Abandoning the Constitution to Military Tribunals

Comments (0) By Nat Hentoff Tuesday, Nov 20 2001

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.

illustration by Nathan Fox

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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.

Assault on Liberty

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 theirown 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.