Emergencies, Military Tribunals,
and the Constitution
President Bush has ordered that people he suspects of being "terrorists"
will be tried before military tribunals rather than indicted and prosecuted
in the customary judicial manner. Judges and juries (which will consist of
the same people) will be appointed by the secretary of defense, trials will
be held in secret, and convictions will be permitted on a two-thirds vote of
the judges. Punishment will be swift, as the president's order denies the
accused the right to appeal the conviction to either the federal courts of
appeals or the Supreme Court. (The president failed to announce whether he
would permit the federal courts to determine the constitutionality of the
order itself.)
The president's edict, which is being implemented without congressional
approval, applies not only to prisoners captured in the Afghan War who are
suspected of being terrorists but also to any foreign citizen arrested in
the United States on suspicion of having committed a terrorist act here.
Interestingly, the president justified his order under some sort of
"emergency" theory rather than the war powers granted to him under the
Constitution. Perhaps this is because he knows that he has sent the nation
into war without the constitutionally required declaration of war and
therefore feels that the war-powers provision of the Constitution might not
apply. (The commonly cited World War II precedent, in which U.S. military
tribunals were employed to convict and execute German saboteurs operating in
the United States, applied to a war in which the president had secured the
required declaration of war from Congress.)
Let's set aside the issue of how prisoners in the Afghan War should be
treated under civilized rules of warfare and focus only the issue of
foreigners arrested in the United States on a suspicion of having committed
a terrorist offense.
The Fourth, Fifth, and Sixth Amendments to the Constitution encompass what
is known as "due process of law," a protection against government that
stretches all the way back to Magna Carta. Since the amendments refer to
"persons" rather than "citizens," the Constitution accords the protections
of due process to both foreign citizens and American citizens who are
accused of having committed a crime against the United States.
What should disturb every American is that the president is now ignoring not
only the Constitution's declaration-of-war requirement (which prohibits the
president from sending the nation into war without a congressional
declaration) but also the Bill of Rights. If the president feels free to
ignore those important provisions of the Constitution -- with virtually no
opposition from the citizenry -- why wouldn't he feel free to ignore other
provisions?
Ask yourself: Why would the president consider foreign-born terrorists more
dangerous than American-born terrorists? Isn't terrorism terrorism,
regardless of the nationality of the terrorist? Therefore, wouldn't the
president's decision to exclude American citizens from his edict rest solely
on political considerations rather than in a principled belief that American
citizens, including those he suspects of terrorism, should be accorded the
constitutional protections of due process of law? That is, if a president
doesn't believe due process of law is an important principle in and of
itself, why would he believe it's an important principle to apply to
American terrorists?
And if military tribunals are such a good way to administer justice, why
shouldn't we have them handle all crimes against the United States rather
than just terrorism? Indeed, why not have them operate all the time, not
just when there is an "emergency"? Just think how swift "justice" would
be -- no more "constitutional technicalities," no more sensational press
coverage, no more troublesome defense lawyers, no more dumb juries, and no
more appellate delays. Maybe the Founders of our nation had it all wrong --
maybe we'd be better off with no due process at all for anyone anytime. Why,
I'll bet those army generals could even assure that both a trial and an
execution could be accomplished within the same week.
But is all that what the Founders of our nation had in mind when they wrote
the Constitution? Is it what our ancestors had it mind when they ratified
it? I thought the purpose of the Constitution was to protect us from our own
public officials and that its principles were immutable, emergency or not.
If our public officials can ignore the Constitution, which they swore to
uphold and defend, whenever they deem an "emergency" exists, then what good
is it? And where exactly in the Constitution are our government officials,
including the president, given the power to ignore its provisions just
because a so-called emergency arises?
Before the American people surrender their liberty and their constitutional
protections in the quest for security from terrorists, they would be wise to
keep in mind the point that Sir Thomas More made several centuries ago: Once
all the trees are felled, one after another, what will protect you from the
north wind?
Mr. Hornberger is founder and president of The Future of Freedom Foundation (www.fff.org.) and co-editor of The Case for Free Trade and Open Immigration.
by Jacob G. Hornberger
Copyright © 2001 The Multiracial Activist. All rights reserved.
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