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!

They are combatants without uniforms and as such the proper place to deal with them is a military tribunal

Actually, the order states that any person who is not a citizen of the US is subject to these trials by secret tribunals, if the president, and the president alone, has determined that the individual may be one that is thought to: “have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy and it is in the interest of the United States that such individual be subject to this order.”

If this sort of power is acceptable, then the incarceration of our embassy employees in Iran was certainly legitimate. In fact, if this order had been in place in 1979, they could have executed all 400+ of them after military tribunals featuring secret evidence, and cited this power as a legitimate right of a free nation.

I don't understand ... the only Executive Orders I could find for the five-day period surrounding the news story were his re-upping of Clinton's EO's re: Weapons of Mass Destruction and the continued threat (and green light for bombing) Iraq.

Rumsfeld said in the press conference it was by order of the CIC to the department of defense. I guess I got the impression this was somehow different than an EO.

I'll head back to the Federal Register and try to figure out how I missed it.

Well, what do you expect from a nation that refuses to recognize the self-evident truth that "all men are created equal"?

Buncha infidels in D.C. if you ask me ... regardless who they maintain their "favorite philosopher" is.

Any way he did it he did it without Congress.

To do otherwise might clash with and draw attention to the way he declared the "war" in the first place.

Nowadays, all Congress gets to rubberstamp is Uncle Sam's signature at the bottom of the blank checks written to cover the cost of whatever "moral" war needs fighting at this or that nexus of oil or drugs.

I believe, as written, it is a gross overstepping of power by the executive branch.

Military tribunals can have their place (though I think they should be reserved for enemy military personnel.) No matter how you slice it though, this order is rotten. It would be rotten under (either) Clinton, George Bush, or George Washington, for that matter.

The model under which the original WTC bombers were prosecuted and convicted, with little media exposure regarding the specificity of the evidence, seemed to work fine.

Many here are in agreement about Bush's unconstitutional power re/the military tribunals. Dead and Dirtboy have made excellent, very well thought out observations. Yes, we recoil at the thought of Clinton with this power; or worse, Hillary. Shudder.

My question: In a declared war, would these powers not fall under 'martial law' and their use not be limited to the duration of the war? Are some things not self-limited to use only during war situations? Has the fact that the War on Terrorism is undeclared made the probable usurpation of rights more permissible?

For all of our Constitutional scholars here: This order relates to the trial of enemies of the United States, fighting without uniform and attacking civilian and non-military targets, or giving aid and comfort to the same, in a time of war. When Congress passed the resolution after 9/11, they acknowledged that a state of armed conflict existed with the terrorists. Once that was done, the Constitutional authority to deal with these enemies was passed to the commander in chief of the armed forces. Military Tribunals have been tested in the courts and have been found constitutional for this purpose. So all three branches of the government have been involved according to their constitutional role. Bush has the authority to establish these tribunals, as it is a military matter, and Congress has no constitutional authority to interfere with his duties as commander in chief.

If Bush were to use tribunals to try citizens or to punish other crimes, then you might have some reason to object. But the fact of the matter is, the tribunals are legal, constitutional, a common tool in every war, and even acknowledged in international law. (As a matter of fact, combatants not in uniform can be executed without benefit of even a trial before a tribunal, according to the Geneva Conventions.)

<< Why is it that only Republicans concern the liberals when it comes to the law ???? And why is it they were never concerned about Clinton breaking the law? Besides the fact the military tribunals and other new tactics to take down terrorists are all no-brainers IMHO.>> Hentoff may be on the left, but he's pretty consistent in criticizing government abuses. Besides, this isn't the point. Anyone who exposes such dangers is doing us a favor, left or right, hypocrite or not. And the real issue is that such tactics can be used against anybody deemed a "suspected terrorist." Another post on FR points out that, according to one definition, anyone who quotes the Constitution fits this description.

Well, I can't argue with you there. The first sentence hurt Hentoff's credibility. Notwithstanding that blunder, there are some very good points made the rest of the way.

Ditto. Hentoff is ordinarily wonderful. But he is rabid anti-death penalty, which leads him off the deep end on that issue. Apparently death is equivalent to a denial of due process in his book.

But you are correct that he is always worth reading. Personally, I'm surprised to read that Bush asked for a declaration of war. I doubt that; if he did privately and then backed down, that's an error. Congress is such a bowl of jello that he could get the declaration if he wanted it. I have to think he didn't ask, and didn't really want it.

And while I do favor the tribunals (at least I think I do), I'll give Hentoff the point that if you can't declare war, then you can't justify extraordinary war powers, of which tribunals would seem to be one.

For all of our Constitutional scholars here: This order relates to the trial of enemies of the United States, fighting without uniform and attacking civilian and non-military targets, or giving aid and comfort to the same, in a time of war.

For all our reading comprehension scholars here: This order states that any person who is not a citizen of the US is subject to these trials by secret tribunals, if the president, and the president alone, has determined that the individual may be one that is thought to: “have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy and it is in the interest of the United States that such individual be subject to this order.”

In other words, it applies to every person who is not a citizen. They can, each and every one of them, be executed based on secret evidence and a plurality (not unamimous) of opinion of the military tribunal.

Should this be the international model, or should this sort of power reserved only to us good guys? The US oil executives in Nigeria, and the camera happy tourist in Oman, would like to know.

Military tribunals can have their place (though I think they should be reserved for enemy military personnel.)

When the enemy is trying to kill you, they are military personnel. When that enemy is out of uniform they are known as saboteurs and spies.

Now would you care to address at least one of the points or questions I posed in #79?

Here's another question, do you support the killing of the Taliban and Al Quaeda currently taking place in Afghanistan?

Hyperbolic BS.

Part 1, Article 5 of the Geneva Convention

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The Geneva Convention recognises the power of the state to withhold rights when their security is threatened by an enemy.

Why don't you?

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