The mantra is simple: September 11 changed everything.
None of us realized how prophetic those words would be. Not only have our daily lives changed, but the Bush administration, in response to September 11, has adopted a series of policies that threaten to change the fundamental principles on which America is founded. Some of those policies violate our concept of basic rights and liberties, and threaten the carefully calibrated balance of power established by our constitution.
Initially, the Bush administration detained 1200 immigrants in secrecy. Their names and the charges against them have been withheld. Next, it permitted eavesdropping on conversations between attorneys and clients suspected of engaging in terrorism. And on November 13, President George W. Bush signed an executive order allowing for the trial of suspected noncitizen “terrorists” by military commissions.
The executive order, apparently issued without the involvement of Congress, imbues the president with the power to subject a person to trial before a military tribunal. Under circumstances where “there is reason to believe” that a person “is or was a member of . . . al Qaeda” or “has engaged in, aided or abetted, or conspired to commit acts of international terrorism . . . ” s/he would be subject to the executive order. Likewise, a person who “knowingly harbored one or more individuals” described above falls within its ambit.
The military tribunal would have the authority to operate in secret and without providing defendants with due-process protections. It is antithetical to our long-honored precepts of fundamental fairness—a hallmark of American jurisprudence. It should be opposed by every member of our community.
Pursuant to the executive order, decisions of the military tribunals may be based, in part, upon hearsay and other evidence that would not be admissible in civilian courts. The military judges, subject to command influence, are not independent, as are federal judges with lifetime appointments. A military commission need not reach a unanimous verdict but may convict by a vote of two-thirds of the members of the commission present at the time of voting, and only a majority need be present. The standard applied by those judges may be less than “beyond a reasonable doubt,” which is required for conviction in criminal trials. Lastly, a conviction, which might lead to a sentence of death or life imprisonment, may not be appealed to a civilian court. A convicted person’s only response is to petition the president.
This scheme removes both Congress and the judiciary from any involvement in the standards to be applied in the trial of these suspects. It gives the executive branch the authority to determine the rules and to select the judges, and even then it need not convince all the judges of the guilt of the accused. All of this may be conducted in secrecy, free from public scrutiny. No wonder this idea has met with opposition by people representing a cross-section of the political spectrum.
Of course we want every person who was involved in planning and executing the attack on the World Trade Center, or who has engaged in other terrorist activities, to be brought to justice. But it is imperative that we insure that those convicted are in fact guilty. That is why America has, throughout its history, followed a proud tradition of guaranteeing a fair trial and insuring due process of law to criminal defendants. That is why we recoil at the idea of holding trials in secret.
Openness and a fair process are requirements for every trial. So is the appointment of an independent decision maker, to avoid accusations of bias or conflict of interest. Proof “beyond a reasonable doubt” is intended to insure that the convicted person is actually guilty of the crime charged. Alarmingly, Bush’s executive order abandons many of the due-process protections intended to protect the wrongfully accused. Even, perhaps especially, in these precarious times, we must adhere to the principles and values of our constitutional democracy when we create a process for trying those accused of terrorism. It is the process, or lack thereof, that reveals who we are as a society.
How will the world react to convictions by these secret courts? What will members of the Islamic faith think when they learn that members of their community were convicted behind closed doors? How will we respond to chants by multitudes claiming that those convicted were not given a fair trial? And surely the charges of hypocrisy will be lodged against us. Will we ever be able to condemn governments who fail to offer Americans held as terrorists a fair trial (e.g., Lori Berenson in Peru)?
We need not travel down this treacherous road. The recent trials in the United States District Court for the Southern District of New York of the men accused of bombing American embassies in Kenya and Tanzania have demonstrated that we need not eliminate the principles of fairness in order to obtain convictions. The suggested alternative of holding international tribunals with appropriate procedural protections, in which America would prosecute the accused, is one that deserves serious consideration.
Military tribunals were last utilized in the 1940s. But it is not enough to say that that amounts to a precedent justifying these new actions. Just as we have rejected slavery, once an “honored tradition” in parts of our nation, and just as we would now reject placing innocent Japanese Americans in internment camps, we should reject military-style tribunals for noncitizens accused of terrorism. Moreover, our notions of what constitutes fairness have evolved over the last 56 years to provide greater due-process protection to the accused.
It is crucially important for Americans to question the policies of the executive branch of government when it undertakes unilateral repressive acts in response to the horrific events of 9-11. These times require us to be vigilant, thoughtful, and outspoken to insure that our values are not undermined. We need not choose between fairness and security. We can and must have both. We can and must hold our government accountable when it fails to defend both of those values with equal vigor.
Twenty-five years from now, historians and others will ask us what we said and did when President Bush and Attorney General John Ashcroft proposed the use of military tribunals. I hope each of us will be able to say we stood tall, spoke loud, and said, “NO.” And I hope we will be able to say that our protests insured that the government adhered to the American principle of fundamental fairness during its campaign to stop terrorism in the early 21st century.
Norman Siegel is a civil rights and civil liberties lawyer.