Even before the ink was dry on the antiterrorism bill,
the Bush administration began relying less on powers granted it by a cowed
Congress and more on assertions of inherent presidential authority. Several new
actions--the establishment of military tribunals, the monitoring of lawyer-client
conversations, the interrogation of several thousand Middle Eastern men, and the
continued detention of hundreds of aliens--have violated the most basic
principles of the American system of justice. Namely:
- Congress must authorize actions that limit liberty. The
administration has acted without congressional authorization.
- An independent judiciary must be able to review officials' actions that
limit liberty. The administration's latest order seeks to prevent the civilian
judiciary from reviewing either the constitutionality of the procedures or their
applicability to any individual.
- Limits on liberty must apply to the narrowest possible category
consistent with their purpose. The scope of limits covered by the order extends
far beyond alleged international terrorists.
- Persons are innocent until proven guilty. The administration claims that
terrorists are not entitled to ordinary due process--and, therefore, assumes
that the government knows in advance who is culpable.
The constitution does permit the use of military tribunals abroad
and perhaps even for aliens apprehended in the United States--if they are
properly established and carefully restricted. Indeed, in an important legal
memorandum distributed on November 5 by the Heritage Foundation, the
administration was warned of the need to proceed cautiously. Clearly aware that
the administration was giving thought to creating tribunals, the authors of the
memo analyzed existing legal precedents, pointed out that the Supreme Court has
become much more protective of civil rights and civil liberties since it upheld
the trial of German saboteurs by a military commission during World War II, and
suggested that with congressional authorization [emphasis added] the
president could try al-Qaeda terrorists in military tribunals even if they were
apprehended in the United States.
Few constitutional scholars or civil libertarians would quarrel with this
conclusion. Most of us would insist, however, on the right of habeas corpus in a
civilian court to challenge whether a detainee was in fact an al-Qaeda terrorist.
And we would assert that the trial must follow minimum due-process standards.
Many would also question the wisdom of using such tribunals, which would set an
unfortunate example for undemocratic nations while dissuading many democratic
ones from fully cooperating with our own efforts to bring terrorists to justice.
Not surprisingly, Spain declared that it would not extradite individuals to the
United States unless it was assured that they would not be tried in military
courts or subject to the death penalty.
In defending his authority to issue the order, the president
relied heavily on the Supreme Court decision in the German saboteurs case (ex
parte Quirin). He ignored both earlier and later Supreme Court decisions that
are relevant, as well as two facts about the World War II case: The Court limited
the jurisdiction of the military commission to those who had violated the rules
of war, and it found that Congress had specifically authorized such commissions.
Although the administration has implied that only suspected terrorists
captured abroad would be subject to such trials, the order is much more sweeping
than that. It covers not just alleged al-Qaeda members--whether they engage in
any terrorist activity or not--but others alleged to have planned or executed
acts of international terrorism targeted at people anywhere in the world, as long
as American interests are at stake. And for good measure, it includes anyone who
has knowingly harbored an individual who fits into either of the categories
Equally dubious is the assault on due process. Once the president declares
that someone is a suspect, that person may be seized by the U.S. military at home
or abroad and detained indefinitely. Individuals now in the custody of federal or
local law-enforcement officials or the Immigration and Naturalization Service are
to be turned over to the secretary of defense following the necessary
presidential determination. Even the modest protections that Congress insisted on
in the antiterrorism bill are swept aside by this order. The order also
explicitly deprives any detainee of the right to appeal his or her detention,
conviction, or sentence in any civilian court; the power of appeal is limited to
the president or the secretary of defense.
The president, then, has stripped away all constitutional protections for
suspected terrorists. By authorizing, for example, the use of any evidence that
"would have probative value to a reasonable person," he wipes out not only the
Miranda rights but even safeguards against the use of hearsay or evidence derived
from torture, seized in violation of the Constitution, or provided by witnesses
who are not available for cross examination by the defendant. Convictions and
sentences that involve the death penalty will require a two-thirds vote.
Proceedings may be conducted in secret, and defendants and their lawyers may be
denied access to the information upon which convictions are based.
Contrary to the advice offered by the authors of the Heritage
Foundation memo, the administration did not seek congressional authority to
create military tribunals. Rather, it relied on inherent presidential power while
citing the congressional resolution that authorizes the use of force--a
resolution that neither establishes a state of war nor calls for tribunals.
Indeed, at no time in the debate on that resolution or during the consideration
of the antiterrorism bill did the administration hint that it believed it had the
authority to detain and try suspected terrorists in military courts.
Congressional authorization--which is constitutionally required--would
provide the opportunity for necessary public debate about such tribunals and
their procedures. As it happens, Congress is now considering whether it should
authorize military tribunals to carry out certain procedures and bar the
president from exceeding those authorized actions.
The military-tribunal order has set off widespread protest. Many on both the
right and the left who had given the administration the benefit of the doubt
strongly opposed secret military courts for civilians who are apprehended in the
United States. Numerous legislators, including Republican Senator Arlen Specter
of Pennsylvania, complained bitterly about the failure to inform even Congress
that this was under consideration.
Democratic Senator Patrick Leahy of Vermont and others have urged Congress to
legislate standards for a military tribunal whose jurisdiction would be largely
(if not entirely) outside the United States. In response the administration took
its now familiar tack of arguing that the actual tribunals would not operate in
the way the order permitted. Testimony by the assistant attorney general and an
op-ed piece by the president's counsel suggested that the tribunals would have
jurisdiction only over persons who violated the laws of war and attacked
Americans. No explanation was provided of where these limits appeared in the
order. Instead, we were told simply to trust the Defense Department lawyers, who
were still working on the details.
Beyond their plain unconstitutionality, there is no reason to think that such
military tribunals are necessary for those apprehended off the field of battle.
Our civilian courts are functioning and have proved to be fully capable of
bringing terrorists to justice. Perhaps the administration fears that it will not
have the evidence to convict or that juries in terrorism cases may refuse to
impose the death penalty.
The order establishing these tribunals undermines U.S. efforts to persuade
other nations to respect basic human rights and to follow our lead in
establishing a rule of law. It thus undercuts the struggle against international
terrorism and dishonors all who have given their lives in defense of our liberty.