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Date: 2004-10-25

NYT: How U.S. rewrote its laws on terrorism

In den Wirren nach dem 11.Sept wussten Einige die chaotischen Zustände in Washington gut zu nutzen. Doch zeichnet wirklich nur ein kleiner Beamten- und Bürokratenzirkel rund um Vizepräsident Dick Cheney Hauptverantwortlich für die Notstandsgesetze gegen den beliebig erweiter- und verlängerbaren Krieg gegen den Terror? Basierend auf Kriegsrecht aus dem zweiten Weltkrieg halten selbst US-Militäranwälte diese für problematisch.
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[New York Times 24.10 / International Herald Tribune 25.10]

WASHINGTON In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism.
"We think it guarantees that we'll have the kind of treatment of these individuals that we believe they deserve," Vice President Dick Cheney, who was a driving force behind the policy, told a meeting of the U.S. Chamber of Commerce on Nov. 15, 2001.

But three years later, not a single terrorist has been prosecuted.

Of the roughly 560 men being held at the U.S. naval base at Guantánamo Bay, Cuba, only four have been formally charged. (...) the Pentagon has stepped up efforts to send home hundreds of men whom it once branded as dangerous terrorists.
But extensive interviews with important officials and a review of confidential and classified documents reveal that the legal strategy for dealing with terrorism took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of Sept. 11.
Military lawyers were largely excluded from that process in the days after Sept. 11. They have since waged a long struggle to ensure terrorist prosecutions meet what they say are basic standards of fairness.
Yet some officials said the strategy was also shaped by longstanding political agendas that had relatively little to do with fighting terrorism.

The administration's claim of authority to set up military commissions, as the tribunals are formally known, was guided by a desire to strengthen executive power, current and former officials said.
...the Constitution's Fourth Amendment rights against unreasonable search and seizure (...) noted that in the face of devastating terrorist attacks, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." (...) "we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
It [internal Memo] concluded that the Sept. 11 attacks were "plainly sufficient" to warrant applying the laws of war.

Opening a debate that would later divide the administration, the memo also suggested that the White House could apply international law selectively.

It stated specifically that trying terrorists under the laws of war "does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.
The central legal precedent cited in the memo was a 1942 case in which the Supreme Court upheld President Franklin D. Roosevelt's use of a military commission to try eight Nazi saboteurs who had sneaked into the United States aboard submarines. Since that ruling, revolutions had taken place in both international and military law, with the adoption of the Geneva Conventions in 1949 and the Uniform Code of Military Justice in 1951.
Later, Cheney discussed a draft of the order with Bush over lunch, one former official said. The president signed the three-page order on Nov. 13.
The military could detain and prosecute any foreigner the president or his representative determined to have "engaged in, aided or abetted, or conspired to commit" terrorism. Echoing the Roosevelt order, the Bush document promised "free and fair" tribunals but offered few guarantees: There was no promise of public trials, no right to remain silent, no presumption of innocence. As in 1942, guilt did not necessarily have to be proved beyond a reasonable doubt, and a death sentence could be imposed even with a divided verdict.


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edited by Mac Gyver
published on: 2004-10-25
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