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American Morning

Calm Prevails in Kabul; Legal Analysis of Bush's Order for Military Tribunal

Aired November 14, 2001 - 09:07   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: Thanks Miles. More on the war in Afghanistan now. The Northern Alliance is moving to consolidate its control of the capital, Kabul, and the deposed president of Afghanistan is expected to visit that city to declare it free of the Taliban. Matthew Chance in the Taliban-free zone with the latest developments. Matthew?

MATTHEW CHANCE, CNN CORRESPONDENT: That's right. The latest military developments from across Afghanistan, a lot of military activity around the cities of Kandahar in the southwest of the country, and in Jalalabad to est -- to the east, rather, of the Afghan capital, of course, from where I'm speaking to you right now.

Northern Alliance officials being very tight-lipped, though, about exactly what is under way although we are receiving reports trickling down to us that the there is fierce fighting, both in the streets of Jalalabad to east and in that main stronghold of the Taliban, to the southwest of here, Kandahar. Obviously, can't get confirmation from you -- from them, seeing, though, now about exactly what's happening we will bring it to you as soon as we have it.

Though, meantime, let's come back to Kabul and the scene here couldn't contrast more with the reports we are getting out of those other two places. A lot of calm, calm prevailing, across the Afghan capital. Forces of the opposition, Northern Alliance moving to impose stability here. Placing troops and guards outside key civil installations and at road junctions, so really imposing their security here. We've spending most of today talking to residents of Kabul. They've been expressing their optimism, in fact, about the fact that the Northern Alliance forces are here, saying this could be the time that peace finally returns to their devastated city.

A lot of concern, also though because of the divided history of the Northern Alliance city could be plunged back into the kind of ethnic fighting that devastated it before the Taliban took over. Paula.

ZAHN: Matthew Chance, thanks so much for that update. Moving on to news out of Washington, the president has made an historic decision affecting due process. He is supporting an order allowing military trials for non-Americans suspected of terrorism. The big question is whether the Bush administration is going too far if he actually exercises this option, CNN Legal Analyst Roger Cossack joins us now from Washington to talk about it. How are you this morning, Roger?

ROGER COSSACK, CNN LEGAL ANALYST: Good, Paula. Well this is a strange and unusual event for the president to put into play his own executive order like this, in which he is allowing the option for suspected terrorists to be tried by, as you pointed out, a military tribunal, which is unlike any of the traditional notions of court, and jurisprudence and due process that we are familiar with in this country.

ZAHN: So, Roger, how would it work if the president actually uses this option?

COSSACK: Well, what would happen is a military tribunal would be convened, and, that -- the actual form of that is yet to be decided. Secretary of Defense Rumsfeld would be the one that would decide who would sit as the judges.

Usually, in a traditional military trial they are officers, as well as enlisted men, that's a man that sits a traditional military proceeding, but this could be unlike anything even of that. What really the advantages are for the government in this situation is that, one, it limits -- it limits the amount of evidence that the defendant would be allowed to see, as opposed to a regular trial. Discovery is part of due process, as you point out, that would be severely limited.

What's the benefit to America? It may not in many -- it may not compromise our security and where we receive our evidence. That's one thing. There would be a tremendous amount quicker, these kinds of trials.

But the downside is just what I have said. We are not going to be giving constitutional rights, in traditional way we think of it. We are not going to be having open and due process at the way we think it, and perhaps one thing that I particularly find most troubling is, you know, there are three branches of government, Paula. Executive, judicial, and legislative. This is a trial that would be put in place by the executive, because it is an executive order, and would be handled by, in a sense, executive department. There would be no independent judiciary review of what goes on here.

That is a hallmark of our American judicial system. I understand these are dramatic times, this is a troubling order.

ZAHN: So, we've heard your concerns, and you've heard the civil rights groups out there saying this is simply unconstitutional. How likely is it that any legal challenge will stop this thing from ever happening?

COSSACK: Well, I'm not so sure it's unconstitutional. During World War II there were some saboteurs who were caught in Florida and in New York with explosives, and apparently their intent was to blow up buildings et cetera during the war. President Roosevelt ordered a military trial. The United States Supreme Court said that this was a act of war, and that a military -- military trial was appropriate. They did have the military trial. I think there were 14 of them. Eight of them were shot and six of them went to prison. The interesting part about this situation is that we keep talking about a war, but as you know, World War II was a declared war that Congress declared.

In this war, there is no act of war, I mean there is no declaration of war. And yet we would be treating these people, under President Bush's suggestion, as if we were in a declared war. Whether or not that makes a difference, whether or not the Supreme Court would view it differently, you know, time will tell.

ZAHN: We will be watching. Roger Cossack, thanks for coming in early this morning. Appreciate it.

COSSACK: Thank you.

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