National Emergency Construction Authority Executive Order
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, I declared a national emergency that requires the use of the Armed Forces of the United States, by Proclamation 7463 of September 14, 2001, because of the terrorist attacks on the World Trade Center and the Pentagon, and because of the continuing and immediate threat to the national security of the United States of further terrorist attacks. To provide additional authority to the Department of Defense to respond to that threat, and in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), I hereby order that the emergency construction authority at 10 U.S.C. 2808 is invoked and made available in accordance with its terms to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.
GEORGE W. BUSH
THE WHITE HOUSE,
November 16, 2001.
Monday November 19, 2001
Bush Defends Military Court Option in U.S. Attacks
By Patricia Wilson
WASHINGTON (Reuters) - President Bush (news - web sites) on Monday rejected criticism of his plan to create special military tribunals to try non-Americans accused in the Sept. 11 attacks, calling it ''the absolute right thing to do.''
``The option to use a military tribunal in a time of war makes a lot of sense,'' Bush told reporters in the Oval Office after a Cabinet meeting. ``We're fighting a war against the most evil kinds of people and I need to have that extraordinary option at my fingertips.''
``I ought to be able to have that option available should we ever bring one of these al Qaeda members in alive,'' Bush said in his first public remarks on the subject.
The order, signed last week, would allow the U.S. military to set up tribunals, for the first time since World War Two, to try foreigners accused in the Sept. 11 attacks as war criminals. It drew criticism across the political spectrum.
Unlike regular U.S. criminal trials that require 12-person juries to reach a unanimous verdict, the tribunals, with military officers as judge and jury, can convict by a two-thirds vote.
A two-thirds vote also is required for the sentence, which may include the death penalty. Trials may be held in secret. Procedures and composition of the courts are to be determined by the U.S. defense secretary and military commanders.
The move drew strong range of reactions -- from a liberal senator worried about summary executions to a conservative warning of ``kangaroo courts.''
But Bush forcefully defended his action.
``These are extraordinary times,'' he said. ``And I would remind those who don't understand the decision I made that Franklin Roosevelt made the same decision in World War Two. Those were extraordinary times as well.
``I'd say it is the absolute right thing to do ...To the critics I say, I made the absolute right decision.''
Bush said the military tribunal option was in U.S. national security interests and also in the interests of the safety of potential jurors.
``This government will do everything we can to defend the American people, within the confines of our constitution, and that's exactly how we're proceeding,'' he told reporters.
Conservative columnist William Safire wrote last week in the New York Times that with the tribunals, Bush would ``get away with the replacement of the American rule of law with military kangaroo courts.''
``It's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values,'' Safire said. ``The solution is not to corrupt our judicial tradition by making (Osama) bin Laden the star of a new Star Chamber'' -- a reference to a secret, unfair legal proceeding.
The Saudi-born bin Laden and his al Qaeda network have been accused by U.S. officials of planning and financing the hijacked plane attacks on the World Trade Center and Pentagon (news - web sites) that killed some 4,600 people.
Senator Patrick Leahy, the judiciary committee chairman, said Bush's order ``sends a message to the world that it is acceptable to hold secret trials and summary executions, without the possibility of judicial review, at least when the defendant is a foreign national.''
The Vermont Democrat questioned whether Bush could legally authorize military commissions to try persons who have been arrested in the United States.
``There has been no formal declaration of war, and in the meantime, our civilian courts remain open and available to try suspected terrorists,'' Leahy said.
Liberal groups denounced the military tribunals.
Ralph Neas, president of the People for the American Way Foundation, called for emergency congressional hearings into the ``relentless assault on civil liberties.''
Neas criticized Attorney General John Ashcroft (news - web sites) for supporting military courts he said would fail to provide the principles, standards and safeguards of the U.S. legal system.
The New York-based Center for Constitutional Rights said of the military tribunals, ``These courts are set up to convict.'' It said basic constitutional principles had not been suspended in past national crises.
Saturday November 24, 2001
1878 Military Law Gets New Attention
By T.A. BADGER, Associated Press Writer
SAN ANTONIO (AP) - America's military is largely prohibited from acting as a domestic police force, but with the increased fears of terrorism, some experts say it's time to rethink those restrictions.
``Our way of life has forever changed,'' wrote Sen. John Warner (news - bio - voting record), R-Va., in a letter last month to Defense Secretary Donald Rumsfeld. ``Should this law now be changed to enable our active-duty military to more fully join other domestic assets in this war against terrorism?''
The law, known as the Posse Comitatus Act, was championed by Southern lawmakers in 1878 who were angry about the widespread use of the Army in post-Civil War law enforcement.
It currently bans the Army, Navy, Air Force and Marines from participating in arrests, searches, seizure of evidence and other police-type activity on U.S. soil. The Coast Guard and National Guard troops under the control of state governors are excluded from the act.
Deputy Defense Secretary Paul Wolfowitz, testifying in October before the Senate Armed Services Committee (news - web sites), agreed that it might be desirable to give federal troops more of a role in domestic policing to prevent terrorism.
``In certain cases we can do more than anyone else in the country because of the special capabilities that we have,'' he said.
Those roles could be varied, such as helping local law enforcement in the event of a terrorist attack, patrolling the nation's borders or serving as armed sky marshals aboard flights over the United States.
But the issue of expanding the military's domestic reach sharply divides lawyers who have spent years studying Posse Comitatus, Latin for ``power of the county.''
Dennis Corrigan, a retired colonel who taught the law at the Army's Judge Advocate General's school, says legislators should resist the urge to change it.
The military isn't trained to be a police force, he says, so it should stick to the skills for which it is trained: surveillance, information gathering, logistical support. All of these activities are allowable under Posse Comitatus.
``There should be a partnership between the military and civilian sectors - the civilian doing the confrontation and the military providing support,'' said Corrigan, now a businessman living in Gilford, N.H. ``I'm not sure, even with what's going on today, that Congress wants the military arresting people.''
Jeffrey Addicott, a retired lieutenant colonel in the Army JAG Corps, wrote that the law handcuffs the nation when it comes to responding to terrorist attacks.
``We've got a homeland defense office, but if there's not reforms, the Posse Comitatus Act will cut them off at the knees,'' Addicott, now a law professor at St. Mary's University in San Antonio, said in a recent interview.
``This is a new kind of war,'' Addicott said. ``We have to make a compromise now to prevent these guys from committing an act of terror on a larger scale.''
Army Secretary Thomas White said late last month that the Pentagon (news - web sites)'s review of Posse Comitatus would not likely lead to recommendations that Congress overhaul the act.
``But we are looking at the details of the law to see if revisions are appropriate in the way it's executed or the exceptions that can be taken,'' White said.
Exceptions over the years have seen armed federal troops used for drug interdiction and patrol of the U.S.-Mexico border to enforce immigration laws with mixed results.
In 1997, a Marine corporal on a drug surveillance patrol shot and killed an 18-year-old goat herder in the Texas desert about 200 miles southeast of El Paso. A Marine inquiry determined its personnel were not adequately trained for the mission. Soon afterward, such patrols ended.
Michael Spak, a former Army JAG colonel now teaching at Chicago-Kent College of Law, says the exceptions made in the name of national security in recent decades have left Posse Comitatus a hollow shell. He says the law should be scrapped entirely.
Any amendment to loosen Posse Comitatus would be strictly pro forma, he says, because as it's now construed, the statute has enough wiggle room for the government to use the military for domestic action as it sees fit.
``It's good for the law to tell the truth and for everybody to follow the law,'' he said. ``But is it necessary? No.''