War is Hell (On Your Civil Liberties)
The President issues a decree allowing suspected terrorists to be
tried and sentenced in secret military trials. Is this the way to run a
democracy? BY JESSICA REAVES
CNN: Bush Officials Defend Military Trials in Terror Cases
Thursday, Nov. 15, 2001
This is wartime, the President reminds us. The usual rules do not
apply. Fair enough. But what worries some people, ranging from Bush's
persistent critics at the ACLU to conservative New York Times columnist
William Safire to uber-conservative U.S. Rep. Bob Barr, is this
administration's propensity for overstepping centuries-old legislative
procedures in the name of national security.
In the days immediately after September 11th, for example, Ashcroft
issued a decree permitting federal officers to wiretap pretty much
anyone for almost any reason, and to detain people for extended periods
of time without filing charges. This Tuesday, the Bush administration
went to a whole new level when the President signed an emergency order
allowing non-citizens suspected of terrorism to be tried in military
The decree, urged on the President by Attorney General John Ashcroft,
allows the government to circumvent the legal requirements of a civilian
trial (i.e. all that "innocent until proven guilty" stuff) in
favor of brisk, clandestine proceedings behind closed doors. No jury, no
public hearing. Just swift "justice."
There is a precedent for such an order: In 1942, eight Nazi saboteurs
sneaked onto U.S. soil armed with explosives to be directed against
military and civilian installations. Their plan was thwarted, and all
were tried and convicted in a secret military trial ordered by President
Roosevelt. Of the eight, six were electrocuted.
Upsetting liberals and libertarians
This week's order not only prompted a visceral "this doesn't
seem right" reaction from a variety of public figures, it also
brought many constitutional law experts up short. Is this military
tribunal order actually legal? Shouldn't we just be planning to kill bin
Laden on sight? What does the President's order mean for the 1,100
people detained or arrested since September 11th?
So is this really something we want to be doing?
Christopher Pyle, professor of politics and constitutional law at
Mount Holyoke College, is not convinced the President is acting within
the rights of his office. "Where does the President get the right
to do this? He claims the right to do this as President, as commander in
chief, pursuant to the resolution passed in Congress after the September
11th attacks and pursuant to several statutes in U.S. code. But there's
nothing in either the congressional resolution or federal law that
allows the President to override the legislative process."
The worst-case scenario
How might this order affect legal aliens living in the U.S.?
Professor Pyle offers a grim example. Let's say there's a Pakistani man
who's living here legally, he says. He owns a chain of motels, and one
day, all of a sudden, he's arrested. When he asks why, officials tell
him it's because he "harbored" a suspected terrorist, a man
who once stayed in the motel for a while and took the owner out for a
beer. Instead of being held at the local police station, the Pakistani
man is taken to a military jail, perhaps in a boat off the U.S. coast,
where he can't easily access counsel and can't see his family. He's
tried in the military court, and if two-thirds of the officers find him
guilty, he's sentenced — possibly to death.
The standards of guilt, explains Pyle, are far different in a
military tribunal than they are in a civilian court or even in a
traditional military trial. "They don't need to establish guilt
beyond a reasonable doubt, or even a preponderance of evidence pointing
to guilt," he says. "The court just needs to convince the
majority of the military officers present — all of whom see themselves
as being 'at war' with this prisoner — that the Pakistani man had
something to do with a terrorist act."
Some legal experts question the necessity of creating a whole new
court system. "It's not clear to me why we're doing this now,"
says Professor Jonathan Entin, who teaches constitutional law at Case
Western Reserve University. "We tried the people who bombed the
World Trade Center in 1993 in civilian court. Since we figured out a way
to handle that trial, I guess my question is why this administration now
sees civilian courts as inadequate."
The White House defends its position
Responding to widespread criticism, the White House has remained
resolute. The order exists, the White House asserts, only to provide a
legal framework for trying Osama bin Laden and his al-Qaeda associates.
A brief, secret trial, the theory goes, means the defendants have no
chance to use the international legal stage to broadcast their
philosophies; and excluding a jury from the trial means no one will have
to fear retribution for handing down a guilty verdict.
Professor Entin also questions the message sent by the President's
decision. "My concern about this order, not having reviewed every
detail, is that it kind of undercuts the efforts we've been making as a
nation to distinguish ourselves from regimes like the Taliban," he
says. "It sort of suggests that when the going gets tough, we don't
really believe in our ideals either."
For his part, Christopher Pyle wonders if the President's order would
survive a legal challenge, but doubts we'll ever find out. "This
will probably stand unless Congress or the courts strike it down. And as
we all know, the courts and Congress are not exactly thrilled to
override the President during moments of heightened national security.