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Abandoning the Constitution to Military Tribunals
Village Voice ^ | 11/21/01 | Nat Hentoff

Posted on 11/20/2001 11:10:54 AM PST by dead

Abandoning the Constitution to Military Tribunals

During his terms as governor of Texas, George W. Bush made it clear that he was dangerously ignorant of the Constitution—not only denying due process to the record number of people he executed but also refusing effective counsel to indigent inmates of Texas prisons.

But as president, Bush, terrorized by the terrorists, is abandoning more and more of the fundamental rights and liberties that he—and his unquestioning subordinates—assured us they were fighting to preserve.

On Thursday, November 15, William Safire—The New York Times' constitutional conservative—distilled Bush's new raid on the Constitution:

"Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. . . . We are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts. . . . In an Orwellian twist, Bush's order calls this Soviet-style abomination 'a full and fair trial.' "

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These secret trials will be based, to a large extent, on secret evidence.

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What Bush has done by executive order—bypassing Congress and the constitutional separation of powers—is to establish special military tribunals to try noncitizens suspected of terrorism. Their authority will extend over permanent noncitizen American residents, lawfully living in the United States, as well as foreigners.

The trials will be held here or in other countries—like Pakistan or "liberated" Afghanistan—and on ships at sea. The trials will be in secret. There will be no juries. Panels of military officers will be the judges—with the power to impose the death penalty if two-thirds of these uniformed judges agree. There will be no appeals to any of the sentences. (Even in regular court martials, judges must rule unanimously for executions.)

The defendants may not be able to choose their own counsel—lawyers who, after all, might get in the way of the swift justice commander in chief Bush has ordered.

The military tribunal will have other, more extensive ways to undermine the rule of law than exist in court martials or regular trials. The evidence to be allowed will be without the range of protections accorded defendants in what used to be the American system of justice.

For example, under "the exclusionary rule" in American courts, illegally obtained evidence cannot be used at a trial. Neither can hearsay evidence, which can include rumor and other unverified information about which a witness has no personal knowledge. Such evidence helps produce a death sentence.

Much of the prosecution's evidence will be withheld from the defendant and from whatever lawyer he or she can get because it will allegedly be based on classified intelligence sources. And the military officers in charge will, of course, decide the severe limits on the defense in other respects as well. These secret trials will be based, to a large extent, on secret evidence.

As for proving guilt, the standard will fall below "beyond a reasonable doubt." In a startled response, Democratic senator Patrick Leahy, who caved in to the administration and supported the anti-terrorism bill, with its pervasive assaults on the Constitution, has awakened to what this reckless president is capable of.

Leahy said in the November 15 New York Times that these drumhead tribunals with their arbitrary standards can "send a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Bush is sending a corollary message to the world that is particularly dangerous to American citizens arrested by foreign governments on charges of endangering their national security—journalists reporting "state secrets," travelers talking to native dissenters, or overly curious visiting academics. If the United States can prosecute and even execute loosely identified "supporters" of "terrorism" secretly and swiftly, why can't other countries follow that lawless example in their own interests?

Until now, Attorney General John Ashcroft has taken most of the direct heat for the Bush administration's contempt of both the Bill of Rights and the separation of powers, as well as its ending of lawyer-client confidentiality for dragnet suspects in federal prisons, and its holding of suspects in prisons for days and weeks without releasing their names or the charges, if any, while their families and lawyers search for them.

But now, as the only president we've got, Bush has taken center stage as he further dismantles the Constitution through these military tribunals. In this executive order he has issued as commander in chief, only he—our maximum leader—will decide, in each case, who is to be brought before what in the Old West were called "hanging judges." Then Secretary of Defense Donald Rumsfeld will appoint members of the tribunals and set up the rules. Remember, there will be no appeals to United States courts or to international tribunals.

We have already seen on television and elsewhere in the media a parade of apparatchiks of the president. Included are his loyal vassals in the administration and various legal scholars of realpolitik. This is a war, they intone, and these (presumptive) terrorists do not deserve to be judged by our constitutional standards.

Moreover, Bush's good soldiers add, there can't be an open trial, as the Constitution demands, because our intelligence sources would be revealed. Under the once vaunted American system of justice, defense lawyers would have been entitled to see some of that evidentiary background. But in an open court, the president's defenders argue, witnesses against these dread defendants would be in danger of their lives from the terrorists' hidden colleagues among us.

