ALAN KEYES: "Taking Advantage"

WND ^ | Saturday, December 1, 2001 | Dr. Alan Keyes

[Keyes For President]

WorldNetDaily: Taking advantage

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Saturday, December 1, 2001

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Taking advantage

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By Alan Keyes

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© 2000 WorldNetDaily.com--> © 2001 WorldNetDaily.com

From military tribunals to the questioning of foreign nationals and incarceration of suspected terrorist accomplices, the war on terror is obliging Americans, and the government of these United States, to think carefully about the rules that should pertain in the application of government power to individuals – particularly non-citizens.

We shouldn't be alarmed at debate about Bush administration policies in fighting the war. We are a cosmopolitan people, fighting a war against a global, secretive and determined foe. Our adversary seeks to take advantage of the freedom America offers in order to undo that freedom. Preserving the security of American society without sacrificing our liberty is a complicated task, and it is good that so many intelligent citizens are taking part in the debate about how best to do it. And it is also good that, under the Constitution, our national executive can take the steps he deems necessary without waiting for perfect agreement from all of us.

It remains our task to be vigilant that government power remain reasonable, and constitutional. Substantial abuse of government power would undermine the very constitutional system that the actions of our military and civilian officials are pledged to defend. And yet, fear of such abuse must not paralyze our ability to respond to the threat we face. Our founders knew the fear of abusive government power and found the courage to be wise in establishing a government that would be unlikely to become abusive. We should imitate them in retaining the courage to be prudent in our own time.

We must be careful, but determined. Where the use of government power can be justified – in terms of the threat to national security – we must not be unduly fearful of government action. We should trust common sense, and the Constitution, to see us through.

We must be careful not to identify this as a war against certain ethnic or religious groups, rather than as against individuals identified with certain activities. Individuals commit terrorism, and these are our enemies – not the groups to which they happen to belong.

Does this mean that to avoid the charge of "racial profiling," the United States government should be seeking to question all non-citizens in the United States, not just recent arrivals from the Muslim world? Of course not. We have an experiential basis for believing that America faces a threat from individuals fitting a certain description. There is nothing wrong with focusing our inquiry on the area from which the threat is most likely to come.

The goal is to identify terrorists who threaten the United States, so that we can effectively eliminate that threat. Questioning recent visitors from the Muslim world is a manifestly reasonable step to take in the pursuit of that goal.

Visitors to America are here as a privilege, and we can accordingly set terms and conditions that reflect our security requirements. Foreigners who object to being asked questions about what they might know regarding America's mortal enemies certainly should not continue to receive the privilege of being guests of America.

Regarding those foreigners who are actually accused, or might be accused, of a crime under American law, the Constitution clearly indicates that due process must be followed – not just for citizens, but for all persons. For this reason, I believe that it would not be justified to try foreigners captured in America – even those accused of terrorist acts – outside the normal course of our legal procedures simply because they are foreigners.

By definition, military tribunals combine executive and judicial power in a way that is dangerous to civil liberty. Recourse to such tribunals apart from theaters of war, and the exigencies of war, will destroy the constitutional distinction between the judicial and the executive power. There is good reason to judge that the normal application of American law would be unreasonable in the case of terrorists captured in Afghanistan and in the course of military action. The capture and treatment of such people would naturally and reasonably be a matter of military, not civil justice.

But the Constitution, and sound political judgment, require that even foreign enemies of America, if captured and held in America while the American justice system is functioning properly, should be tried if possible under the normal course of that system. "Due process," of course, is a term that must be interpreted with prudence and discretion, and the arrest, accusation and trial of a foreign terrorist on American soil might differ in many ways from the treatment of home-grown criminals.

But the transfer of jurisdiction over such prisoners from civil to military justice should only occur as a matter of real necessity, for it would be the effectual declaration of a limited form of martial law in the United States, itself. Such a course could become necessary, but we should recognize its great danger and leave it as a last resort. No such hesitation is necessary in Afghanistan.

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Be sure to visit Alan Keyes' communications center for founding principles, The Declaration Foundation.

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Former Reagan administration official Alan Keyes, was U.S. Ambassador to the United Nations Social and Economic Council and 2000 Republican presidential candidate.

[Native American Female Vet]

Many amendments in the Patriot Act deal with the Foreign Intelligence Surveiliance Act of 1978. The National Security Act of 1947 that created the CIA, NSC and the NSRB too. Tile 50 U.S.C. is tinkered with a great deal.

[Kale]

Thanks for the good read. Couple questions. Does that court have the capacity to try hundreds, if not thousands of unlawful combatants? And is the same herky-jerky appeals process there that allows trials to drag on for 10+ years?

[Rowdee]

Wonder what the chances are statistically of any other law enforcement entity in the whole United States have of requesting over 500 approvals for surveillance PER YEAR for 20 STRAIGHT YEARS and NOT HAVING AT LEAST ONE TURNED DOWN?? Wonder if SECRETIVENESS has anything to do with the fedgov's success rate with secret courts? Hmmmmmmm....wish I was a mathematician or a statistician....oh well....

[Native American Female Vet]

Since it is a secret court I can not answer those questions. Here is a link to Sec. 1803. Designation of judges
HERE

and Here is a link to TITLE 50 - WAR AND NATIONAL DEFENSE
HERE

These are not updated links with the new stuff from the Patriot act. I am still sorting that out that hard way :-).

I do know the the Patriot Act added 3 more Judges to total 9 and expaned the power of the FISC.

