a military commission will only be used to target and
                 condemn suspects the Bush administration believes are terrorists in a tactic lacking
                 due process.

                 "The government gets to decide first that you're guilty, then it puts you through the
                 process to affirm that you're guilty," Morton H. Halperin, a senior fellow at the Council
                 on Foreign Relations told The Associated Press. "I don't think constitutionally you can
                 do that."

                 Some are disturbed by the Bush administration's decision and believe that the order's
                 focus on non-U.S. citizens — including lawful permanent residents — could
                 jeopardize people's rights.

                 "The use of military tribunals would apparently authorize secret trials without a jury
                 and without the requirement of a unanimous verdict and would limit a defendant's
                 opportunities to confront the evidence against him and choose his own lawyer," said
                 Laura Murphy, director of the American Civil Liberties Union in Washington, D.C.

                 Rights as Citizens of the World

                 When asked about whether a tribunal would violate the rights of terrorist suspects,
                 administration officials said they were not entitled to the same rights as the American
                 citizens they are accused of targeting.

                 "They don't deserve the same guarantees and safeguards that we use for an
                 American citizen," Vice President Dick Cheney said Wednesday. "They will have a fair
                 trial under the procedures of the military tribunal."

                 Stressing that a military commission was the most appropriate place to try terrorists
                 captured in Afghanistan or elsewhere, Attorney General John Ashcroft said, "Foreign
                 terrorists who commit war crimes against the United States in my judgment are not
                 entitled to and do not deserve the protections of the American Constitution."

                 But some experts noted that if the United States' war on terrorism is a global issue,
                 the tribunal must make sure suspects' fundamental rights at a trial are preserved.

                 "As a citizen of the world, one could assume they ought to be entitled to the same
                 human civil rights under various international treaties the United States has
                 co-signed on," said Philip Cave of the National Institute of Military Justice in
                 Washington.

                 A Prosecution’s Court

                 Unlike a more conventional criminal court, a military trial could be held secretly. It is
                 considered a prosecution-friendly environment, where prosecutors could present
                 evidence that would not normally be allowed in regular legal proceedings. Hearsay
                 evidence and information obtained from wiretapping — not allowed in some regular
                 court proceedings — could be allowed in military trials.

                 Suspects retain the right to have a lawyer and a trial by jury, but experts say it is
                 unclear whether the defense would have access to all the evidence prosecutors
                 would present. Military commissions are called in secret to preserve confidential
                 information and the methods and sources investigators used to gather evidence
                 against suspects.

                 "The discussions normally revolve around the secrecy of the presentation of evidence
                 and possibly even classified information, and intelligence gathering," Cave said. "It's
                 [defense access to evidence] been an ongoing issue in military courts during
                 court-martial proceedings. But prosecutors are able to present more evidence and it's
                 easier for them to convict."

                 Still, critics argue that Bush's order was not justified and that confidential information
                 and methods were at stake when the U.S. legal system convicted terrorists in the
                 1993 World Trade Center bombings and the 1998 bombing of U.S. embassies in
                 Africa.

                 "It is difficult to understand how the administration can justify the use of a tribunal
                 when the United States has successfully tried in our courts non-citizens accused of
                 terrorist acts, organized crime, and others in situations where the safety of jurors and
                 the disclosure of government intelligence methods were at issue," said Murphy.

                 "There is already a system established to handle classified information in the course
                 of a trial — the Classified Information Procedures Act. For decades, CIPA has
                 adequately balanced national security and due process concerns. The government
                 has made no showing that CIPA procedures would not be adequate in these
                 circumstances as well."

                 An Informal War

                 Military commissions date to the late 17th century. They were last convened in the
                 United States under orders from President Franklin Roosevelt, who used a tribunal to
                 convict six German saboteurs who secretly landed on U.S. shores in 1942. The U.S.
                 Supreme Court upheld the constitutionality of the proceeding.

                 Military tribunals have also been used during the Civil War and World War II after the
                 United States has formally declared war. Though administration officials have
                 repeatedly referred to the United States' campaign in Afghanistan against Osama bin
                 Laden and the Taliban as a "war" on terrorism, Bush has not made a formal
                 declaration of war.

                 Experts are not sure whether the absence of a formal declaration of war affects
                 Bush's order for a military tribunal. The enemy in the war on terrorism is not one
                 particular nation or a uniformed army, and some believe formal declaration of war at
                 this point could leave the United States vulnerable to accusations of war atrocities.

                 "There are raging discussions about this as we speak," Cave said. "No one really
                 knows. As of the moment, we're not in a formal declaration of war. We've heard a lot of
                 people refer to it as a 'war' but there's a big difference between rhetoric and an actual
                 war. What that [a declaration of war] does is that it has a dramatic impact on those
                 who are fighting the war. … You may have to start dealing with Taliban accusations of
                 Northern Alliance members committing atrocities and executing people right in front
                 of American soldiers."

