A Coup against the American Constitution

Conducted Wednesday, November 14, 2001 by Dennis Bernstein, host of Flashpoints on KPFA Radio 94.1 FM – Berkeley, California

Dennis Bernstein: You’re listening to Flashpoints, on KPFA. This is Dennis Bernstein.

George W. Bush declared an extraordinary emergency yesterday that empowers him to order military trials for suspected international terrorists and their collaborators, bypassing the American criminal justice system, its rules of evidence and its constitutional guarantees. The presidential directive, signed by Bush as commander-in-chief, applies to non-U.S. citizens arrested in the United States or abroad.

Joining us to talk about this extraordinary measure is Professor Francis Boyle. He is a professor of international law at the University of Illinois College of Law, in Champaign. I want to thank you for joining us, again, on Flashpoints.

Francis Boyle: Thank you, Dennis. I’m always happy to be on your show and your station, and I hope things go well in your meetings with Pacifica. It’s a great station and it really needs to be kept on the air and going the way it’s going.

Now, secret courts, military tribunals — give us, first of all, your sense of what the implication is of this, maybe describe what you understand can happen.

Boyle: First, this executive order must be considered within the context of the massive assault that we have seen inflicted on the United States Constitution by the Bush administration and its Federalist Society lawyers, such as Ashcroft, Gonzales and their staff. We’ve discussed the Federalist Society on your station before, I think.

Since September 11th, we have seen one blow against the Constitution after another, after another. Recently, we’ve had Ashcroft saying that he had, unilaterally, instituted monitoring of attorney-client communications without even informing anyone — he just went ahead and did it, despite the Fourth Amendment ban on unreasonable searches and seizures without warrant and the Sixth Amendment right to representation by counsel.

I won’t go through all the [recently promulgated] measures here, but this is one of the more outrageous and dangerous. As you correctly point out, it applies both to alleged terrorist suspects here in the United States, who are not U.S. citizens and, also, abroad. We have to consider that separately. As for those here in the United States, clearly aliens here are entitled to the protections of the Due Process clause of the Fifth Amendment to the United States Constitution, as well as to the Article III (Section 2, Clause 3) basic constitutional rights in criminal cases, including indictment, trial before a Federal District judge or jury, [rights relating to] venue and things of that nature. It would take me an entire law review article to go through all the problems with this executive order.

Moreover, there is the International Covenant on Civil and Political Rights, to which the United States Government is a party. It’s a treaty and it, again, affords basic due process protections to everyone here in the United States, irrespective of their citizenship.

As for the applicability to alleged al Qaeda members, or even former al Qaeda members, over in Afghanistan, [there is] an even more serious problem there. The third and fourth Geneva Conventions, of 1949, clearly apply to our conflict now with Afghanistan. These alleged al Qaeda members would be protected either by the third Geneva Convention (if they are fighters incorporated into the army there in Afghanistan), or by the fourth Geneva Convention (if they are deemed to be civilians). Both conventions have very extensive procedural protections on trials that must be adhered to. This is not to say that a trial cannot happen. It can happen, but there are very extensive rules and protections. Basic requirements of due process of law, set forth in both of these treaties, must be applied, under these circumstances. [Failures] to apply these treaties would constitute war crimes.

Second is the question of reprisals. This executive order is extremely dangerous, because what it is basically saying to the Taliban government and to al Qaeda is, “We are not going to give you the protections of either the third or fourth Geneva Conventions’ guarantees on trials.” What that means is that they could engage in reprisals against captured members of the United States Armed Forces. As you know, we have soldiers on the ground, now — Special Forces — in Afghanistan and we also have pilots flying over Afghanistan. Any of them could be captured by the Taliban government, by al Qaeda.

If a U.S. military [person] were to be captured, clearly, he or she would be entitled to all the benefits and protections of the third Geneva Convention, on prisoners of war. But the problem now is that President Bush has basically said, openly, publicly and officially, that we are not going to give prisoner-of-war benefits, or fourth Geneva Convention civilian benefits, to al Qaeda members, to former al Qaeda members, or to those who have sheltered, harbored or assisted them. That opens us up for reprisals. It opens up our own armed forces to be denied prisoner-of-war treatment. So, what we’re doing here is exposing them to a similar type of treatment, which would be a summary trial, in secret, subject to the death penalty.

According to the presidential directive, the president himself will decide which defendants will be tried by military tribunals and Defense Secretary Donald Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for conviction. This sounds almost like sort of a quiet coup.

Boyle: Clearly. What we’ve seen, since September 11th, if you add up everything that Ashcroft, Bush, Gonzales and their coterie of Federalist Society lawyers have done here, is a coup d’etat against the United States Constitution. There’s no question about it.

When you add in the Ashcroft police state bill that was passed by Congress (and several members of Congress admitted, “We never even read this thing when we voted for it.”) — that’s really what we’re seeing now, Dennis, a constitutional coup d’etat. There’s no other word for it.

