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.

The issue of "lack of a declared war" is a red herring and is historiclly incorrec. The precident most often cited is the declaration of war against the Barbary Pirates also seems to be a fallicy as pointed out in the bolded portions of the following document

Declaration of War

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ''to make war.''1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ''declare war.''1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421

An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .''1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.1425

Sixty years later, the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when Congress was not in session.1426 Congress had subsequently ratified Lincoln's action,1427 so that it was unnecessary for the Court to consider the constitutional basis of the President's action in the absence of congressional authorization, but the Court nonetheless approved, five-to-four, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact. ''The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.''1428 The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.1429

The view of the majority was proclaimed by a unanimous Court a few years later when it became necessary to ascertain the exact dates on which the war began and ended. The Court, the Chief Justice said, must ''refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second.''1430

These cases settled the issue whether a state of war could exist without formal declaration by Congress. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnamese War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.1431 The Supreme Court studiously refused to consider the issue in any of the forms in which it was presented,1432 and the lower courts gen erally refused, on ''political question'' grounds, to adjudicate the matter.1433 In the absence of judicial elucidation, the Congress and the President have been required to accommodate themselves in the controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant.1434

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