Destroying American standards

Tribunals: President Bush fundamentally changed our legal process in the name of fighting the likes of Osama bin Laden and Mullah Omar.

November 18, 2001|By Jonathan Turley | Jonathan Turley,SPECIAL TO THE SUN

THE TERRORISTS who struck America on Sept. 11 did not only strive to kill Americans but, in the recent words of Mullah Mohammed Omar, the Taliban leader, they wanted to destroy America. They wanted to change us fundamentally and, on Nov. 13, they may have succeeded to a degree.

President Bush fundamentally changed our legal process in the name of fighting the likes of Osama bin Laden and Mullah Omar. Bush declared that he could not adequately "protect the United States and its citizens" without creating a secret military tribunal that would be exempt from the most basic principles governing American justice. Thus, the administration has unilaterally added the Constitution to the collateral damage of the Sept. 11 attack.

The new order leaves nothing to chance in the administration of this brand of "justice." The government will dictate the rules and standards that will govern the proceedings. Accordingly, the prosecution will decide what standard it will have to meet to execute these defendants.

While federal courts require a unanimous vote of a jury trial, this court will allow a two-thirds vote of handpicked "judges."

To ensure that these individuals will be able to dispatch their subjects without undue delay, Bush has barred any appeal to a federal court. Instead, a defendant can appeal to Secretary of Defense Donald H. Rumsfeld and the president as a substitute for the Supreme Court. The order does not guarantee that the traditional standard of "beyond a reasonable doubt" will apply. Finally, the order leaves open the possibility that most, if not all, of these proceedings will be secret.

In defending the order, Attorney General John Ashcroft said that "the terrorists who launched the Sept. 11 attacks, and the people who helped them, are war criminals who do not deserve the protections of the U.S. Constitution."

Of course, the problem is that no one has tried these individuals and proven that they are in fact criminals of any kind. The government intends to use this tribunal not only for the likes of bin Laden but anyone who may be accused of "aiding or abetting" efforts "to cause injury [to] or adverse effects" for the United States. Such individuals would be pulled into a vortex of circular logic: because the government views them to be guilty they will be denied the rights needed to prove that they are not.

A number of elements in this order cry out for constitutional challenge. The order gives the government the authority to take an individual arrested in the United States and try him in this "Jiffy-Lube" court. However, the Supreme Court has repeatedly held that even foreign nationals are entitled to constitutional criminal protections when apprehended in the United States. The administration's interpretation would essentially claim the right to selectively exempt individuals from constitutional trials at the president's sole discretion.

Putting aside the constitutional problems, the order robs America of the legitimacy it needs to prevail. There was never any question that the United States would prevail militarily against a group of cave-dwelling Luddites.

The moral authority for this war is derived from a system of laws that defines Americans as a people. We have never been defined by our land or any single race or religion. We are defined only by our Constitution and our faith in the rule of law.

Our Constitution requires at times a certain leap of faith; a trust in the traditions of legal process regardless of our desire for any particular outcome. Last week, the administration rejected that leap of faith. Instead, it changed the rules to guarantee the conviction of their enemies.

The cost of this measure is too high. Suspending the operation of our legal system is tantamount to putting out a fire at the Louvre by beating it with the Mona Lisa. The administration has damaged the object of our defense. To engineer conviction of a handful of fanatics, Bush has given those fanatics their greatest prize. They have forced us to blink and question the viability of our traditions and values.

In the end, this order will only confirm the arguments from Islamic countries that the United States never had sufficient evidence to convict bin Laden.

The order also places the executive branch in direct collision with the judicial branch. If Congress also acts to block these measures, the White House will have succeeded in triggering a full inter-branch controversy in the middle of an international conflict. The presidential order also will guarantee inevitable court challenges that will delay and demean the process of the justice.

The government will move to impose the ultimate punishment on these defendants while many citizens and countries denounce the means used for conviction. The government will claim the right to execute individuals under the authority of a tribunal that conservative William Safire has called a "kangaroo court" created in the exercise "dictatorial power."

A trial is more than the exercise preceding punishment; it is our most profound moment as a free people. The federal courts have previously tried and convicted a series of terrorists, including al-Qaida operatives involved in the previous attack on the World Trade Center. These convictions affirmed not only the character of these criminals but America's own character as a nation.

Instead, we will now have a new secret military tribunal that will hear evidence from a recently expanded secret surveillance court, the so-called FISA court. It appears that the administration has discovered the key to streamlining a judicial system. You first get rid of the federal judge; then the jury; and then the governing standards.

Finally, and most important, you then get rid of the public as a witness to the "justice" that will be carried out in its name.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.

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