Wake Up, America


The New York Times - November 30, 2001


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


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.


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