In the November 15 New York Times, Professor Phillip Heymann of Harvard Law School, a former deputy attorney general, was asked about such rationales:

"Mr. Heymann said that some terrorists, notably those charged in the 1993 World Trade Center bombing, had been successfully prosecuted in the civilian courts with a law [the Classified Information Procedures Act] that allows classified information to be used in a trial without being disclosed to the public.

"Similarly . . . Mr. Heymann said that countless Mafia and drug-cartel trials had been conducted where both witnesses and jurors were protected."

Then Heymann cut to the duplicitous core of George W. Bush's summoning of the military tribunals:

"The tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people."

On Ted Koppel's Nightline (November 14), Harvard Law School professor Anne Marie Slaughter reminded the president and the rest of us that this war is being fought to protect and preserve American values.

"One of these values," she said, "is justice. And we have an entire system designed to achieve that. To forsake that now is to betray the cause we're fighting for."

Also, with regard to our pride in the American system of justice, Slaughter pointed out, "We are trying to gain the confidence and the support of people in Muslim countries around the world, as well as in our own coalition. From that point of view, this is disastrous. They're asking us for evidence [of worldwide terrorism]. We're now saying, 'Well, we can't give you evidence.' "

Brushing these counterarguments aside, defenders of the president insist there are historical precedents for these military tribunals—the trial and hanging of British secret agent John Andre in 1780; the convictions during the Civil War by the Union army of opponents of Abraham Lincoln's policies; and the trials and executions of German saboteurs sneaking into this country during the Second World War.

In response, Georgetown University law professor David Cole emphasized on Nightline, "The only times that military tribunals have been permitted in the past have been in a declared war with respect to enemy aliens—people who are involved in fighting against us in a declared war on behalf of a nation with which we're at war."

Bush asked for an official declaration of war, but Congress declined. So, as Cole said, "We are not in a declared war." Furthermore, "this [Bush executive order] is not limited to people, even to the Al Qaeda people who are fighting against us. This is an extremely broad executive order . . . that's wholly unprecedented."

As the November 15 Washington Post reported: "[This order] would grant the Bush administration complete freedom to set the terms of the prosecution. Defendants could include suspects in attacks on Americans or U.S. interests, and anyone suspected of harboring them." And Ashcroft has "raised the possibility that the government may seek military trials against [the large numbers of] suspects now in custody"—not one of whom has been connected to the September 11 attacks.

At one point in the debate over the USA PATRIOT Act (the anti-terrorism bill), the ACLU reminded us that "the president is not above the law." Now the ACLU, in view of the military tribunals Bush has set up, calls on Congress "to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition."

In view of Congress's yielding most of what John Ashcroft wanted in his and Bush's anti-terrorism bill—despite the damage to the Bill of Rights—its members, concerned with being reelected in this time of terrorism, are not likely, with a few exceptions, to rise to the defense of American values and laws.

Justice Louis Brandeis, dissenting in the first wiretap case before the Supreme Court (Olmstead v. United States, 1928), foreshadowed the advent of George W. Bush:

"Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . . To declare that in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against this pernicious doctrine this Court should resolutely set its face."

In 1928, the Supreme Court agreed with the government's subversion of the Fourth Amendment's privacy protections—setting the initial stage for the current vast expansion of electronic surveillance by the Bush administration—and not only over suspected terrorists. The Court has another chance now to teach the president that he is not above the law. Tell that to your representatives and senators—now!

Tell us what you think. editor@villagevoice.com E-mail this story to a friend.


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To: dixierat22
"Suppose that,in the future, an anti-gun POTUS is elected. He determines that the NRA is a terrorist organization. He suspends the writ of habeas corpus, until the FBI and BATF can clean out the terrorist. He will determine which ones of the terrorists get tried where..."

At that time the second American Revolution will begin!

221 posted on 11/21/2001 4:56:41 AM PST by Destructor
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To: dixierat22
"Suppose that,in the future, an anti-gun POTUS is elected. He determines that the NRA is a terrorist organization. He suspends the writ of habeas corpus until the FBI and BATF can clean out the terrorist. He will determine which ones of the terrorists get tried where....."

You can string together hypotheticals all you want. The fact remains that an unlawful President will not be bound by a lack of precedent. Consequently, whether this EO is allowed to stand or not is irrelevent to what a future lawless President might do or to the preservation of our freedoms in that event. I recognize and share your concerns, I just don't see that opposing Bush in this matters in the context of an unlawful President.

222 posted on 11/21/2001 5:48:25 AM PST by DugwayDuke
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To: dead
"We are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts"

Thank God Gore lost. Imagine that idiot with these powers at his disposal.

