Attorney General John Ashcroft on Military Tribunals for Terrorists
Department of Justice Press Conference, November 14, 2001Q General Ashcroft, do you think it's preferable for Osama bin Laden and members of al Qaeda to be tried in a military tribunal? And wouldn't the American people have more confidence if they were tried in the U.S. legal system?
ATTY GEN. ASHCROFT: Well, let me just say that the United States is in the state of war, and I think it's important to give the president of the United States the maximum flexibility consistent with his constitutional authority.
A military commission that was mentioned in the order of the president would provide a jurisdiction for trying individuals who had committed or perpetrated war crimes, and these would be war crimes perpetrated by foreign nationals. These are not ordinary criminal events, and certainly not individuals who are American citizens.
In the course of the war, we may capture terrorists in places like Afghanistan, who I don't think we should have to bring back to the United States in order to bring them to justice.
Let me just indicate that there is a very substantial history in this arena. Military commissions have been used throughout history, since the Revolution and the War of 1812 and the Mexican-American War, the Civil War, and World War I and World War II. And World War II was the last war, I think, where we actually had people try to come ashore to do injury and harm in the United States.
The Supreme Court has upheld the constitutionality of the military commissions, particularly in the Quirin, regarding the Second World War, where President Roosevelt established the commission to try specific individuals. And in that case, it's substantially different than it is in this case because Roosevelt's order was a secret order, not known to the American people. And the scope of the order even applied to American citizens who were a part of any such activity, which happened to have been the case at the time.
The order issued by President Bush neither seeks to address citizens in the order, nor is it a secret order. It's pretty clear to me that the president is very well within the limits that have been sanctioned by the United States Supreme Court for the development of these kinds of options for treating war criminals -- not part of the criminal justice system of the United States, but war criminals. And foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice.
Q Attorney General, you seem to be indicating that if Osama bin Laden is captured, he will, indeed, be tried via court-martial overseas. Is that the implication?
ATTY GEN. ASHCROFT: I'm not meaning to imply anything in particular. I think the order provides options for the president of the United States, so that he has the flexibility to act in the national interest, to deal with any circumstance that might arise.
Yes, sir.
Q This would seem to be, though, a departure from the past practice, where terrorists have been brought, in most cases, to New York for prosecution by the Southern District of New York, no matter where the incident was or where they were found. So what you're saying now is that, in the case of al Qaeda, from here on they may or may not be brought back to New York, that they may be prosecuted overseas?
ATTY GEN. ASHCROFT: I think it's important to understand that we are at war now. And it's pretty clear that the acts of the terrorists on the United States soil against innocent individuals in the United States -- acts which have subsequently been endorsed by the terrorists in their statements about how they say the United States' innocent people deserve this kind of treatment -- these are acts of war.
That distinguishes this setting from a variety of other settings. I'm not -- you know, there are similarities to some other settings. For instance, when people came ashore from Germany who came in from submarines in the Second World War, and the then-president of the United States said, "Those who invade our country, come here with the purpose of destroying America should be tried by a military commission in a time of war." I think there are similarities there.
It's important to note that the president has undertaken to issue this order as a way of providing himself with the flexibility of decision-making to deal with circumstances appropriately in a time of war. And I personally believe it's wise of the president to do so.
Q (Inaudible) -- is a war crime?
ATTY GEN. ASHCROFT: I believe those who flew airplanes into the World Trade Center, who commandeered airplanes that either crashed in Pennsylvania or into the Pentagon of the United States and those who assisted them in doing so committed the kinds of criminal activity that would qualify as war crimes.
Q And those overseas who might be charged with complicity?
ATTY GEN. ASHCROFT: I believe those people who were involved in those acts committed war crimes against the United States and against other nations. Let us not forget that what we are doing in this entire effort and the leadership of the president and the coalition of those supporting him reflects an understanding that people from 86 nations, innocent individuals from 86 nations were destroyed in these outrageous acts of terror. And they're acts of war against civilization in my judgment, as well as against the United States.
Yes, sir.
Q Sir, if there are people found in the investigation in this country that you're able to link to the September 11th attack, you know, for instance, among those already in custody, would you support seeing them tried in a military setting?
ATTY GEN. ASHCROFT: The president of the United States has created this order with a view toward developing the flexibility of providing him with the range of options necessary to protect our national interests. And the order speaks for itself.
Yes.
Q How much of it was driven by the fear that any trial in the U.S. could lead to further terrorist attacks?
ATTY GEN. ASHCROFT: My view is that this order is a very responsible exercise of the president's judgment to make sure that the options available to him to represent the national interests of the United States are as broad as they can be in order to make sure that we're successful in the pursuit of the war against terrorism. And that's the purpose of this.
I don't believe the president is focusing on a specific circumstance. He wants to say as we approach the maturation of this effort, we want to have a full range of options available to defend the interests of the American people.
Q Do you think the trials should be in public?
ATTY GEN. ASHCROFT: You know, I'm not going to comment on specific practices and procedures. When you're at war, there are times when you share information with the enemy, times when you don't share information with the enemy, and there are good reasons, depending on circumstances, to either do that or not do it.