The Bush administration issued an executive order on November 13 allowing the use of military tribunals to judge those accused of involvement in the September 11 terrorist attacks. Also in response to those attacks, Attorney General John Ashcroft authorized the FBI to wiretap conversations between detainees and their attorneys and ordered that more than 5,000 individuals, mostly of Middle Eastern origin, to undergo questioning by law enforcement officials.

Speaking at a November 28 gathering at the Open Society Institute, Anderson said the United States has three options in prosecuting suspected terrorists connected with the September 11 attacks: they could be tried in an international court; in US criminal courts; or in a US military tribunal.

Trying prisoners in an international court is impractical, largely because most countries are unwilling to host such a trial, Anderson said. Some legal observers have suggested the International Criminal Court (ICC) could be a possible venue for terrorist trials. However, the ICC does not yet function, and the possibility of its being allowed to assume cases retroactively is "near zero," Anderson said.

Relying on US criminal courts to try suspected terrorists would raise troubling questions about jurisdiction. While it would be permissible to use US courts to try those either arrested in the United States, or accused of committing a criminal act on American territory, the courts would not have jurisdiction, under international law, over suspects captured in Afghanistan.

That leaves military tribunals as the last option. The problem is, Anderson said, current plans for the use of military tribunals by the Bush Administration may not conform with international law. Those plans also threaten to infringe upon US constitutional protections, and have troubling implications for American democracy, he said.

Bush's approach has been the "wholesale creation of a very different model of fighting terrorism," Anderson said. This has consisted of fighting a war abroad, while establishing "something that looks frighteningly like a national security state" at home.

Anderson said the US administration has confused a metaphorical "war on terrorism" with an actual one. This is the justification for the creation of something very similar to a "state of emergency" at home involving expanded surveillance powers for domestic law enforcement agencies. The metaphorical "war against terrorism" has no specific endpoint, and could, in theory, be prolonged indefinitely. "If a state of emergency lasts forever in a democracy, then you no longer have a democracy," he said.

Anderson said that in order for military tribunals to try individuals captured in Afghanistan for involvement in the September 11 terrorist attacks, a preliminary procedural hearing would first have to determine that the suspects were "unprivileged combatants" - prisoners who are not guaranteed the same treatment as ordinary POWs. Those deemed ordinary POWs should not fall under the jurisdiction of a US military tribunal. Current plans for the use of US military tribunals would not include preliminary hearings to determine the prisoner's status.

Anderson suggested that it is Washington's "desperate wish" that Taliban and al Qaeda soldiers refuse to surrender, and end up being killed in action in Afghanistan. The way the anti-terrorism campaign is unfolding, he said, makes surrender difficult, given that the security of prisoners appears tenuous. "You're going to see a lot more of these slaughters," he said, referring to the recent bloodbath at the Qala-I-Jhangi prison fortress near Mazar-i-Sharif, "particularly as Kandahar falls. Everyone will wink and say 'another headache down,'" he said.