Wake Up, America
(taken without permission from the ny times)
November 30, 2001
By ANTHONY LEWIS
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.
http://www.nytimes.com/2001/11/30/opinion/30LEWI.html?ex=1008140821&ei=1&en=e7ab67c581453df2
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