This Op-ed ran in the Baltimore Sun on Sunday, December 16, 2001.
The American public is being misled about the new military tribunals and the president's authority to create them.
Myth 1: These tribunals can only be used against Osama bin Laden and his associates for their acts of terrorism. False.
The president's order is not limited to members of Al Qaeda; it covers any non-citizens suspected of aiding international terrorism by contributing to foreign charities, from Northern Ireland to Southeast Asia. Who is prosecuted may depend less upon law than politics, as yesterday's freedom fighters become today's terrorists, and vice versa. Moreover, the president's men insist that he can, by the mere stroke of a pen, strip Americans as well as resident aliens of their constitutional rights to be free from military detentions and trials.
Myth 2: These would be regular military courts with their usual safeguards. False.
These new tribunals would be nothing like regular military courts. The president's order releases them from any duty to follow the Constitution, the Federal Rules of Evidence or the Uniform Code of Military Justice. The panels can operate in total secrecy and have been instructed to admit any "probative" evidence, which could include statements from undisclosed informants that are rife with hearsay or were obtained by torture.
The tribunal would not have to reach a unanimous verdict that the accused is guilty beyond a reasonable doubt. A finding of "probably guilty" by two-thirds of a doubt-ridden panel would suffice.
Myth 3: If the tribunal's members, who need not have legal training, act unjustly, civilian judges can correct their errors. False.
The president's order denies any rights of appeal, even to the U.S. Court of Military Appeals. It also purports to strip all civilian courts, including the Supreme Court, of their historic power to overturn unjust detentions and trials in response to habeas corpus petitions.
Myth 4: The President has the authority, on his own, to create these tribunals. False.
Under the Constitution, only Congress can create courts. Under Article I, Congress can create courts to govern "the land and naval forces," and it has authorized the military courts we all know and respect. But Congress has not authorized the president to create these tribunals. Nor does anything in the Constitution permit him to create them on his own. If it did, we would not need Congress, the courts or the Bill of Rights. The president could simply announce a "war" on all crimes and govern dictatorially through military tribunals.
Myth 5: The Supreme Court, in the 1942 case of the Nazi saboteurs, held that the president could create such courts on his own. False.
The Supreme Court held that the commission in that case had been authorized by Congress. Those German marines violated Congress's articles of war by invading the U.S. in military uniforms and then switching to civilian clothes, which made them illegal combatants.
Bin Laden's helpers are not illegal combatants from a foreign army operating behind our lines in times of declared war, as the Justice Department recognized when it went to a civilian court in 1994 to try the first bombers of the World Trade Center. Except for the sneak attack, this "war on terrorism" has less in common with World War II than with our undeclared war on drugs which, under Bush's father, included an American invasion of Panama.
Myth 6: Because the president says we are "at war," he may detain suspected terrorists indefinitely and prevent civilian courts from ordering their release for lack of evidence by suspending the privilege of the writ of habeas corpus. False.
What power our government has to order military detentions of civilians is very limited and belongs to Congress, not the president. Congress may authorize the military to detain civilians, but only "in cases of Invasion or Rebellion," and only to the extent that "the public safety may require it." Congress has passed no such law. Nor can Congress rubber-stamp the president's action now, because no invasion or rebellion has shut the civilian courts and made martial law necessary.
Myth 7: Aliens are not entitled to equal justice under law. False.
The rights to be free from unreasonable detention and coerced confessions, to be tried by a jury of one's peers and to be represented by effective counsel of one's own choosing (without government eavesdropping) belong to "the people," or "persons," or "the accused." The Constitution does not limit those rights to "citizens." If it did, nothing would prevent a president from ordering the "disappearance" of aliens, as right-wing South American generals used to do.
During a similar, if not more severe, national crisis, the Supreme Court rejected President Lincoln's use of military tribunals to try Confederate sympathizers. The Court's ruling then bears repeating now: "No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of the [Constitution's] provisions can be suspended during any of the great exigencies of government."
Christopher H. Pyle, a former U.S. Army intelligence officer and staff member of the Senate Select Committee on Intelligence, teaches constitutional law at Mount Holyoke College. He is the author of Extradition, Politics and Human Rights (Temple University Press, 2001).
Copyright 2001, The Baltimore Sun