Tuesday, President George W. Bush signed another order distancing himself and his administration from the way of life they are trying to defend. The order authorized Bush to set up military tribunals to conduct trials of suspected terrorists. These military courts – authorized three times in the past by Presidents Franklin D. Roosevelt, Abraham Lincoln and George Washington during times of war – are not bound to the Bill of Rights or any other constitutionally protected liberties and, as such, should be considered illegal unless Congress formally declares war.
Officials in the Bush administration said the president did not set up any tribunals yet, nor has he identified specific terrorists to be tried. “The president wants as many options as possible, and this option does not preclude any Justice Department actions,” Justice Department spokeswoman Mindy Tucker told CNN on Wednesday. However, though Bush seems to want to keep his options open, authorizing a military tribunal without a formal declaration of war isn’t up to him. No matter how terrible an act, the president cannot simply decide to change the rules.
By doing so – or rather, preparing to do so – Bush is subverting that which he said the terrorists attacked: freedom. The order specified the trials would, if conducted, only be directed against non-U.S. citizens – most likely terrorists caught in Afghanistan or another country in the region. But relegating the effects of an unfair judicial system to people not born within our borders sends the worst possible message to the rest of the world. If someone truly believes in and sees the merit of American values and constitutional principles, he or she should realize that denying those liberties to others is wrong.
Granted, it could have been worse. Bush could have signed an order giving the power of forming a military tribunal to personnel in the field. Right now, with the battle in a tattered, disorganized, chaotic Afghanistan, there exists far too much room for judgmental error and erroneous executions. As the order stands, Bush is the only one who can designate a terrorist and order a military trial.
Our government is divided into three branches for a reason. Bush’s attempted coup on the judicial process could easily be taken as a sign of contempt for the system of checks and balances which Attorney General John Ashcroft has sought so fervently to scurry around. As head of the Justice Department and all law enforcement agencies therein, it is at least understandable – though certainly not commendable – that Ashcroft would want to consolidate power at any cost. Clearly, Ashcroft saw his job after Sept. 11 as primarily one of oversight of a gigantic search and destroy operation. To protect the public, these terrorists must be ferreted out, and the most efficient way to do so involves subverting some traditional civil liberties.
Bush, however, cannot and should not want to take the same tack. As president, he must also constantly remain wary of civil liberties, moral principles and the power of the other two governmental branches. The executive branch does not convict; it prosecutes. As previously stated, a formally declared war provides the exception. Without such a declaration, the U.S. Supreme Court has, in the past, ruled decisively against using a military court to convict anyone not in the U.S. armed forces. They should do so again if Bush tries to take advantage of his order.
What’s more, the American public deserves to know who is responsible for the attacks and why. Two months after Osama bin Laden was named the man behind the mass murder, American citizens have received no explanation how the government came to this conclusion. Officials have withheld evidence under the auspices of protecting intelligence sources, though those same officials have no qualms about providing that evidence to foreign nations, including Pakistan and Iran. Since military tribunals can conduct their proceedings in secret, they will be able to accuse, try, convict and execute suspects without showing the American public any evidence. In a representative democracy, the government acts for and on behalf of the people. If someone is executed in its name, then that public has more than a right to know; they have a need to know.
Neal Richardson and Spencer Crona wrote an opinion piece for the Los Angeles Times last month called “Let Military Panels Punish Terrorists.” In the opening paragraph, they voiced one of the prevailing arguments for such a trial: “Must we spend millions of dollars and months upon months for pretrial hearings, mega-trials and endless appeals as we furnish (bin Laden) the entire panoply of constitutional safeguards afforded ordinary defendants in our civilian system of criminal justice?” The answer must be a resounding “yes” if we want to hold onto our claim to righteousness. This “panoply of constitutional safeguards” is not a courtesy or an antiquated tradition cooked up 200 years ago; it is an undeniable, inalienable right and an integral part of the foundation of our way of life. If the United States is to beat terrorism, we cannot afford to change what it means to be American.
