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Assistant Attorney General Michael Chertoff
Senators question military tribunals
Justice Department official defends military trials of non-citizens
accused of attacking civilians


WASHINGTON, Nov. 28 —  A Justice Department official told the Senate Judiciary Committee Wednesday that the military tribunals authorized by President Bush to conduct trials of terrorists would only be applied to a strictly defined group of non-citizens, “enemy belligerents” who had attacked innocent American civilians. Assistant Attorney General Michael Chertoff faced skeptical questioning from senators perturbed by Bush’s Nov. 13 executive order allowing the tribunals.

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Nov. 27 — Authorities in Michigan are “inviting” young Arab men in the United States on temporary visas to report to the police for questioning. NBC’s Pete Williams reports.

       BUSH’S EXECUTIVE order is akin to one issued in 1942 by President Franklin Roosevelt allowing for the military trial of eight Nazi saboteurs who landed on the East Coast of the United States intending to blow up factories and railroads.
“We’re talking about people who can be tried for committing crimes against the laws of war, meaning that they are enemy belligerents who have engaged in or supported hostilities against the United States through unlawful means such as, for example, the deliberate targeting of civilians,” Chertoff said in response to a question from Sen. Dick Durbin, D-Ill.
       “There’s no doubt that now we are certainly in a state of armed conflict,” Chertoff said. “We’ve been the subject of an unprovoked wanton attack designed to inflict maximum harm on American citizens.”
       But Chertoff added that Supreme Court decisions had established that a congressional declaration of war was not necessary for the president to use his power to create military tribunals.
       He emphasized that military tribunals would not be used in cases of non-citizens charged with “garden variety criminal offenses.”
Read President Bush's executive order on military trials for accused terrorists

       Using a hypothetical case, Chertoff said, “if we apprehended 50 al-Qaida terrorists in the field in Afghanistan, the president might well wonder whether it made sense from the standpoint of our national security to bring those people back to the United States, put them in a courtroom in New York or Washington, or Alexandria and try them.”
In response to a question from Sen. Mitch McConnell, R-Ky., Chertoff confirmed that none of the more than 500 people being detained by the federal government in the wake of the Sept. 11 attacks are citizens of the United States.
       “This whole discussion is about people who are not citizens of the United States and I think it is important to remember that,” McConnell said.
       In a line of decisions going back to 1896, the Supreme Court has held that even though non-citizens are not entitled to the full range of constitutional rights that citizens enjoy, they are granted some protections under the Due Process clause of the Fifth Amendment.
       McConnell said allowing a criminal trial with full due process protections for a non-citizen accused of terrorism against Americans would lead to a news media spectacle much like the 1995 O.J. Simpson trial. “It would be further incentive to foreign agents to make sure they got caught here” rather than outside the United States, McConnell contended.
       Chertoff agreed, “the last thing we want to do is create the perverse incentive for terrorists to feel they ought to come into this country because then they’d get a higher measure of (legal) protection than they would get if they were caught in the field” outside the United States.
Several senators complained that the president had not asked them first before issuing his executive order on military tribunals.
       Sen. Arlen Specter, R-Pa., questioned whether the president really had the power to create military tribunals, suggesting that the Constitution gives that power to Congress alone.
       “The administration has preferred to go it alone with no authorization or prior consultation with the legislative branch,” said Sen. Patrick Leahy, D-Vt., the committee chairman.
       But while the senators complained about Bush’s executive order, they did not indicate they were planning to take steps to try to overturn it or countermand it.
       In 1942, the Supreme Court upheld the creation of military tribunals to try enemy agents who mingle in the civilian population and plan attacks on targets in the United States.
       Chertoff also defended the monitoring of jailhouse conversations between lawyers and some terrorist suspects.
       “Are we being aggressive and hard-nosed? You bet,” Chertoff said. “In the aftermath of Sept. 11, how could we not be?”
       Chertoff said only 16 prisoners’ conversations with lawyers were being monitored by the government— 12 convicted terrorists and four people held on espionage charges. He said none was being held in connection with the Sept. 11 investigation.
Some senators also questioned the indefinite detention of non-citizens whom the Justice Department had refused to identify.
       In a decision handed down last June called Zadvydas v. Davis, the Supreme Court declared that “terrorism or other special circumstances” might justify indefinite “preventive detention” of non-citizens.
       Cases of terrorism might require the courts to give “heightened deference to the judgments of the political branches with respect to matters of national security,” the court said in a decision written by Justice Stephen Breyer.
       Chertoff’s testimony came the day after his boss, Attorney General John Ashcroft, defended the government’s detention of several hundred people following the Sept. 11 terrorist attacks, saying, “We believe we have al-Qaida membership in custody” and that the detentions have foiled new attacks.
       Ashcroft, providing the fullest accounting yet of those in custody, said more than 500 people are being held on alleged immigration law violations and 104 more have been indicted on criminal charges.
       He said the Justice Department “is waging a deliberate campaign of arrest and detention to protect American lives. ... We are removing suspected terrorists who violate the law from our streets to prevent further terrorist attacks.”
       But the attorney general said that only 55 of the 104 people indicted on federal criminal charges are now in custody, with the remainder still at large or released on bail pending their trials.
       At the request of Justice Department lawyers, federal judges have ordered some of the criminal indictments sealed, so not all of the names of those who have been indicted are known.
       Ashcroft told reporters he would not reveal the names of the 548 non-citizens now being detained on immigration charges.

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       “I do not think it is responsible for us in a time of war — when our objective is to save American lives — to advertise to the opposing side that we have al-Qaida membership in custody,” he told reporters.
       “When the United States is at war, I will not share valuable intelligence with our enemies.
       “We might as well mail this list to the Osama bin Laden/al-Qaida network as to release it. The al-Qaida network may be able to get information about which terrorists we have in our custody, but they’ll have to get it on their own and get it from someone other than me.”
       He said a number of other people — he did not disclose how many or who they are — were being held on material witness warrants, which are also under court-ordered seal.
       While no names were revealed, federal documents show Pakistan most often listed as the country of origin by alleged immigration violators.

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       Documents reviewed by The Associated Press offered details about some of the people who have been detained. One was a Palestinian man with a kit to make box cutters; another was a Pakistani man interested in hunting near a nuclear facility.
       In Northern California, an Immigration and Naturalization Service affidavit alleged that Nabil Sarama, a Palestinian, made a false statement to obtain a permanent residency card. Sarama was arrested Sept. 16 in Orlando, Fla., after police found him near a pay phone that had been used to make bomb threats, the documents alleged.
       A search of his suitcase, the affidavit said, turned up a kit capable of making between eight and 12 box cutters - like the weapons used by the Sept. 11 hijackers. He also had a California Department of Motor Vehicles identification card, a Georgia driver’s license, four Florida identification cards and a Palestinian Authority passport.
       Government computer records show that between 1994 and 2001, Sarama entered the United States on at least five occasions through at least five ports and also used passports from Israel and Jordan.
       MSNBC.com’s Tom Curry and the Associated Press contributed to this report.

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