In Letter, 300 Law Professors Oppose Tribunals Plan by Katharine Q. Seelye
WASHINGTON, Dec. 7 - More than 300 law professors from around the country are protesting President Bush's order to establish military tribunals for foreign terrorist suspects. In a letter that originated at Yale Law School, the lawyers assert that such tribunals are "legally deficient, unnecessary and unwise."
The lawyers, who represent varying institutions and political philosophies, say the tribunals as outlined so far would violate the separation of powers, would not comport with constitutional standards of due process and would allow the president to violate binding treaties.
The tribunals, they say, assume that procedures used in civil courts or military courts-martial would be inadequate to handle such cases. And they say that using them would undercut the ability of the United States to protest when such tribunals are used against American citizens in other countries.
The letter was sent to Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee and who questioned Attorney General John Ashcroft at length on Thursday about the tribunals.
Mr. Ashcroft defended them, saying they would be used only for war crimes. Referring to the Sept. 11 terrorist attacks, Mr. Ashcroft said, "When we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV?"
For his part, Senator Leahy said that some of his concerns about President Bush's initial military order had been allayed by information that had emerged as a result of hearings on Capitol Hill.
Nonetheless, Judith Resnik, who teaches procedure and federal courts at Yale and was instrumental in drafting the letter, said there should be an open discussion of why traditional courts were not appropriate for trying terrorist suspects.
"What I would hope is that an open collaborative process between the executive and the Congress would develop an appropriate response and would explore the pros and cons of using the current available avenues," she said.
At the same time, John W. Dean III, the former Watergate figure in the Nixon White House and an early proponent of the tribunals, said he believed that much of the criticism could be dispelled if the White House would seek Congressional authority for the tribunals.
As a matter of law, he said, it has never been resolved whether the president needs Congressional authority for such tribunals, but both Abraham Lincoln and Franklin D. Roosevelt had it when they used these tribunals.
"The president would be on a stronger footing if they explained what they are doing, and it would eliminate 300 law professors, who are assuming the worst case, from getting together," Mr. Dean said. He added that statements by Alberto R. Gonzales, the White House counsel, made the tribunals seem less worrisome than Mr. Bush's military order, but he faulted the White House for not better explaining the details.
"What mystifies me is how poorly the administration has presented this concept," he said. "For as media-conscious presidency as we have, they have done a lousy job of telling us what they're doing."
Asked if Congressional authority would allay her concerns, Ms. Resnik said, "My concerns are not resolved by an after-the-fact Congressional imprimatur."
Copyright 2001 The New York Times Company