It's time for some blunt language: The Bush administration has launched a jihad against the Bill of Rights. The warning signs have been evident for weeks: first, the expansive new surveillance-and-detention powers unleashed by the USA-PATRIOT Act; then Attorney General John Ashcroft's hobbling of the Freedom of Information Act, the democratic statute that allows the press to shine a light on the dark corners of government. But with President Bush's executive order establishing military tribunals for noncitizen terrorist suspects, the administration has crossed the Rubicon -- quite literally discarding the Constitution in the name of justice.
Bush's order authorizes military trials, imprisonment and death sentences not only for present or former members of al-Qaida, but for any noncitizen accused of aiding or abetting acts aimed "to cause injury to or adverse effects on the United States, its citizens, national security, foreign policy or economy." Such trials could take place not only on the Afghanistan battlefield but in the United States. The order is being sold as an expedient means of settling the nettlesome question of what to do with Osama bin Laden, but Bush's order explicitly applies as well to those already detained at home in the post-Sept. 11 dragnet.
As early as last Thursday, senior administration officials were telling reporters that immigrants currently held in connection with the Sept. 11 investigation might well face charges in the new drumhead courts -- courts closed to the public, with a lower standard of evidence and few rights for the accused.
The official justification for avoiding conventional trials of al-Qaida suspects is the difficulty of public trial based on classified information, and the danger of terrorist reprisal against witnesses or jurors. But neither explanation holds water. As recently as June, a New York federal jury convicted al-Qaida-linked suspects in the U.S. Embassy bombings. Just weeks ago, U.S. District Judge Leonard Sand sent them to prison for life. Those convicted of the first World Trade Center bombing went to prison, too.
In fact, the tribunals have little to do with public security and everything to do with a power grab by the Bush administration in the weeks since Sept. 11 -- systematically undercutting powers normally held by courts and Congress, protecting the administration's actions from even routine scrutiny by the press. To understand the dangers posed by Bush's tribunal order it must be considered alongside the other powers granted the administration by Congress or seized by presidential fiat in recent weeks -- most often at the expense of courts or the press, the usual avenues for scrutiny.
The USA-PATRIOT Act ("Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") removed layers of judicial review from wiretaps, expanded the authority of government agents for black bag jobs, and gave federal prosecutors unprecedented access to previously secret grand jury investigations. Then there is USA-PATRIOT'S broad definition of terrorism, a definition echoed in the military-tribunal directive. As Nadine Strossen of the ACLU points out, it's sweeping enough to permit the Department of Justice to go after activists and dissenting editorialists on subjects as diverse as the World Trade Organization and Puerto Rico's Vieques bombing range. The public should also not forget those 1,000 or so foreign nationals detained since Sept. 11, their names and any possible charges still unaccounted for. Add to the mix Ashcroft's fettering of the Freedom of Information Act, telling government agencies they can "be assured" that the Department of Justice will defend their decisions to deny FOIA requests. That has roused opposition from numerous mainstream journalism organizations like the Reporters Committee for Freedom of the Press. Finally, there was the Bush decision to delay the release of former President Reagan's papers into the public domain. The picture that emerges from all this is of an administration using Sept. 11 as an excuse for a massive rollback in civil liberties, the kind of crackdown sought by the law-and-order right ever since the 1960s.
The tribunal order is an end run around Congress, too. By Friday morning, voices as diverse as Georgia's conservative Rep. Bob Barr and Vermont's staunchly liberal Sen. Patrick Leahy were all expressing deep alarm not only about the tribunal order itself but about the deep erosion in Congress' authority. The military-tribunal order not only reflects this administration's alarming disregard for civil liberties and its equal impatience with Congress, but its disdain for the mechanisms of international justice. The tribunal scheme offers a convenient evasion of any prospect for a credible and open international trial, should al-Qaida leaders fall into allied hands -- and, not so coincidentally, an equally convenient evasion of our European allies' opposition to capital punishment, an opposition reflected in the absence of a death penalty in the tribunals for the Balkans and Rwanda.
To understand where all this is going, think back a few years to Jim Sheriden's Academy Award-winning film "In the Name of the Father." That movie told the true story of Gerry Conlon, accused of being an IRA terrorist, tried and convicted with secret evidence under Britain's Prevention of Terrorism Act. Conlon was a "foreigner" in London -- a Northern Irish Catholic, detained in precisely the manner now landing Mideast immigrants in jail. It took years for Conlon to be freed. But Conlon's trial -- at a time of widespread public fear and emotion in Britain not so different from the post-Sept. 11 climate here -- was a model of openness and due process compared with the proposed military tribunals, where a guilty verdict and possible death sentence can be based on hearsay evidence and the majority vote of a handpicked military commission, and where the only appeal is directly to the president.
On Thursday, Vice President Dick Cheney was blunt in defense of his boss's tribunal order. "This is the way we dealt with the people who assassinated Abraham Lincoln and tried to assassinate part of the Cabinet back in 1865." He also pointed out that Franklin Roosevelt implemented a similar process during World War II which led to those plotting against the United States being "executed in relatively rapid order." Noncitizen terrorist suspects, he said, "don't deserve the same guarantees and safeguards" embedded in the law. So al-Qaida suspects, guilty or innocent, don't deserve the Bill of Rights. But the question is: Do we?