223 posted on 11/21/2001 5:53:13 AM PST by mrfixit514
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To: jwalsh07
Are you arguing against military tribunals or the way this one is being created.

Let's ditch the term "military tribunal."

Legally, it doesn't mean anything.

What we are talking about is simply a judicial system. Congress has been given the authority under Article III to set up lower courts. Congress has also been given the authority to pass the laws and procedures by which these courts will be goverened.

Members of the US Military and POWs are tried before a parellel judicial system -- once again, created by Congress -- which takes into consideration the exigencies of military life. This parellel judicial system, just like the regular civilian judicial system, is a creature of statute. The military system is, in all important constitutional respects, identical to the civilian system -- the chief difference pertains to the composition of juries and the manner in which charges are brought.

Now....

Bush's EO creates a THIRD system. A system that applies to certain civilians whom he selects. The sytem provides for no jury, no habeas corpus, and most bizarrely, no appeal before any court. Bush and the Sec. of Def. will legislate the laws governing this third system, they will enforce the laws, and they will sit as the court of appeals -- all three branches subsumed into one.

Bush, obviously, has not been given the authority to pass laws or serve as a court. The EO cites as authority three statutes. The first is the Joint Resoultion recently passed wherein Congress authorizes the Pres to use troops. The other two statutes are from the UCMJ. These two mention the President having the authoirty to implement regulations necessary to adminster the UCMJ -- [i.e., will Marines be tried by the Navy Jag or the Army Jag, or will a midshipmen be held in the brig or in the jail at the naval base, etc., etc. The law specifially states, however, that the Pres. cannot pass any regulation that is contrary or inconsistent with the the UCMJ.]

In answer to your question, military tribunals are fine. Traffic court is fine. Family court is fine. Adminsitrative courts are fine. Night court is fine. So long as the Constituional protections are upheld (they are not in Bush's EO) and so long as it is our elected representatives passing the laws governing the courts (unlike Bush's executive decree) and so long as it is the Judicial branch that hears the cases (unlike Bush's EO where HE is the final judge) I don't have a problem.

224 posted on 11/21/2001 6:51:25 AM PST by backup
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To: jwalsh07
I might agree with you if we were in a legally declared war. But we are not. If Bush, or any other leader, wants to have credibility in these actions, he needs to get under the umbrella of the Constitution. Instead, he has circumvented the Constitution, which is what my basic disagreement is with. If we, the people, don't demand that our government follow the Constitution, we set ourselves up to allow the government to trounce on the individual rights of ALL. This, in the name of 'security', will lead us into totalitarianism.
225 posted on 11/21/2001 6:59:34 AM PST by dixierat22
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To: DugwayDuke
The President passed no laws.

The EO is a law.

Congress passed the law incorporating the UCMJ in the Federal Code.

The UCMJ IS part of the federal code. It was never 'incorporated' into it. You make it sound as if the UCMJ was created by the military and that Congress simply adopted it. That's not the way it works. Every single letter in the UCMJ was, at one point, contained in a bill that was passed by the House, Senate, and signed into Law by the President.

Look in 836, UCMJ.

10 USC 836 specifially says the President can make no regulation or procedure that is "contary to or inconsistent" with ANYTHING contained in the UCMJ.

Once again, the UCMJ applies only to our soldiers and POWs. The Bush EO makes it apply to any foreignor he chooses. Sound "inconsistent"?

The UCMJ provides for appeals up to the Supreme Court. The Bush EO forbids appeals before ANY court EVER. Sound "inconsistent"?

The UCMJ provides for habeas corpus. The Bush EO abolishes the right of habeas corpus. Sound "inconsistent"?

The UCMJ requires unanimity for a death sentence. The Bush EO requires only 2/3. Sound "inconsistent"?

The UCMJ requires a formal indictment and the right to cross-examine the witnesses. The Bush EO requires only the president's signature. Sound "inconsistent"?

The list could stretch out indefinitely.

226 posted on 11/21/2001 6:59:57 AM PST by backup
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To: Marduk
But these liberals should be reminded that it was the Democrats Roosevelt and Truman that pioneered the whole idea in the first place.

This myth must stop.

Yes. There were special courts created during WWII.

But, they were created by CONGRESS and the final arbiter was the JUDICIARY. The laws and regulations governing the trials were set out in the Articles of War passed by Congress (this was way back when Presidents were still naive enough to think they needed our representatives' permnission to wage war.)

Congress has created other tribunals throughout the years by TREATY (a legislative function). Such treaties are governing the trials in the Balkans at this very moment.

