I was not surprised to read The Wall Street Journal's editorial in favor of the Bush order. The Journal editors don't much like our constitutional system of justice, with its emphasis on procedural safeguards, exclusionary rules, and the right to a vigorous defense. They see terrorism as a justification—an excuse—for ridding us of "the excesses of the modern U.S. criminal justice system," with its rigorous "standards of evidence," its "exclusionary rule," and "the legal artifice of Johnnie Cochran."

The real danger is that many Americans, not only the editors of The Wall Street Journal, have always distrusted our constitutional system of justice, with its historical preference for the acquittal of the guilty over the conviction of the innocent. They prefer a more streamlined system, with fewer safeguards and fewer acquittals. They trust the government to bring only the guilty to trial.

The war against terrorism—unlike previous wars—will not end on a date specific. We may never declare victory. The military approach to justice reflected in the Bush order may well persist indefinitely, and perhaps even expand in its scope. Its visible successes, undiscounted by its less visible failures, will encourage many Americans to view the military approach to trials—which favors efficiency and certainty over fairness and resolution of doubts in favor of the accused—as the norm rather than the exception. This must never be allowed to happen, if our liberties are to be preserved. As the Supreme Court said, in ruling that Abraham Lincoln had violated the Constitution by subjecting Confederate sympathizers to military tribunals:

Illustration by Patrick Arrasmith

. . . [Our constitution] foresaw that troublous times would arise, when rulers and people would become restive under restraint and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. . . .

This nation . . . has no right to expect that it always will have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right [to suspend provisions of the Constitution during the great exigencies of government] is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.

We must begin to contemplate these dangers now, in the face of President Bush's tyrannical order.

Alan Dershowitz's latest book is Letters to a Young Lawyer (Basic).

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