[Native American Female Vet]

Judge Royce Lamberth was in charge of this court last I knew.

[rdf]

Thanks for the post. I rarely disagree with Ambassador Keyes, but I think the portion of the article below is debatable:

Regarding those foreigners who are actually accused, or might be accused, of a crime under American law, the Constitution clearly indicates that due process must be followed – not just for citizens, but for all persons. For this reason, I believe that it would not be justified to try foreigners captured in America – even those accused of terrorist acts – outside the normal course of our legal procedures simply because they are foreigners.

I presume the relevant portions of the constitution are the IVth, Vth and VIth Amendments from the Bill of Rights, and Section 1 of the XIVth Amendment. Alan's language in the article suggest he has V or XIV in mind, since both use the expression, "Due Process." It is not clear to me that they apply to non-citizens, but if they do, then I see the rest of the argument follows as Keyes sets it out.

What do you all say?

Cheers,

Richard F.

[DugwayDuke]

"He says that due to the issue of jurisdiction, a state of martial law would have to be declared for military tribunals to be legal on American soil."

Keyes is mistaken, martial law is not a pre-requisite for military tribunals on US soil. The only pre-requisite according to the Supremes is an offense against the Law of War. See Quirin.

Keyes is also mistaken when he says that military tribunals are a threat to civil liberties. Tribunals are limited to offenses against the Laws of War. Since USSC has held that all other cases should be brought before civil courts, how can these tribunals be a threat to civil liberties?

[rdf]

Tribunals are limited to offenses against the Laws of War. Since USSC has held that all other cases should be brought before civil courts, how can these tribunals be a threat to civil liberties?

Is this true of the new Executive Orders? I don't think so.

Richard F.

[mrsmith]

Keyes does not say that "due to the issue of jurisdiction, a state of martial law would have to be declared for military tribunals to be legal on American soil."
He characterizes the use of military tribunals as "the effectual declaration of a limited form of martial law ", which is a fair characterization of applying the law of war on our own soil because of an attack.

He doesn't state that military tribunals are 'per se' a threat to civil liberties, but that "Recourse to such tribunals apart from theaters of war, and the exigencies of war" is a threat- and rightly so.

A very patriotic and politic statement from Mr Keyes; he uses "war" five times- he's not hiding from the facts.
"under the Constitution, our national executive can take the steps he deems necessary without waiting for perfect agreement from all of us. "
He's a fellow lover of the Constitution.

[Miss Marple]

It is not an executive order, it is a military order, given as a command to Secretary Rumsfeld, in which President Bush is functioning as Commander-in-Chief, which the Constitution designates him as at all times, not just during a declared war.

[marajade]

The USSC disagrees. The USSC has found it to be constitutional. Alan can say whatever he wants but Alan is wrong.

[MHGinTN]

Nice to agree with you on something again, Richard. AK writes well, doesn't he!

But the Constitution, and sound political judgment, require that even foreign enemies of America, if captured and held in America while the American justice system is functioning properly, should be tried if possible under the normal course of that system. "Due process," of course, is a term that must be interpreted with prudence and discretion, and the arrest, accusation and trial of a foreign terrorist on American soil might differ in many ways from the treatment of home-grown criminals. Umm, this paragraph appears somewhat contradictory (the underlined portion seems to contradict the first sentence of the paragraph). Oh well, perhaps the ambiguities turn on the meaning of 'due process' as flexible? ...

During the second world war, Germans landed from a U-boat onto the Flordia or New Jersey coast. They were captured, tried by a tribunal, and executed. Due process based on our Constitution is for U.S. Citizens, not the enemies of the sovereign citizenry.

[marajade]

"BUT will the next occupier of the White House do the right thing ..."

The question isn't valid. The USSC has ruled that it is constitutional regardless of who occupies the WH.

[marajade]

You mean you finally disagree with something Alan has said? Its about time.

[rdf]

It is not an executive order, it is a military order, given as a command to Secretary Rumsfeld, in which President Bush is functioning as Commander-in-Chief, which the Constitution designates him as at all times, not just during a declared war.

I'm not sure what your point is, and I wonder whether this is a distinction without a difference. Isn't a "Military Order" an "Executive Order?"

In any event, I'm suggesting that Keyes may be wrong here on the Constitution, which is the larger point. I'm not sure about this, but I would like it discussed.

Cheers,

Richard F.

[rdf]

You mean you finally disagree with something Alan has said? Its about time.

You mean you finally agree with me about something? It's about time...

:)

Cheers

Richard F.

Actually, I just wonder if this point might not be a matter of dispute, and I really want help in thinking it through.

Best to you,

rdf

[DugwayDuke]

"BY THE ARTICLES OF WAR, AND ESPECIALLY ARTICLE 15, CONGRESS HAS EXPLICITLY PROVIDED, SO FAR AS IT MAY CONSTITUTIONALLY DO SO, THAT MILITARY TRIBUNALS SHALL HAVE JURISDICTION TO TRY OFFENDERS OR OFFENSES AGAINST THE LAW OF WAR IN APPROPRIATE CASES." (sorry about the caps, they are from the original.) You will note the "shall". Actually, you should read the whole opinion. It is quite clear that commissions are the appropriate place to try offenses against the Law of War.

Now you made a rather broad statement that Quirin doesn't apply. What makes you think that?

[marajade]

"I'm not sure what your point is, and I wonder whether this is a distinction without a difference."

The difference is who in gov't oversees it: in this case its the Defense Dept rather than the Justice Dept who has jurisdiction.