In no case did FDR or Truman simply announce the creation by decree that a new court with new rules was being formed wherein they would serve as the final arbitor.

(Indeed, FDR and Truman spent most of their careers waging war against a man in Germany who had made such an outrageous announcement.)

227 posted on 11/21/2001 7:11:40 AM PST by backup
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Comment #228 Removed by Moderator

To: MindBender26
"Mr. Hentoff should step out of the Village Voice office, walk a few blocks downtown, and ask the 5000 people permanently gathered there if we should make it any easier on terrorists."

Your statement suggests that you believe these military tribunals will only be used against terrorists. You are assuming that the guilt of the crime of terrorism would have already been established. That would be a wrong assumption. According to the wording of the order signed by Bush, any non-citizen deemed even the slightest bit suspicious by the president can be dragged before a tribunal, tried, and executed based on the opinion of only a 2/3 majority of the panel of judges. Remember, under this particular order, the president and the president alone has the power to bring someone before a tribunal. Imagine that kind of power in the hands of someone like Clinton (either one).

229 posted on 11/21/2001 8:21:58 AM PST by sheltonmac
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To: sadimgnik
"Gotta say, it doesn't encourage me to visit your fair country!"

Now you know how Americans feel about going into MOST middle eastern countires. It's not a good feeling now is it!

230 posted on 11/21/2001 8:23:35 AM PST by 100%FEDUP
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Comment #231 Removed by Moderator

To: 100%FEDUP
"And no I could care less about what happens to NON-AMERICAN CITIZENS!"

What you cannot seem to understand is that foreign citizens on our shores have rights are still protected by the laws of the United States. We would expect no less from other governments when our own citizens travel abroad. Do you believe that the police could, without a warrant, ransack the home of a Canadian citizen living here in the U.S.? If that Canadian had his house robbed do you think that our laws wouldn't be used to protect him and prosecute the thief? If his non-citizen wife was raped would the rapist not be charged? If foreign citizens were not protected by our laws they could be hunted down and killed with reckless abandon. Or is that what you really want?

232 posted on 11/21/2001 8:37:41 AM PST by sheltonmac
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To: dead
"Are you one of those idiot savant types?"

Maybe I am you seem to be an expert on idiot savants!

233 posted on 11/21/2001 9:13:47 AM PST by 100%FEDUP
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To: sheltonmac
"Do you believe that the police could, without a warrant, ransack the home of a Canadian citizen living here in the U.S.?"

If THAT Canadian is assisting terrorists, yes I feel they should be able to do that. I know, I know you're worried about police busting into ANYONE'S house. Well that is known as neurotic paranoia. You should see a doctor about that problem!

234 posted on 11/21/2001 9:18:56 AM PST by 100%FEDUP
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To: dead
"This was the headline that appeared on the front page of the website"

i didn't say headline. i said original title. stick to the original title, or next time it will get pulled.

235 posted on 11/21/2001 10:03:39 AM PST by Admin Moderator
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To: Admin Moderator
The original title was “Assault on Liberty”

Why did you change it to the subtitle – “Abandoning the Constitution to Military Tribunals”?

Do you threaten to pull your own threads when you do such things? Or is it OK if you do it?

236 posted on 11/21/2001 10:11:16 AM PST by dead
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To: dead
"The original title was “Assault on Liberty”

but it was not "George W. Bush: The Lawless President". that is the one you posted.

you have a point about the subtitle, so i restored the the original title. it was my mistake.

237 posted on 11/21/2001 10:27:28 AM PST by Admin Moderator
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To: Admin Moderator
The fact of the matter is that the Village Voice, for some reason, titles the article one way on the front page, and then two other ways on the page with the article.

I chose the title on the front page, you originally chose title B on the article page, and have now changed to Title A on the article page.

If there is some standard to be used when confronted with this quandary, I would appreciate it if you would deign to share it with me, rather than chastising me and threatening me.

238 posted on 11/21/2001 10:33:46 AM PST by dead
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To: dead
"you originally chose title B on the article page, and have now changed to Title A on the article page."

yes, and that was my mistake. it was not intentional. what i thought was a byline was the title. my stupid mistake.

"If there is some standard to be used when confronted with this quandary, I would appreciate it if you would deign to share it with me"

like i said, stick to the original title.

239 posted on 11/21/2001 10:40:16 AM PST by Admin Moderator
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To: Admin Moderator
like i said, stick to the original title.

I did. Word for word.


240 posted on 11/21/2001 10:51:02 AM PST by dead
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