Pyle in the Daily Hampshire Gazette on President Bush's New Executive Order

Thursday, November 22, 2001 - 12:00

This Op-ed ran in the Daily Hampshire Gazette on Thursday, November 22, 2001.

Thursday, November 22, 2001 -- Imagine you have a friend from Pakistan - a student who works nights at a motel. Suppose further that someone alleges that your friend rented a room to an Egyptian knowing that he had connections to al-Qaida.

Under President Bush's new executive order your friend could be charged with "harboring a terrorist." He could be jailed indefinitely without bail, not by civilian authorities, but by the military, possibly on a Navy ship, far from family, friends, and legal counsel. Under an earlier directive, the president would deny him the right to confidential communications with his attorney.

According to the government's law firm (humorously called the "Justice Department)," your friend has no Sixth Amendment right to "a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." He can be tried at sea, not by an impartial judge and a jury of his peers - but by military officers accustomed to taking orders and likely to view him as the enemy.

These officers would not have to follow the Uniform Code of Military Justice or apply the federal rules of evidence. The president would have them admit any evidence they find believable. The Miranda warnings need not be given; even accusations obtained by torture would be admissible. The military can also keep the proceedings secret, in violation of the Sixth Amendment's guarantee of public trials.

Your friend's guilt would not have to be established beyond a reasonable doubt; nor would the verdict have to be unanimous. As few as five members of a 12-person tribunal could condemn him to death. He would have no right of appeal to anyone except the president.

According to Vice President Dick Cheney, loading the scales of justice against foreign terrorists is not unjust, because aliens are not entitled to the same rights as Americans. Where Cheney got that idea is not certain, but the Constitution is clear. The rights to fair and equal justice guaranteed by the Fourth, Fifth, and Sixth Amendments belong to all "persons." They are not limited to "citizens," or denied to "aliens."

Cheney also believes that your friend is not entitled to the same rights as an ordinary defendant, because he is a "terrorist." How does the vice president know that your friend is a "terrorist" when he hasn't even been tried? Because the Justice Department says he is.

Cheney would not grant your friend the usual presumption of innocent until proven guilty. He would readjust the scales of justice so that any alleged terrorist is halfway to being convicted before his trial begins.

During his "war against drugs," President Bush's father sent 20,000 soldiers into Panama to abduct Manuel Noriega, but then afforded him all the safeguards of a civilian trial in Florida. The first bombers of the World Trade Center were accorded the same rights at their trial in New York, and both trials resulted in convictions that were upheld on appeal. But the events of Sept. 11 have somehow rendered your foreign friend too dangerous to be granted the same rights as citizens like Timothy McVeigh.

President Bush has asserted the authority to create a system of kangaroo courts answerable only to him. In so doing, he has violated the Constitution's third article, which vests "the judicial power of the United States ... in one supreme Court, and such inferior Courts as Congress may ... ordain and establish." Congress has not authorized the president to create any secret military courts to try civilians, but it has passed the Posse Comitatus Act of 1878, which forbids the Army to enforce civilian laws.

Your friend is forbidden by Bush's order to petition any court for a writ of habeas corpus, which would require the military to prove the legality of this dictatorial order. That interference with the civilian courts is unconstitutional. Only Congress may authorize the president to suspend the privilege of the Great Writ. However, Congress can only give the president that power in cases of "invasion or rebellion," and they and he may exercise that power only to the extent that "the public Safety may require it." Neither Congress nor the president can ever forbid a civilian from going into a federal court to challenge the legality of his detention by the military.

Why is the administration trying to rig the scales of justice so outrageously? Perhaps because it doesn't have enough evidence to convict bin Laden and his associates by ordinary means. That also might explain why it claims the power to hold secret trials and secret executions on ships at sea.

No one is obliged to support the president blindly, not even in war. Even military officers do not promise to obey the commander-in-chief in anything he does. Their oath, like the duty of every patriot, is to "to defend the Constitution of the United States against all enemies, foreign and domestic." It is time to let this president know that he is getting too big for his britches.

Christopher H. Pyle teaches politics at Mount Holyoke College.