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Wake Up, America
30 November 2001
Boston - It is the broadest move in American history to sweep aside constitutional protections. Yet President Bush's order creating military tribunals to try those suspected of links to terrorism has aroused little public uproar. Why? Because, I am convinced, people do not understand the order's dangerous breadth — and its defenders have done their best to conceal its true character.
The order is described as if it is aimed only at Osama bin Laden and other terrorist leaders. A former deputy attorney general, George J. Terwilliger III, said the masterminds of the Sept. 11 attacks "don't deserve constitutional protection."
But the Bush order covers all noncitizens, and there are about 20 million of them in the United States — immigrants working toward citizenship, visitors and the like. Not one or 100 or 1,000 but 20 million.
And the order is not directed only at those who mastermind or participate in acts of terrorism. In the vaguest terms, it covers such things as "harboring" anyone who has ever aided acts of terrorism that might have had "adverse effects" on the U.S. economy or foreign policy. Many onetime terrorists — Menachem Begin, Nelson Mandela, Gerry Adams — regarded at the time as adverse to U.S. interests, have been "harbored" by Americans.
Apologists have also argued that the Bush military tribunals will give defendants enough rights. A State Department spokeswoman, Jo-Anne Prokopowicz, said that they would have rights "similar to those" found in the Hague war crimes tribunal for the former Yugoslavia.
To the contrary, Hague defendants like Slobodan Milosevic are entitled to public trials before independent judges, and to lawyers of their choice. The Bush military trials are to be in secret, before officers who are subordinate to officials bringing the charges; defendants will not be able to pick their own lawyers. And, unlike the Hague defendants, they may be executed.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. ..." That covers citizens and noncitizens in this country alike.
On a few occasions, acts of war have been treated as outside Sixth Amendment protection. Roosevelt set up a military tribunal to try Nazi saboteurs landed on our shores in World War II. But that example — a tribunal for a particular occasion, limited in time and scope — shows the very danger of the Bush order. It is unlimited, in a fight against terrorism that could go on for years.
"It's worth remembering that the order applies only to noncitizens," a Wall Street Journal editorial said. I hope The Journal's editors, who are usually supportive of immigrants and their role in building this country, will consider the pall of fear this order may put on millions of noncitizens.
And the Bush order could easily be extended to citizens, under the administration's legal theory. Since the Sixth Amendment makes no distinction between citizens and aliens, the claim of war exigency could sweep its protections aside for anyone in this country who might fit the vague definitions of aiding terrorism.
But George W. Bush would never let his order be abused, one of its defenders said the other day. It was a profoundly un-American comment. >From the beginning, Americans have refused to rely on the graciousness of our leaders. We rely on legal rules. That is what John Adams meant when he said we have "a government of laws, and not of men."
The Framers of our Constitution thought its great protection against tyranny was the separation of the federal government's powers into three departments: executive, legislative, judicial. Each, they reasoned, would check abuse by the others.
There is the greatest danger of the Bush order. It was an act of executive fiat, imposed without even consulting Congress. And it seeks to exclude the courts entirely from a process that may fundamentally affect life and liberty. The order says that a defendant "shall not be privileged to seek any remedy . . . in any court," domestic or foreign.
I do not doubt that leaders of Al Qaeda could properly be tried by a military tribunal. But the Bush order cries out for redrafting in narrower, more careful terms. Under the Constitution, that is the duty of Congress. Its leaders have so far been afraid to challenge anything labeled antiterrorist, however dangerous. It is time they showed some courage, on behalf of our constitutional system.