5120 Carney Road N

5120 Carney Road N.W., Calgary, AB, T2L 1G2

Phone: 403-282-8260 FAX: 403-289-4272

November 22, 2001

The Right Honourable Jean Chrétien

Prime Minister

House of Commons

Ottawa, Ontario

K1A 0A6

Dear Mr. Chrétien ,

RE: URGENT: US Military Order permits detention of Canadians

Lawyers for Social Responsibility asks that you protest the extraterritorial assumption of jurisdiction by the United States over Canada and Canadians under its Military Order: Detention Treatment and Trial of Certain Non‑Citizens in the War against Terrorism. That Order applies to "any individual not a United States citizen" with respect to whom the President of the United States makes certain determinations [section 2(a)]. Once a person is subject to such a determination, the person may be detained by the US Secretary of Defense at any location within or outside the US designated by the US Secretary of Defense [section 3(a)]. US military tribunals have exclusive jurisdiction with respect to offenses by any individual subject to the Order [section 7(b)(1)]. The individual is denied any remedy sought in any court of any foreign nation or any international tribunal

[sections 7(b)(2) (ii) and (iii)].

Accordingly, the US president could determine that the Order applies to a Canadian citizen on Canadian soil. The US Secretary of Defense could then order the detention of the person in Canada and the prosecution of that person by a US military court. The detention of that person in Canada would not be subject to review in Canadian courts. The person could not be prosecuted under the Canadian criminal law.

The Government of Canada should make clear to the United States that it will not accept the detention by the US authorities of Canadian citizens in Canada. The Government should further assert that we consider any detention in Canada to be subject to review by Canadian courts and that we do not consider as binding law in Canada an American law ousting jurisdiction of the Canadian courts. Canada should emphasize that it reserves the right to try any person in Canada under Canadian criminal law.

Canada further reserves the right to bring the United States before the International Court of Justice should the United States persist in its assertion of extraterritorial jurisdiction.

There have been regrettably, in the past, instances of kidnapping of American accused on Canadian soil for the purpose of bringing the accused before the American courts. The Government of Canada has protested these kidnappings. The recent Military Order appears to threaten and legitimize such kidnappings which may occur in the future. The Government of Canada should protest, before any kidnappings occur, an Order which would legitimize American kidnappings on Canadian soil.

The Order, in our view, sets up a legal procedure that violates international standards of fairness and due process. It would be objectionable even if it were to apply only to persons on American soil.

However, a fair legal procedure would not solve the problem of extraterritoriality raised by the Order. The Order should not, under any circumstances, apply to persons on Canadian soil.

Sincerely yours,

Beverley Delong

President

How should we bring terrorists to justice?

By Mark L. Wolf, 11/17/2001

PRESIDENT Bush has repeatedly stated that Osama bin Laden and others allegedly responsible for the attacks on Sept. 11, 2001 will be brought to justice. We should be thinking carefully about what that should mean for terrorists who are not killed in combat.

Bringing criminals to justice in our country has historically involved providing fair trials and punishing only people who are proven guilty beyond a reasonable doubt. We will, however, confront a dilemma if bin Laden or, as is more likely, other members of his alleged criminal enterprise are captured. We will have to decide whether they should be tried in some form of judicial proceeding or instead be executed, or otherwise punished, as a result of a political or military decision.

These competing models came into sharp focus this week when President Bush signed an executive order creating the option of proceeding against suspected terrorists who are not US citizens in special military tribunals.

Typically, trials serve several purposes. Sometimes there is a question of whether a crime has actually occurred. Almost always there is the issue of whether the accused committed the crime. If guilt is proven, it must be decided what punishment should be imposed to protect the community from the defendant, to deter others, and to satisfy society's need for retribution. In conventional cases, trials in the United States address these issues admirably.

However, the Sept. 11 attacks will not generate conventional cases and trials of captured suspects would present formidable problems. Public proceedings, in which defendants can challenge the evidence against them, are features of a fair trial. However, even with reasonable accommodations, trials of alleged international terrorists involve a risk of disclosing the informants and technology used to obtain vital evidence. Such disclosures would threaten our government's ability to acquire additional information that could be important to thwarting future terrorist attacks.

A fair trial also provides the accused an opportunity to testify and present other evidence. Therefore, defendants have a forum ‑ in this case a world stage ‑ for publicizing their views, no matter how painful or pernicious. Most fundamentally, a fair trial requires proof of personal guilt based on compelling evidence rather than on mere suspicion. Any true trial involves the risk that the accused will not be proven guilty and punished. If the verdict is preordained by political considerations, we should not call the process leading to punishment a trial. To do so would only injure international confidence in the integrity of our commitment to the rule of law. A trial of bin Laden or any of his associates would be especially difficult and risky. It should be recognized, however, that there are also risks if suspected terrorists are not given fair trials and benefits if they are.

A political or military decision to execute or otherwise seriously punish suspects will inevitably enhance the myth of their martyrdom and exacerbate the attitudes that have bred Islamic terrorists. The prospect of trials, however, will provide a powerful incentive for prosecutors to develop convincing evidence of how crimes against humanity were planned and committed. If criminal responsibility is proven in proceedings that are perceived to be fair, any reasonable doubt should be removed regarding the identity of the perpetrators and the propriety of serious punishment. Thus, fair trials would have the best chance of persuading Muslims that the United States has been acting justifiably as a victim of unpardonable violence, rather than as an enemy of Islam. They also have the potential to create a credible historical record, which Holocaust deniers regularly remind us can be very important to future generations.

Fair trials would also be a reaffirmation of our belief in the principle of equal justice under law ‑ an ideal that has been fundamental to our nation and to its historic standing as an inspiring example to oppressed people throughout the world.

There is no easy answer to the question of what it should mean to bring captured suspects to justice. Military tribunals may be one option for some suspects. Fair trials could, with difficulty, be provided in United States courts and are certainly another option.

However, if trials are to be conducted, a special international tribunal, like that established with the support of the United States for the former Yugoslavia and Rwanda, would have a better chance of achieving worldwide confidence in the legitimacy of its proceedings.

To promote the reality, and maximize the perception, that trials are fair, that process could include Islamic prosecutors, defense lawyers, and judges. This approach would, however, require that the United States and its closest allies share power and control, and endure genuine uncertainty as to the result of any prosecution.

In his opening statement at the Nuremberg trials of alleged Nazi war criminals in 1945, Justice Robert Jackson, the American chief prosecutor, said that the decision of the victorious nations to ''stay the hand of vengeance and voluntarily submit to the judgment of the law is one of the most significant tributes that power has ever paid to reason.''

Today, our nation's faith in reason is embattled. The wounds inflicted on Sept. 11 remain raw and are being reopened daily. We are, however, determined to succeed militarily. As our military effort progresses, we will be called upon to decide again whether to declare our faith in reason and the rule of law. Our decision will be one measure of how much we lost on Sept. 11.

Mark L. Wolf is a US district judge in Massachusetts.

This story ran on page A15 of the Boston Globe on 11/17/2001.