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.' "

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!

"The EO is a law."

When did Congress pass this law? As I understand the Constitution, only Congress can pass laws.

"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."

As I remember from my UCMJ classes, Congress directed the services to develop a common set of rules and regulations that would apply to all services to replace those developed by each service so that all servicemen would be treated in a consistent manner. This set was submitted to Congress that codified these rules and regulations into law, the US Code. I believe that is consistent with my original statement.

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

No, the UCMJ also applies to those subject to a tribunal. Tribunals are normally reserved to those who violate the law of land warfare and who are not US Servicemen.

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

No, the EO specifically tasks the SecDef to develop post trial procedures (that includes appeals). That said, you read too much into the EO. The EO does not forbid appeals to courts. I believe the section that has you upset ensures the procedings will be restricted to the military commissions and the appeals process defined by the SecDef. If this has to be consistent with the UCMJ, then it will include the Military Court of Appeals and USSC. In any event, you'll have to see the SecDef rules before making this claim.

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

Once again, no. The EO does not address habeas corpus. The SecDef is directed to develop rules and regulations for the conduct of the tribunals. This is properly addressed in those rules and regulations.

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

For once, you're right. I suspect the EO was hurriedly drafted and no one noticed the distinction. I suspect the EO will be changed.

"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"?"

And again, no. The SecDef is tasked to develope the rules and regulations governing the tribunals specifically including pretrial procedures. The procedures for an indictment will properly be included in those rules and regulations.

"The list could stretch out indefinitely."

So far, there is only one inconsistency, the number of votes for the death penalty. Hardly, indefinite.

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

No, the UCMJ also applies to those subject to a tribunal. Tribunals are normally reserved to those who violate the law of land warfare and who are not US Servicemen.

That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials. (Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?

No, the EO specifically tasks the SecDef to develop post trial procedures (that includes appeals). That said, you read too much into the EO. The EO does not forbid appeals to courts.

I'm reading too much?

I think you are reading too little.

Section 4(b)(8) puts final review of any conviction before the President.

Section 7(b)(2) specifically states there will be no recourse to the courts.

Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief.

Section 7(b)(2) specifially states no accused shall ever be allowed to petition any court for relief.

"The UCMJ requires unanimity for a death sentence. The Bush EO requires only 2/3. Sound "inconsistent"? For once, you're right. I suspect the EO was hurriedly drafted and no one noticed the distinction. I suspect the EO will be changed.

I WROTE:
"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"?"

You just don't get it....

Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak.

The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b)).

I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution.

You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING.

But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))

"That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials."

I disagree based upon the instruction I've received on the UCMJ in a variety of military course, most recently Command General Staff College.

"(Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?"

This section defines a class of persons to be treated as "war criminals".

"Section 4(b)(8) puts final review of any conviction before the President."

The convening authority reviews the outcome of a courts martial or tribunal. This EO states that Bush will be the convening authority. Appeal may take place during the review process, but it includes much more, the US Court of Military Appeals and USSC for example.

"Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief."

And a military tribunal may not function as an Article III court? Where do military personnel file habeas corpus?

"Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak."

The charging official is the President.

"The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b))."

And, how does this differ from other criminal cases? You have an indictment, the Presidential order, then an arrest, detention, and trial, in that order.

" I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution."

Are you claiming that the UCMJ is unconstitutional. Courts martial (trials) can take place "any place" too.

"You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING."

How then does the Executive Branch administer the UCMJ? Doesn't that require judging? Aren't the military judges members of the Executive Branch?

"But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))"

But, even more fundamentally, "836. ART 36. PRESIDENT MAY PRESCRIBE RULES (a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter."

You will note the part about "so far as he considers practicable". (Section 1(f)) is nothing more than a "finding" of the extent this is practicable.

FDR convened his tribunal in total secrecy and when the NAZI's lawyer petitioned for a writ, FDR gathered the Supremes post haste, not Congress. Was FDR's tribunal convened by the judiciary or the military?

Would you provide some source that speaks to who actually ordered the tribunal in 1942?

Certainly.

First, let's get our terms straight. FDR had authority to convene the tribunal -- the executive branch always does that.

The issue regards the nature of the tribunal and the source of its creation.

The tribunal at issue in FDR's day was not created by Presidential decree. Rather it was created by Congress. The following excerpt is from the Supreme Court case of Ex Parte Quirin, 317 US 1:

By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts [317 U.S. 1, 27] martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission.

In short, FDR was merely executing the laws enacted by the legislature. And, at the end of the day, the Judiciary had the final say on the verdict of the accused.

In this case, the Executive branch has enacted the law, and the executive branch has the final say on the verdict of the accused.

What, no comment on the secrecy of FDR's tribunal? I'm starting to think you may have a bit of an agenda.

If by secret you mean closed to the public, I have no problem with that. This country has had secret-trials for national security reasons for well over 200 years.

Why does the bold print only apply to FDR? I have seen nothing yet that states Congress specifically authorized those tribunals in 1942.

I cited that passage becasue it is a good summary of the Articles of War passed by Congress which authorized the military tribunal system utilized by FDR. The statutes themselves are found at 10 U.S.C. 1471-1593. (They were repealed after the war, of course, but you should be able to find a copy on the internet.)

With all due respect, I sense a basic confusion as to how the three branches of government work in relation to a judicial system.

Congress doesn't convene a trial. It doesn't 'authorize' the Executive branch to move forward with a trial in a particular case. That is, FDR did not have to ask Congress for permission to try those particular Germans.

Rather, our Legislative branch passes LAWS setting forth the procedures and rules pertaining to trials. Every Federal Court in this country was created by Congress. All the rules -- how many jurors, what kind of evidence comes in, what the penalties are, what the accused may and may not do during the trial, etc., etc. -- are LAWS and passed by Congress.

Now... The Judicial branch is the branch in charge of actually hearing the case. They decide how Congress' laws are to be interpreted and applied to the particular case at hand. Congress can create quasi-courts -- such as administrative courts or military tribunals -- which aren't technically organs of the Judicial branch. However, at the end of the day, an Article III judge must have the final say.

The Executive branch serves as the prosecutor. It's job is to convince the Judicial branch that a law was broken. The Executive branch can do NOTHING to the accused without first having the Judicial branch OK it. Does the Executive branch want to execute a terrorist? It's first gotta have the Judicial branch's permission. This is what is meant by "due process."

Returning to FDR -- the tribunal, its basic procedures, and its organization was created by Congress. The Judicial branch had the ultimate authority to determine if the verdict was correct. And, the Executive branch (FDR) had the job of prosecuting the accused.

But then again, I have an agenda. I want as many terrorists dead as possible

A laudable goal perhaps.

And one that can easily be accomplished without gutting the Constitution.

You insisted that FDR did not issue an order. That is not true.

Aiiiieeee...

jwalsh07, that is the way it works! Forget about the EO for a moment and consider a regular old court martial. Congress has set forth a procedure for court martials. It has also set forth a procedure for convening one. Basically, Congress says, "Mr. Executive branch, here are the laws regarding court martials. Whenever you find someone who has broken one of our laws, you can convene one."

Back in WWII, Congress created a system for having a military tribunal in the Articles of War. The Articles also said, "The President can set this system up and start the ball rolling whenever he wishes."

That's what FDR did.

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