War is Hell (On Your Civil Liberties)

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President George W. Bush

This is wartime, the President reminds us. The usual rules do not apply. Fair enough. But what worries some people, ranging from Bush's persistent critics at the ACLU to conservative New York Times columnist William Safire to uber-conservative U.S. Rep. Bob Barr, is this administration's propensity for overstepping centuries-old legislative procedures in the name of national security.

In the days immediately after September 11th, for example, Ashcroft issued a decree permitting federal officers to wiretap pretty much anyone for almost any reason, and to detain people for extended periods of time without filing charges. This Tuesday, the Bush administration went to a whole new level when the President signed an emergency order allowing non-citizens suspected of terrorism to be tried in military tribunals.

The decree, urged on the President by Attorney General John Ashcroft, allows the government to circumvent the legal requirements of a civilian trial (i.e. all that "innocent until proven guilty" stuff) in favor of brisk, clandestine proceedings behind closed doors. No jury, no public hearing. Just swift "justice."

There is a precedent for such an order: In 1942, eight Nazi saboteurs sneaked onto U.S. soil armed with explosives to be directed against military and civilian installations. Their plan was thwarted, and all were tried and convicted in a secret military trial ordered by President Roosevelt. Of the eight, six were electrocuted.

Upsetting liberals and libertarians
This week's order not only prompted a visceral "this doesn't seem right" reaction from a variety of public figures, it also brought many constitutional law experts up short. Is this military tribunal order actually legal? Shouldn't we just be planning to kill bin Laden on sight? What does the President's order mean for the 1,100 people detained or arrested since September 11th?

So is this really something we want to be doing?

Christopher Pyle, professor of politics and constitutional law at Mount Holyoke College, is not convinced the President is acting within the rights of his office. "Where does the President get the right to do this? He claims the right to do this as President, as commander in chief, pursuant to the resolution passed in Congress after the September 11th attacks and pursuant to several statutes in U.S. code. But there's nothing in either the congressional resolution or federal law that allows the President to override the legislative process."

The worst-case scenario
How might this order affect legal aliens living in the U.S.? Professor Pyle offers a grim example. Let's say there's a Pakistani man who's living here legally, he says. He owns a chain of motels, and one day, all of a sudden, he's arrested. When he asks why, officials tell him it's because he "harbored" a suspected terrorist, a man who once stayed in the motel for a while and took the owner out for a beer. Instead of being held at the local police station, the Pakistani man is taken to a military jail, perhaps in a boat off the U.S. coast, where he can't easily access counsel and can't see his family. He's tried in the military court, and if two-thirds of the officers find him guilty, he's sentenced — possibly to death.

The standards of guilt, explains Pyle, are far different in a military tribunal than they are in a civilian court or even in a traditional military trial. "They don't need to establish guilt beyond a reasonable doubt, or even a preponderance of evidence pointing to guilt," he says. "The court just needs to convince the majority of the military officers present — all of whom see themselves as being 'at war' with this prisoner — that the Pakistani man had something to do with a terrorist act."

Some legal experts question the necessity of creating a whole new court system. "It's not clear to me why we're doing this now," says Professor Jonathan Entin, who teaches constitutional law at Case Western Reserve University. "We tried the people who bombed the World Trade Center in 1993 in civilian court. Since we figured out a way to handle that trial, I guess my question is why this administration now sees civilian courts as inadequate."

The White House defends its position
Responding to widespread criticism, the White House has remained resolute. The order exists, the White House asserts, only to provide a legal framework for trying Osama bin Laden and his al-Qaeda associates. A brief, secret trial, the theory goes, means the defendants have no chance to use the international legal stage to broadcast their philosophies; and excluding a jury from the trial means no one will have to fear retribution for handing down a guilty verdict.

Professor Entin also questions the message sent by the President's decision. "My concern about this order, not having reviewed every detail, is that it kind of undercuts the efforts we've been making as a nation to distinguish ourselves from regimes like the Taliban," he says. "It sort of suggests that when the going gets tough, we don't really believe in our ideals either."

For his part, Christopher Pyle wonders if the President's order would survive a legal challenge, but doubts we'll ever find out. "This will probably stand unless Congress or the courts strike it down. And as we all know, the courts and Congress are not exactly thrilled to override the President during moments of heightened national security."