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The Trouble with Tribunals
11 December 2001
By now, you've probably heard about that Senate Judiciary Committee hearing last week in which Attorney General John Ashcroft testified in support of the president's decree on Nov. 13, authorizing special military tribunals in this "war on terrorism."
For those who take our Constitutional freedoms seriously, his remarks were more frightening than a Stephen King horror story. For example, Ashcroft said congressional oversight is "not without limits" and that in some areas, "I cannot and will not consult with you."
Why the fuss? New York Times columnist William Safire summed it up rather concisely. Each military tribunal, he wrote, would have the authority to "conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court."
Then Safire makes himself an enemy of the Bush administration with the following observation: "No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination a 'full and fair trial'."
In Ashcroft's world, criticism of these secret tribunals "only aids terrorists" by diminishing "national unity." At one point during the hearing, the man who is charged to be the guardian of our civil rights held up a scarlet book that he claimed was an al Qaeda "how-to guide." This book, he said, instructs terrorists in ways "to use the benefits of a free press - newspapers, magazines, broadcasts - to stalk and to kill victims."
Ashcroft's conservative cronies (you know, the ones who never tire of pointing out the historical ignorance of America's youth) are arguing that precedents for military tribunals were set by Abraham Lincoln and Franklin Roosevelt.
In fact, Ashcroft testified, the power to create the tribunals lay firmly within the executive branch, "and the Supreme Court has never held that any Congress may limit it." Well then, I wonder what conservative history buffs make of the Supreme Court's 1866 Ex Parte Milligan decision that voided Lincoln's order creating military tribunals.
William Norman Grigg, senior editor of The New American magazine, commented on the decision in a recent article. In voiding the Lincoln order, the Supreme Court held that if the president can unilaterally create these kinds of courts, then "republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution and effectively renders the military independent of and superior to the civil powers... .
"Civil liberty and this kind of martial law cannot endure together; one or the other must perish... . Martial rule can never exist where the Courts are open... ," according to the court ruling.
Furthermore, Grigg points out, "the post-World War II Supreme Court decision specified that such tribunals can be convened following a formal declaration of war," which implies that the tribunals are "ultimately subject to congressional action and oversight."
A few weeks ago, the conservative hero of the Clinton-Lewinsky scandal, Kenneth Starr, appeared on Fox News Sunday, defending the Bush tribunals.
Now, usually conservatives love to lambaste the United Nations as being this anti-Western organization working to undermine the sovereignty of the United States of America. But now that it's good PR not to appear like a lone ranger in a global community, Starr argued that tribunals in relation to declaring war are "irrelevant at this stage. And the reason is that we were attacked. And under Article 51 of the UN Charter...it is already understood that we are at war, in the sense (that) we're engaged in acts of self-defense."
Before "Black Tuesday," conservatives were dissing the United Nations. Now, they are justifying secret tribunals with the U.N.'s charter.
So Ashcroft and his supporters are essentially saying: trust us with this secret power.
Fordham University law professor Brian Glick reminds us why this is so difficult a request: "Ashcroft is not just proposing to drop the limits for spying on violent organizations - he wants to drop the limits, period. The FBI has a history of violating the legal limits; there is no telling what they might do without such limits. The document that launched the COINTELPRO operations against the black social movements directed FBI agents to 'disrupt, misdirect, discredit or otherwise neutralize' dissident movements. It's not just the surveillance part of Ashcroft's proposal that is worrisome; it's the psychological operations, the false rumors, the planted media stories, forged documents and the infiltration of d issident groups that the people running the country dislike or fear."