Inspiring social change through print, spoken word, and creative action.
Inspiring social change through print, spoken word, and creative action.
- Frédéric Bastiat
Bush's brilliant Press Secretary Ari Fleischer
Apologies for the fact that this page is excessively wordy. There is so much action going on in government right now that it seems impossible to keep up. Unfortunately, the only way to come even remotely close to being aware and on top of all the movement is to do the best you can. Do yourself a favor and read the entries on the White House Press Briefings Archive page. It is updated weekly, and the texts can give a good sense of the way the Administration works with words.
The first concerns G.W. Bush's recent move to try and execute suspected terrorists outside the guidelines of U.S. constitutional law. As you might expect, this has been protested by politicians as well as citizens. Civil liberty issues aside my concern centers around the centralization of power currently in the White House. Bush, a man admittedly fascinated by the Theodore Roosevelt presidency (a presidency remembered most often for its power accumulation), has moved strategically since he has been in office, and the ramifications of those moves are astounding. This article is a reprint from Newsweek which gives a good general account of the military trbunals issue.
Last week President Bush signed an order allowing the use of military tribunals in terrorist cases. The sweeping document, patterned after similar actions taken by FDR and Abraham Lincoln, gives the government the power to try, sentence—and even execute—suspected foreign terrorists in secrecy, under special rules that would deny them constitutional rights and allow no chance to appeal.
Aides say Bush insisted he alone should decide who goes before the military court. Civil libertarians called the plan a dangerous overreaction that puts Americans’ basic rights in jeopardy. Vice President Dick Cheney bluntly dismissed their complaints. “Those who plot against our country will not be allowed to abuse our protections or our freedoms,” he said.
In recent years the United States has tried terrorists in criminal court. But administration lawyers found the prospect of prosecuting hundreds of Al Qaeda members daunting. Jurors and judges would be at constant risk. Just shuttling the defendants from jail cells to courtrooms each morning would be a logistical nightmare. “You’d have to cordon off half the island of Manhattan,” says one official. There was also the problem of evidence: much of the damning material the United States has comes from intelligence agencies and would be too sensitive to disclose in open court. A lot of intelligence is inadmissible hearsay. As one administration lawyer admitted, the government might have a “hard time” proving its cases.
Looking to history, the White House found a way around the problem. In the days after September 11, Justice Department lawyers began drafting a secret legal memorandum. The United States, they concluded, was in a state of “armed conflict” that allowed the president to invoke his broad wartime powers. The president first used the memo as the legal basis for his order to bomb Afghanistan. Weeks later the lawyers concluded that Bush could use his expanded powers to form a military court for captured terrorists. A panel of judges, not a jury, would decide guilt or innocence. Convictions may not require a unanimous vote, just a two-thirds majority. And the government wouldn’t have to prove its case “beyond a reasonable doubt.” Officials envision holding the trials on aircraft carriers or desert islands.
The order permits the president to use military trials for any non-U.S. citizen if there is reason to believe he is an international terrorist—or has “aided or abetted” or “knowingly harbored” one. This includes green-card holders, as well as the hundreds of aliens rounded up after September 11. But senior officials insist they foresee using military courts sparingly—perhaps only for top Al Qaeda members. “It is [our] intention to hold trials that are fair and that are public if we can,” says White House counsel Alberto Gonzales. “If anything is done in secret it will be based upon national-security needs.”
The assurances didn’t quiet complaints that the executive order is too broad and could victimize innocent people. People wrongly accused could wind up secretly imprisoned for months with no knowledge of the charges against them. “Many of our people are scared—and surprised that our country would go to this level where there is no due process,” says Nihad Awad of the Council on American-Islamic Relations. The critics may have more sleepless nights ahead. Next on the agenda: easing restrictions on FBI undercover work, allowing agents to gather more intelligence on terrorist groups. As one official put it, “We’re looking at everything.”
Another view on the same issue...
THE WALL STREET JOURNAL TUESDAY, NOVEMBER 20, 2001
Don't Shred The Constitution To Fight Terror - By ROBERT A. LEVY
President Bush has declared that an "extraordinary emergency" allows him to order military trials of non-U.S. citizens - even if they are arrested here, are tried here, and reside here legally. The president need only assert that he has "reason to believe" the citizen is involved in international terrorism. We all want to fight terrorism, but shredding the Constitution - which applies to all "persons," not just citizens - isn't the way to do it.
Under the recently issued executive order, the defense secretary sets all the rules for these tribunals, including how many members will be on the panel, what qualifications they must meet, what standard of proof will be needed to convict, and what type of evidence can be considered. There will be no judicial review. Only the president or defense secretary will have authority to overturn a decision. Astonishingly, the only rule that Mr. Bush's executive order lays out with specificity is that the accused can be convicted and sentenced - to life in prison or death - if two-thirds of the panel agree.
Even military courts, under the Uniform Code of Military Justice, require unanimity in capital cases and provide for several stages of appellate review. They also preserve many of our Fifth Amendment rights, like protection against double jeopardy and self-incrimination, and the right to Miranda-type warnings. Unlike conventional military courts, the new Bush tribunals could unleash an ugly and dangerous breed of justice, lacking the due process guarantees that distinguish us from the barbarians we are fighting.
The problems grow the more closely one examines the language of Mr. Bush's executive order. For example, the secretary of defense can "transfer to a governmental authority control of any individual" under the order. That could easily be construed to condone deportation, without conviction or trial, to a country that would be more willing than the U.S, to extract information by torture.
The order also provides that a detainee "shall not be privileged to seek any remedy ... directly or indirectly ... in any court of the United States." Despite denials from the administration, that provision sounds much like suspension of habeas corpus, long celebrated as the "Great Writ." Yes, if Congress approves, habeas can be suspended, but only if there has been an invasion or rebellion, neither of which is a fair characterization of September's horrific acts by a handful of terrorists.