                The mantra is simple: September 11 changed everything.
                None of us realized how prophetic those words would be.
                Not only have our daily lives changed, but the Bush administration, in
                response to September 11, has adopted a series of policies that
                threaten to change the fundamental principles on which America is
                founded. Some of those policies violate our concept of basic rights and
                liberties, and threaten the carefully calibrated balance of power
                established by our constitution.

                Initially, the Bush administration detained 1200 immigrants in secrecy.
                Their names and the charges against them have been withheld. Next, it
                permitted eavesdropping on conversations between attorneys and
                clients suspected of engaging in terrorism. And on November 13,
                President George W. Bush signed an executive order allowing for the
                trial of suspected noncitizen "terrorists" by military commissions.

                The executive order, apparently issued without the involvement of
                Congress, imbues the president with the power to subject a person to
                trial before a military tribunal. Under circumstances where "there is
                reason to believe" that a person "is or was a member of . . . al Qaeda"
                or "has engaged in, aided or abetted, or conspired to commit acts of
                international terrorism . . . " s/he would be subject to the executive
                order. Likewise, a person who "knowingly harbored one or more
                individuals" described above falls within its ambit.

                The military tribunal would have the authority to operate in secret and
                without providing defendants with due-process protections. It is
                antithetical to our long-honored precepts of fundamental fairness—a
                hallmark of American jurisprudence. It should be opposed by every
                member of our community.

                Pursuant to the executive order, decisions of
                the military tribunals may be based, in part,
                upon hearsay and other evidence that would
                not be admissible in civilian courts. The
                military judges, subject to command
                influence, are not independent, as are federal
                judges with lifetime appointments. A military
                commission need not reach a unanimous
                verdict but may convict by a vote of
                two-thirds of the members of the commission
                present at the time of voting, and only a
                majority need be present. The standard
                applied by those judges may be less than
                "beyond a reasonable doubt," which is
                required for conviction in criminal trials.
                Lastly, a conviction, which might lead to a
                sentence of death or life imprisonment, may
                not be appealed to a civilian court. A convicted person's only response
                is to petition the president.

                This scheme removes both Congress and the judiciary from any
                involvement in the standards to be applied in the trial of these
                suspects. It gives the executive branch the authority to determine the
                rules and to select the judges, and even then it need not convince all
                the judges of the guilt of the accused. All of this may be conducted in
                secrecy, free from public scrutiny. No wonder this idea has met with
                opposition by people representing a cross-section of the political
                spectrum.

                Of course we want every person who was involved in planning and
                executing the attack on the World Trade Center, or who has engaged
                in other terrorist activities, to be brought to justice. But it is imperative
                that we insure that those convicted are in fact guilty. That is why
                America has, throughout its history, followed a proud tradition of
                guaranteeing a fair trial and insuring due process of law to criminal
                defendants. That is why we recoil at the idea of holding trials in secret.

                Openness and a fair process are requirements for every trial. So is the
                appointment of an independent decision maker, to avoid accusations of
                bias or conflict of interest. Proof "beyond a reasonable doubt" is
                intended to insure that the convicted person is actually guilty of the
                crime charged. Alarmingly, Bush's executive order abandons many of
                the due-process protections intended to protect the wrongfully
                accused. Even, perhaps especially, in these precarious times, we must
                adhere to the principles and values of our constitutional democracy
                when we create a process for trying those accused of terrorism. It is
                the process, or lack thereof, that reveals who we are as a society.

                How will the world react to convictions by these secret courts? What
                will members of the Islamic faith think when they learn that members of
                their community were convicted behind closed doors? How will we
                respond to chants by multitudes claiming that those convicted were
                not given a fair trial? And surely the charges of hypocrisy will be lodged
                against us. Will we ever be able to condemn governments who fail to
                offer Americans held as terrorists a fair trial (e.g., Lori Berenson in
                Peru)?

                We need not travel down this treacherous road. The recent trials in the
                United States District Court for the Southern District of New York of
                the men accused of bombing American embassies in Kenya and
                Tanzania have demonstrated that we need not eliminate the principles
                of fairness in order to obtain convictions. The suggested alternative of
                holding international tribunals with appropriate procedural protections,
                in which America would prosecute the accused, is one that deserves
                serious consideration.

                Military tribunals were last utilized in the 1940s. But it is not enough to
                say that that amounts to a precedent justifying these new actions.
                Just as we have rejected slavery, once an "honored tradition" in parts
                of our nation, and just as we would now reject placing innocent
                Japanese Americans in internment camps, we should reject
                military-style tribunals for noncitizens accused of terrorism. Moreover,
                our notions of what constitutes fairness have evolved over the last 56</