Posted on 11/27/2001 4:54:16 AM PST by dwbh
Indefensible
The case against military tribunals.
BY ROBERT A. LEVY
Sunday, November 25, 2001 12:01 a.m. EST
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 noncitizen 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 held 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, the 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 I, 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 authorizing "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 sanctioned the use of force, not the procedures for convicting guilty parties.
Second, the administration 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 illegally. 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 law, 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 Institute.
For a historical reality check, there were plenty of black non-citizens in this country at the time of the Framers, and the Bill of Rights clearly was not conceived of as applying to them.
The "Bill of Rights extending to non-citizens" concept is pure liberal blather and has nothing to do with either the Constitution as originally written and ratified or the Federalist.
Persons in this country who are suspected of engaging in terrorist activity are spies engaging in acts of war against this country. The Constitution does not apply to them - international law does. And international law entitles the US to try them as spies in military courts and execute them.
Save the whining for Dershowitz.
But it does say it applies to 'people' which includes non-citizens.
First, Military Tribunals have been used to try military personnel (US Citizens). Perfectly legal and it follows a set of legal rules.
Second, these people are not (for the most part) in the US nor are they US Citizens.
Third, If brought before a "civilian" court, intelligence (including American and other "human" resources", etc.) would be or could be compromized (killed).
Fourth, a civilian trial would more likely result in a "life" sentence. Life would be until a bunch of US Citizens were held hostage and several executed with the threat of more until the guilty non-citizen is freed to terrorize us again (can't spell this: Aqili Lauro, remember.)
Fifth, the Constitution guarantees US a protection of our health and welfare.
Sixth, never prohibited by the Constitution or US Supreme Ct, ie Civil War and WWII.
Seventh, by "WE", do you sympathize with or are you an illegal immigrant, a sympathizer or what?
The argument you embrace seems to be presented by Democrats. As with the ACLU, they leave out the word illegal when referring to immigrants; they ignore the cost to the taxpayer for welfare, etc., that they add less to the tax rolls than they take and the proof is in the WTC etc ALONE! Why do they embrace it? None of ten "new" citizens vote Democratic. They wish to line their pockets. If it were a true issue, there would be a large number of Republicans saying the same thing. Think man, THINK!.
Not one of the people who voted for the Constitution was born in the United States. And nobody is protected by it, it only recognizes the rights God gave each individual regardless of where he lives.
The Dems are trying to show how they stick up for the "little" guy and to acquire their votes. That is why Clinton swore in over a million inellegible, including 40000 convicted felons. Read their "plank" at a Democratic Senators WWW site. Parrots. not Patriots, ALL
Who is "we"? "We" certainly isn't black or red non-citizens, since they were obviously unrepresented at the Constitutional Convention and were excluded from the protections of the Bill of Rights.
"We" obviously means citizens of the several states whose representatives were signatories of the Constitution.
It doesn't; it applies to the US government. So wherever the US government is and whatever it's doing - for instance, holding military tribunals in Timbuktoo - the Constitution defines the powers it has over those subject to it, whether they are citizens or not.
It would surely be a specious argument to claim that God gave these fundamental rights only to citizens of the U.S.
A more pragmatic reason to ensure that such rights protect non-citizens is that the citizens of this nation shouldn't have to prove their citizenship in order to claim the protections against such things as denial of free speech and unreasonable searches. Imagine a situation where the police show up at your doorstep and demand to search your home based solely on your ethnic background or religion and you were required to prove you were a citizen to be protected from this denial of your rights. How quickly could you prove your citizenship?
Because we are at war with these people. Enough said.
"These people" is a trifle vague.
The Supreme Court has never routinely held that foreign spies and saboteurs are entitled to the rights of US citizens. This is pure bait-and-switch.
And if the Constitution was about the "natural rights of all men" then why did it countenance slavery?
That's not correct. Military personnel are tried by military courts, but that's [i]not[/i] the same thing as the proposed tribunals. For example, military personnel have the right of appeal to the Court of Military Appeals, but that's not the case with these tribunals. Apparently, under these tribunals, no appeals at all are permitted. And military courts are required to follow certain rules of evidence and procedure that these tribunals aren't. So for those whose argument is "if its good enough for our own soldiers, it's good enough for terrorists", you're barking up the wrong tree.
I was generally in favor of these tribunals until I read that editorial. It's well-written, and I think it raises some concerns if the tribunals are applied to people who entered this country legally.
You are wrong to a significant degree. Even the Constitution recognizes that certain rights are fluid during wartime - for example, it allows habeous corpus to be suspended during insurrection or invasion - and I consider the presence of terrorist cells in this country to be a form of invasion. So military tribunals are not unconstitutional IMO. However, I do have a problem with the way Bush wants to implement them - by executive order, not by legislative action.
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