Bernstein: What are the implications when the president and the secretary of defense decide who will be the defendants and what the necessary level of truth will be? I mean, it’s hard to imagine how that would work.

Boyle: This is really like the old Star Chamber proceedings, in the British Empire, where someone accused of treason would be called before a chamber in quiet, in secrecy. (It was called the Star Chamber because there were stars on the [ceiling]). There would be a summary hearing and the person would be sentenced to death. That was that.

The important point to keep in mind is that the president and secretary of defense are bound by the third and fourth Geneva Conventions for anyone over in Afghanistan or Pakistan. They have no discretion there.

As for here, in the United States, they are bound by the Constitution and the Bill of Rights, and they are bound by the International Covenant on Civil and Political Rights. There is no exception that the president can unilaterally announce ipse dixit. That’s exactly what this executive order — you can read about it in today’s New York Times — is attempting to do.

Bernstein: It is, obviously, very concerning to Arab-Americans, to people on visas, with green cards. We now have a thousand people in custody. Ashcroft is talking about five thousand more that they want to take into custody. These are all people that could be tried secretly and convicted without [any] evidence that we would know anything about.

Boyle: That is correct. It’s like we’re becoming a banana republic here in the United States, with “disappeared” people, which was the phenomenon that we all saw down in Latin American dictatorships in the 1970s and 1980s, with the support, by the way, of the United States Government. The latest figure I’ve read is upwards of eleven hundred aliens, Arabs, Muslims, who have just disappeared somewhere. We don’t know where they are or the conditions under which they are being held. We have no idea whether they have access to attorneys. We do know one of them died, under highly suspicious circumstances, while in custody. There have been reports that he was tortured to death.

I should point out that the phenomenon of disappearance is considered a crime against humanity [by] the International Criminal Court. This is very dangerous.

The critical question is: When will the FBI, the CIA and the National Security Agency start to turn these powers, that they have under the Ashcroft police state bill, against American citizens? Clearly, that will be the next step.

Bernstein: Well. We have been speaking with Professor Francis Boyle. He is a professor of international law at the University of Illinois College of Law, in Champaign, Illinois. We thank you.

Remembering the Constitution

by Jacob G. Hornberger, November 2001

Constitution Day — September 17 — came and passed without fanfare. That is the day that commemorates the signing of one of the two most important documents in our nation's history. (The other one, of course, is the Declaration of Independence, which we celebrate on the Fourth of July.) Even and especially in the midst of tragedy and crisis, it is critically important that we remind ourselves of the meaning and purposes of our Constitution.

When our American ancestors consented to calling into existence the federal government in 1787, the means by which they did so was the document known as the Constitution. Contrary to popular opinion, the Constitution was not — and is not — a grant of rights to the citizenry. Instead, the Constitution is a "barbed-wire entanglement" designed to interfere with, restrict, and impede government officials in the exercise of political power.

For example, the Constitution does not grant anyone freedom of speech, freedom of the press, the right to assemble, or the right to bear arms. In fact, one searches in vain for any language in our Constitution that grants any rights to the people whatsoever. (The Constitution can be found in any World Alamanac and can be accessed on the Internet at the website of the National Archives and Records Administration, where the original Constitution and Declaration of Independence are housed: www.nara.gov.)

Instead, recognizing the truth expressed in 1776 in the Declaration of Independence that people's rights preexist government, the Constitution is actually a limited grant of enumerated powers to government officials and a series of restrictions that prohibit government officials from interfering with the exercise of rights that preexist government.

To put this more clearly, read the First Amendment carefully. You will notice that it does not give people the right to express their views. It instead prohibits (the democratically elected) Congress from enacting any law that interferes with a person's (preexisting) right to express his views.

That distinction was — and is — critical, and it was well understood by our Founders and our ancestors. They recognized that our rights don't come from the Constitution; instead the Constitution prohibits government officials from interfering with fundamental rights that preexist government.

The institution of a government whose powers were few and limited was the most radical political experiment in history. In fact, that was one of the things about the United States that amazed people all over the world: the thought that government officials should not have the general, unlimited power to do whatever they thought best for the country was a shocking one to the rest of the world.

Why didn't our ancestors institute a government with general, unlimited powers to "do the right thing," especially in the midst of a crisis? Because they knew that governments throughout history had used unlimited political power to trample and even destroy the rights of the citizenry, especially during crises and usually with the best of intentions.

Consider the words of the U.S. Supreme Court in Ex Parte Milligan (1866), a case that arose during our nation's Civil War: "Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism...."

It is perhaps understandable that Americans would forget to celebrate Constitution Day given the recent tragedy and the current national crisis. But if we forget our Constitution — its meaning and its purposes — we do so at our peril.

Mr. Hornberger is founder and president of The Future of Freedom Foundation in Fairfax, Va.

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