In November 2001, President Bush issued a military order establishing a system of military tribunals to try foreign terrorism suspects. Under the initial order, any non-citizen could be tried in secret before military officers largely on the basis of classified evidence, convicted, and sentenced to death without a unanimous verdict. The tribunals, as originally proposed by the President, lacked many of the fundamental protections of our existing civilian and military justice systems, including the presumption of innocence, guilt beyond a reasonable doubt, and adequate legal representation. The proposal triggered a range of criticism, including a letter from Rabbi Eric Yoffie, President of the Union, and Rabbi David Saperstein, Director of the Religious Action Center.
In May 2002, the Department of Defense issued regulations for implementing the tribunals that included many more due process protections than were in the original order. However, civil liberties advocates are still concerned due to the fact that the President would have the final say in all appeals. No military tribunal is known to have been convened yet, but many foreign terrorism suspects have been held in detention indefinitely in Guantanamo Bay, Cuba without judicial recourse.
“Enemy combatants” is a term used by the Bush Administration to refer to those who are complicit in terrorism or are themselves terrorists, even if they are U.S. citizens. Yaser Hamdi, a Taliban fighter taken prisoner in Afghanistan and later discovered to be American-born, and Jose Padilla, who allegedly plotted a “dirty bomb” attack on the United States, are examples of U.S. citizens who have been detained as enemy combatants. Hamdi and Padilla were not allowed to consult with lawyers for the first two years of their detention, and the U.S. government was for a long time resistant to putting them on trial. Hamdi has since been allowed to renounce his U.S. citizenship and return to Saudi Arabia; Padilla was finally charged in November, 2005 and awaits his trial.