Posted on 11/19/2001 3:49:13 AM PST by tberry
A Coup against the American Constitution
An interview with Professor Francis A. Boyle
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.
Bernstein: Thank you very much.
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.
Bernstein: Let me jump in here, Professor Boyle.
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.
Contact information for Professor Boyle:
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
+1-217-333-7954 (voice)
+1-217-244-1478 (fax)
<>
If Clinton would have done something about the Arabs who were coming over here to kill Americans after the 1993 attack on the WTC, 7000 Americans would still be alive.If Clinton or Reno would have suggested "sneek and peak" search warrants, or some of the other "tools" that Bush and Ashcroft have now, would you have supported it back in 1993?
Or this:
Are You Concerned About New Legislation That Harms Your Rights?
Your forefathers did it, and I'm sure you could if you had to. Apparently the police and firemen of New York would be on your side.
Until then, don't be fooled by liberal Bush haters, and conservative freedom fighters (kind of an odd combo don't you think?), into to thinking that you're democracy can't handle the proper use of the constitution to wage, and win a war against terrorism.
There is absolutely nothing unconstitutional about this executive order. As indicated by Article 1, section 9 of your holy grail.
Couple that with the fact that George Bush is of sound mind and judgment, unlike X-42, and you have a tool to vanquish and destroy the enemies that lay before you. For the sake of your democracy and other democracies throughout this world - DO NOT FALTER NOW.
Funny thing....when we make these statements, they seem to assume that they also don't have to abide by these treaties and conventions...and our personnel, both civilian and military can suffer.
To which I would reply: Please go read the Preamble to the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The "We the People" who ordained and established the Constitution did so for the benefit of "ourselves and our posterity." It says nothing about aliens in the United States, particularly illegal ones (who are breaking U.S. law just by being here illegally). Not to mention that Boyle's one-worlder, "one-size-fits-all" approach to civil liberities completely ignores the fact that the country is at war, and the very people on whom Boyle wants to confer the Constitutional protections of American citizens are the very people who are here to destroy the Constitution and all other things American, especially including American civilians.
Well, Boyle can moan all he wants to; but it is an Executive Order, executed under fully constitutional Executive war powers. He must be very frustrated; but that's just the way it goes.
Speaking for myself, I don't think it's a good idea to extend the protections of the Constitution to any person who is not an American citizen. That may sound harsh; but the fact remains, a person can become an American citizen, and take the oath of citizenship. I believe it is that oath -- a pledge to unhold the Constitution and to come under its laws as a new member of We the People -- that's the very thing which qualifies a foreign national as entitled to full Constitutional protections. Let's not forget: The Constitution was designed to protect American citizens, not the "citizens of just-anywhere." JMHO, FWIW.
Of course, the "hard Left" would have a serious ideological problem with this theory of mine.... best, bb.
For crying out loud.....are you accusing the Founding Fathers of being liberals? That is certainly what you appear to be doing.
A read of Amendment 6 to the Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jurify of the state and district wherein the crime shall have been commited,........."
While I am quite comfortable with everyone at FR essentially being 'against' libs, we should certainly know somehting about that which we are accusing them!
"Necessity is the plea for every infringement of human liberty; it is the argument of tyrants; it is the creed of slaves." -- William Pitt
"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." -- James Madison
Those that don't learn from history are doomed to repeat it.
Bingo!
Judging by the "it can't happen here" mindset of most conservatives in this forum we're definitely going to repeat it.
I'm shocked at how few of our "defenders of the constitution, freedom, and the American way" will admit that freedom is taking major blows of late.
If the government keeps Americans in a state of perpetual war-on-terror then exactly WHEN are these freedoms going to be brought back to life? How long will this thing last? Will there ever be a clearly defined end to this or will the "state of heightened alert" last for decades? How much more liberty will be sacrificed on the alter of "keep me safe, I'm frightened"? Does anyone care to question their leaders anymore?
At what point do these people say enough is enough? They act as though they have liberty to burn.
We are spoiled, apathetic, half-conscious and ripe for the power-mongers' plucking it would seem.
Yeah, it definitely makes me wonder about my children's future.
However, we part with the 'military tribunals'.....I recall that once upon a time the Fedgov established RICO laws--they seemed harsh, but we were assured they would be applied to those 'bad' guys, the Mafia.
Well, that assurance held for a while.....but now anti-baby killer protestors are being rounded up and tried using RICO laws!
I've also read where the 'income tax' was only going to be 3 or 5% when it was enacted, and would only affect the 'wealthy'......today we have a President who believes Government shouldn't take more than 33% of one's earnings!!!
So, the idea that a 'military tribunal' would only be used for foreigners doesn't hold much sway with me....perhaps not under this admin, but consider Pervert II having the ability to declare these tribunals, and then due to some half-assed emergency, and swamping of the regular court system, that all 'drug' cases would be henceforth handled under a military tribunal......well, we all know that 'druggies' are the scum of the earth, so we don't raise too much hell.....get an idea of where it could go?
Regards
So who decides that they were "involved in terrorist activities"? I thought that was what trials were for. The President is going to decide before that individual has an opportunity to present a defense, offer evidence, confront accusers, or cross-examine witnesses.
Too much faith in individuals and too little in rule of law and too little concern over the question of the actual guilt of the accused, IMO.
Only one "huge" correction: the government swallows-up around 50% of the average Joes income when you add up all taxes, fees, surcharges, etc.. I guess it depends on how you define "income tax". My income is taxed over and over.
Clinton and Reno did far more than that, look at what they did to an AMERICAN group in Waco, they burned them up. I hope they do much more watching of foreign agents working in the US, but they need to protect the rights of American citizens while they do it.
I am accusing the libs for nominating lib judges to run our courts, and eventually becoming the majority on The Nine Supremes! Then, using their "living document" method of interpreting the Constitution, they made Swiss Cheese out of the Constitution crafted by our founding fathers.
Right now, in America, there is no "speedy and public trial." Our justice system is a joke, thanks to decades of lib judges nibbling holes in the excellent Constitution of our forefathers.
Hence, this tribunal system will, for the terrorists, restore a speedy trial, though perhaps not to public.
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