Once an individual is scheduled to be tried by a Bush tribunal, the tribunal secures "exclusive jurisdiction with respect to offenses by the individual." Note that the executive order says "offenses," not "terrorism offenses." Thus the tribunal might acquire authority to prosecute ordinary crimes-drug dealing, say-as long as the president had "reason to believe," although not much evidence, that the defendant was also involved in terrorism.
That would not pass constitutional muster. In 1866, in Ex parte Milligan, the Supreme Court hold that military tribunals may not try civilians unless the civil courts are "actually closed and it is impossible to administer criminal justice." After Pearl Harbor, Hawaiian authorities declared martial law, closed civil courts, and used military tribunals to prosecute ordinary crimes. Five years later, in Duncan v. Kahanamoku, tile Supreme Court reaffirmed that martial law could not justify replacing civil courts with military tribunals.
Significantly, the Court also held in Milligan that martial law may be declared only by Congress, during wartime, and subject to judicial review. That raises another grave problem with the edict: It was concocted without congressional input. Citing his power as commander in chief, Mr. Bush claims unilateral authority to establish the new tribunals. But. that authority, at best, is shared with the legislative branch. Congress, not the president, is empowered by Article 1, section 8, "To make Rules for the Government and Regulation of the land and naval forces."
The administration has two responses. First, it contends that Congress has spoken. On Sept. 14 ' the Senate and House overwhelmingly Passed a resolution autborizing "action against those nations, organizations or persons" that the president determines "planned, authorized, committed or aided" the terrorist attacks of Sept. 11. True enough, but the resolution had nothing to say about tribunals. It mentioned the use of force, not the procedures for convicting guilty parties.
Second, the administiation cites the secret military trial, ordered by Franklin Roosevelt, of eight Nazi saboteurs who had landed in the U.S. with explosives. In 1942, the Supreme Court gave its consent (Ex parte Quirin), and six of the eight were ultimately executed. Yet that case cuts the other way, For starters, it applied to agents of a foreign government who were in this country illegaIly. Moreover, the court upheld the right of judicial review, which is nowhere to be found in the Bush executive order, and observed that Congress had formally declared war, expressly authorizing military trials of offenses "against the law of war.' No state of war has been declared today.
The Bush executive order takes a perilous step toward eviscerating the time-honored doctrine of the separation of powers, a centerpiece of our Constitution. Too much unchecked power is vested in a single branch of government. The president and his secretary of defense - if not this administration, then a successor with fewer constitutional scruples - can run roughshod over the Bill Of Rights. At a minimum, to the extent that military tribunals can try legal aliens. without congressional authorization, that's bad !aw, and bad public policy. It is also morally indefensible. This decent and honorable president can do much better.
Mr. Levy is a senior fellow in constitutional studies at the Cato lnstitute
I remember in the late 1980's, I was working for a wood carver in Woodbury, CT. The work was somewhat monotonous and repetitive, involving carving the same shapes repeatedly on power tools. The noise of the power tools, even with just the two of us working, was a bit overwhelming and penetrating. After a few weeks, my employer and I decided to rig a system to the crappy stereo system we had in the shop so that we could both have a set of headphones while we worked. Being as that he liked Bob Marley, and I liked punk rock, there was little common ground musically. We decided instead to listen to the news and the current (at the time) ongoing coverage of the Iran-Contra affair. We would look up at each other in disbelief every few minutes from across the room as the witnesses gave testimony which sounded entirely ludicrous. We commented often after work that it would be a good day when the paperwork behind those deals finally became public so that the citizenry could really see the true face of Oliver North and the other so-called American heroes. Well, that day might never come. Read the following editorial for a good overview on the recent Bush decision to seal such records. So much for democracy and the idea of checks and balances...
In wartime, there is little more vital to government than its ability to work in secret. Secrecy can save lives, both at home and on the battlefield.
But when that need is used as an excuse to avoid political embarrassment — as President Bush did recently in thwarting the release of old presidential records — public trust is lost.
Hiding behind a bogus claim of expanding openness, Bush issued new rules that will greatly complicate the Presidential Records Act, a post-Watergate law intended to ensure the release of administration records 12 years after a president leaves office — in this case, those of the Reagan administration.
Under the law, Reagan documents were due for public release this year. Instead, Bush chose to stack the deck against disclosure, abolishing rules the Reagan administration itself wrote and replacing them with new roadblocks that:
Allow a designated representative of a dead or incapacitated president the right to assert executive privilege in the president's name.
Strip the Archivist of the United States' right to overrule former presidents' executive-privilege claims.
Triple the time former presidents have to review document requests to 90 days and give the current president an indefinite period to review those decisions.
Both Bush and his staff pretend they're increasing access to the documents.
In introducing the rules, White House spokesman Ari Fleischer said that under existing law and procedures a former president has the right to withhold any documents for any reason. "But thanks to the executive order more information will be forthcoming," he said.
That's true only if you pretend that the 1978 law isn't already in effect, implemented through Reagan's executive order.
Administration opponents and critics of government secrecy believe Bush may be attempting to shield members of his administration who also served under Reagan, including Colin Powell and Gale Norton, from embarrassing revelations.
Whatever the motive, Bush's move is part of a larger administration pattern of obstructing the public's right to know how government works. For months Bush has fought congressional efforts to reveal the role of industry lobbyists in writing his energy plan. Bush's attorney general wrote a memo last month promising to back government agencies in court when they exploit legal loopholes to fight Freedom of Information Act requests.
Today the Bush administration enjoys broad public support. Each time the administration abuses secrecy as a convenient dodge rather than a last resort, it puts that support at risk.