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. Theadministration has acted without congressional authorization.
- An independent judiciary must be able to review officials' actions thatlimit liberty. The administration's latest order seeks to prevent the civilianjudiciary from reviewing either the constitutionality of the procedures or theirapplicability to any individual.
- Limits on liberty must apply to the narrowest possible categoryconsistent with their purpose. The scope of limits covered by the order extendsfar beyond alleged international terrorists.
- Persons are innocent until proven guilty. The administration claims thatterrorists are not entitled to ordinary due process--and, therefore, assumesthat the government knows in advance who is culpable.
The constitution does permit the use of military tribunals abroadand perhaps even for aliens apprehended in the United States--if they areproperly established and carefully restricted. Indeed, in an important legalmemorandum distributed on November 5 by the Heritage Foundation, theadministration was warned of the need to proceed cautiously. Clearly aware thatthe administration was giving thought to creating tribunals, the authors of thememo analyzed existing legal precedents, pointed out that the Supreme Court hasbecome much more protective of civil rights and civil liberties since it upheldthe trial of German saboteurs by a military commission during World War II, andsuggested 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 thisconclusion. Most of us would insist, however, on the right of habeas corpus in acivilian 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 anunfortunate example for undemocratic nations while dissuading many democraticones from fully cooperating with our own efforts to bring terrorists to justice.Not surprisingly, Spain declared that it would not extradite individuals to theUnited States unless it was assured that they would not be tried in militarycourts or subject to the death penalty.
In defending his authority to issue the order, the presidentrelied heavily on the Supreme Court decision in the German saboteurs case (exparte 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 terroristscaptured abroad would be subject to such trials, the order is much more sweepingthan that. It covers not just alleged al-Qaeda members--whether they engage inany terrorist activity or not--but others alleged to have planned or executedacts of international terrorism targeted at people anywhere in the world, as longas American interests are at stake. And for good measure, it includes anyone whohas knowingly harbored an individual who fits into either of the categoriesabove.
Equally dubious is the assault on due process. Once the president declaresthat someone is a suspect, that person may be seized by the U.S. military at homeor abroad and detained indefinitely. Individuals now in the custody of federal orlocal law-enforcement officials or the Immigration and Naturalization Service areto be turned over to the secretary of defense following the necessarypresidential determination. Even the modest protections that Congress insisted onin the antiterrorism bill are swept aside by this order. The order alsoexplicitly 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 tothe president or the secretary of defense.
The president, then, has stripped away all constitutional protections forsuspected terrorists. By authorizing, for example, the use of any evidence that"would have probative value to a reasonable person," he wipes out not only theMiranda rights but even safeguards against the use of hearsay or evidence derivedfrom torture, seized in violation of the Constitution, or provided by witnesseswho are not available for cross examination by the defendant. Convictions andsentences that involve the death penalty will require a two-thirds vote.Proceedings may be conducted in secret, and defendants and their lawyers may bedenied access to the information upon which convictions are based.
Contrary to the advice offered by the authors of the HeritageFoundation memo, the administration did not seek congressional authority tocreate military tribunals. Rather, it relied on inherent presidential power whileciting the congressional resolution that authorizes the use of force--aresolution that neither establishes a state of war nor calls for tribunals.Indeed, at no time in the debate on that resolution or during the considerationof the antiterrorism bill did the administration hint that it believed it had theauthority to detain and try suspected terrorists in military courts.
Congressional authorization--which is constitutionally required--wouldprovide the opportunity for necessary public debate about such tribunals andtheir procedures. As it happens, Congress is now considering whether it shouldauthorize military tribunals to carry out certain procedures and bar thepresident from exceeding those authorized actions.
The military-tribunal order has set off widespread protest. Many on both theright and the left who had given the administration the benefit of the doubtstrongly opposed secret military courts for civilians who are apprehended in theUnited States. Numerous legislators, including Republican Senator Arlen Specterof Pennsylvania, complained bitterly about the failure to inform even Congressthat this was under consideration.
Democratic Senator Patrick Leahy of Vermont and others have urged Congress tolegislate standards for a military tribunal whose jurisdiction would be largely(if not entirely) outside the United States. In response the administration tookits now familiar tack of arguing that the actual tribunals would not operate inthe way the order permitted. Testimony by the assistant attorney general and anop-ed piece by the president's counsel suggested that the tribunals would havejurisdiction only over persons who violated the laws of war and attackedAmericans. No explanation was provided of where these limits appeared in theorder. Instead, we were told simply to trust the Defense Department lawyers, whowere still working on the details.
Beyond their plain unconstitutionality, there is no reason to think that suchmilitary tribunals are necessary for those apprehended off the field of battle.Our civilian courts are functioning and have proved to be fully capable ofbringing terrorists to justice. Perhaps the administration fears that it will nothave the evidence to convict or that juries in terrorism cases may refuse toimpose the death penalty.
The order establishing these tribunals undermines U.S. efforts to persuadeother nations to respect basic human rights and to follow our lead inestablishing a rule of law. It thus undercuts the struggle against internationalterrorism and dishonors all who have given their lives in defense of our liberty.
