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.

"All of this nonsense of about "rights." How quaint!"

That is probably what the first King George said in the 1770's

I'm sure that is what you will say too until it is your rights that are taken. Naturally this will be done by necessity to "protect us". Then my bet would be that the "rights" won't be quit so quaint.

"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."

A fine piece of writing by Mr. Hornberger. Your attempt at a strawman argument though was duly noted.

These military tribunals do not deny Constitutional protections to citizens of the U.S. Those citizens who collaborated with the terrorists will be tried as they should by a jury trial. Non citizen terrorists will learn of their fate by a military tribunal. Both should have their necks streched like the jackals of Nuremberg. This was an act of war against our country and should be treated that way.

Bump what you said.

tberry, from the post:

That opens us up for reprisals. It opens up our own armed forces to be denied prisoner-of-war treatment.

Talis have already promised to torture our troops, and drag them through the street. I believe they will/would.

The Talibums are getting more than they deserve by getting a fair trial.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article 1, section 9 of the United States Constitution.

These military tribunals are obviously constitutional within your country. Enough said?

One was the Gore Commission report on airline safety and security, the airlines, FAA and the Republican lead congress did not implement it.

Har har. That just like a liberal for ya....blame anybody else for your own actions. The ghostwriter findings of the Gore Commission report were sold to the highest bidder...it this particular case, the airlines. Get outta here and go back to the DU...you'll fit in perfectly. Plenty of erroneous information, and a crew to assure you that you're quite right.

I don't like the usurpations by this DOJ, even in "time of war."

But the Bill of Rights doesn't protect us upfront, it only exists in reality when you go to court. And even then the BOR only protects "We the people of the United States," not Saudi Nationals hiding in Afghanistan (or here).

So I expect OBL to get no relief from Dershowitz or the Constitution, and sadly, I expect the DOJ to overextend and prosecute citizens with their new-found police state zeal.

But I expect (and hope) that such overreaching will backfire against the DOJ in the courts where these protections were really meant to take effect. And the DOJ, by reaching too far, may lose well-meaning prosecutions on "Constitutional Technicalities" like the 4th Amendment. They should be careful in their prosecution. God Bless America.

The latest figure I’ve read is upwards of eleven hundred aliens, Arabs, Muslims, who have just disappeared somewhere.

Perfect! There should be no prisoners taken in Afghanistan, Syria, Lebanon, Egypt, Iraq, Iran, Pakistan, Lybia or here at home...just disappearances of terrorist criminals.

Then we can let the word out through these lefty one-worlder UN loving so-called journalists that all their poor misunderstood pals are missing!

Exactly what Constitutional rights do foreign terrorists who have vowed to destroy America have?

Uh, if we don't have an open trial how do we know they are indeed terrorists? Is that so difficult to understand?

Uh, if we don't have an open trial how do we know they are indeed terrorists?

Thanks for asking, since these slimeballs have not proven themselves worthy of being citizens of the world, let alone citizens of the USA, my answer would be the duck&dunk method.
First, if it looks like a duck, then if it quacks like a duck, call me old fashioned, but I will believe it is a duck.

Trial by dunking stool, if he lives then he must be a terrorist possessed by evil powers, take him out back and shoot him, if he dies he probably wasn’t a terrorist and allah will save him. No harm no foul, BTW this method is only applicable to non-Americans, real citizens have true rights under the law.

There are those who you can trust, and then there are those who you can't. I trust George Bush and I give him credit for the conditions he placed on this order.

Yes, but what happens when a Clinton-esque power-monger (Edwards of NC?) is elected in 2008, and they decide to make REALLY good use of this new power? You may trust the current White House occupant, but the rule he made will last us much longer than his 8 year tenure. (giving him the benefit of the doubt for 2004, of course)

Trial by dunking stool, if he lives then he must be a terrorist possessed by evil powers, take him out back and shoot him, if he dies he probably wasn’t a terrorist and allah will save him.

Osama would be proud of you. You have learned his absolutist teachings very well.

Good going Zviadist! For all the talk about how 'everything changed' after 9-11 there have to be people who keep their heads and say: but certain things ought NOT to change, like the rule of law! I am planning an article about this debate in America as I can gather from the articles posted here. Could you send me a few good pieces or suggestions if you have some? Thanks!

Could you send me a few good pieces or suggestions if you have some? Thanks!

Right on. I'll do a little shopping...

Here's one alternative perspective:

posted here.

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