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Letters to the 107th Congress

February 19, 2002

The Honorable Patrick J. Leahy
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Mr. Chairman:

On behalf of the American Bar Association, I write to commend you on your introduction of the Military Tribunal Authorization Act of 2002, S. 1941, legislation that authorizes the establishment of military tribunals to adjudicate offenses arising from the September 11 attacks and which prescribes minimum procedural requirements for these tribunals.

The ABA House of Delegates recently adopted the attached resolution concerning the President's Military Order creating military tribunals. The resolution takes no position as to what extent the President as Commander in Chief has constitutional power to create military tribunals. In essence, the resolution recommends that the President and Congress, pursuant to its explicit Article I constitutional powers, should ensure that the Military Order and any implementing regulations respect our core American values of due process and fundamental fairness. Ensuring fair and just tribunals will minimize the possibility that any convictions obtained by a military commission will survive constitutional challenge on due process grounds. The United States also has a strong interest in creating tribunals that other nations regard as independent and unbiased in order to better protect Americans living and traveling overseas who could find themselves subject to similar tribunals impaneled by foreign governments.

The Military Tribunal Authorization Act's procedural requirements generally track many of the recommendations contained within the ABA's recently enacted policy statement. These policies are substantially grounded in the rules and procedures of the Uniform Code of Military Justice and the requirements of the International Covenant on Civil and Political Rights, to which the U.S. is a party. These basic standards of due process include the presumption of innocence, proof beyond a reasonable doubt, open and public trials (except in limited circumstances), confrontation and examination of witnesses, the right to counsel and the right to certiorari review by the U.S. Supreme Court.

As the Supreme Court emphasized in ex parte Milligan, the leading precedent on issue relating to military tribunals, "[t]he Constitution of the United States is a law for rulers and people, equal in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Although we believe that additional safeguards and procedural changes should be considered, the Military Tribunal Authorization Act is an important step towards affording the accused full and fair trials while protecting our national security interests.

We therefore respectfully urge the Congress to hold hearings on this matter to discuss appropriate rules and procedures for military tribunals. Hearings will reconfirm the stature of the United States as the leader of the free world and will help ensure fair and just tribunals for trials conducted by our own country.

The American Bar Association looks forward to working with you and your colleagues on this important issue, and welcomes the opportunity to testify at such time as Congressional hearings might be scheduled.


Robert E. Hirshon
President, American Bar Association

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