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Jacob G. Hornberger
The Future of Freedom Foundation
November 2001

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?

2001 The Future of Freedom Foundation. All rights reserved.

Mr. Hornberger is founder and president of The Future of Freedom Foundation in Fairfax, Va., which has published seven books on domestic and foreign policy.

The Future of Freedom Foundation

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