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 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." (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 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!