Yet there has been no showing that the order is necessary to advance justice or preserve national security. These rights seek to ensure that the government gets it right, punishing the guilty and permitting the innocent to be cleared. Only two thirds of the military officers on the tribunal's jury need find a defendant guilty, and the order provides for no meaningful appeal, even in cases involving the death penalty. But, at the Pentagon's discretion, trials can be conducted in secret, and evidence can be introduced without the defendant being able to confront it. The rules and regulations that govern the tribunals are still being formulated. The order purports to prevent review by any civilian court - including the Supreme Court of the United States - to ensure that even those rights ostensibly granted in the military proceeding are not violated. The basic, fundamental rights guaranteed in United States courts and in ordinary courts-martial will not necessarily be afforded the defendants. Finally while the order applies in terms only to non-citizens, the precedents on which the President relies make no such distinction, permitting the order to be extended to cover United States citizens at the stroke of a pen. It makes no difference whether the individual is a visitor or a long-term legal resident. It makes no difference whether those charged are captured abroad on the field of battle or at home by federal or state police. It permits the United States criminal justice system to be swept aside merely on the President's finding that he has "reason to believe" that a non-citizen may be involved in terrorism. The breadth of the President's order raises serious constitutional concerns. It circumvents the basic statutory requirement - at the heart of the compromise on detention in the USA Patriot Act 1 - that non-citizens suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees will have full access to the federal courts. It was issued without any authorization by the Congress to establish such tribunals and without a formal declaration of war. The order exceeds the President's constitutional authority. Such military commissions would not follow the same process as courts-martial under the Uniform Code of Military Justice, and would afford few, if any, of the protections available in the ordinary military justice system. On November 13, 2001, President Bush issued a "Military Order" providing for potentially indefinite detention of any non-citizen accused of terrorism, and permitting trial of such defendants in a military commission with a provision purporting to preclude all judicial review. Re: President Bush's Order Establishing Military Trials in Terrorism Cases
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