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.' "
These secret trials
will be based, to a large extent, on secret evidence.
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
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
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
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
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
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
"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." (Emphasis added.)
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
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!