Recycled: What’s So Wrong About Military Tribunals, Anyway?

Another piece written some time ago (circa 2002 January) that reads chillingly a propos today. This was written before the series of judicial rebukes to the President’s overreaching constitutional “doctrine” of unlimited executive power. Sadly, those rebukes have not rendered the points raised moot.


In the wake of the September 11 attacks, President George W. Bush and his subordinates have steadily increased the reach and power of law enforcement and military agencies. Though this has been done under the cover of securing the country and preserving the uniquely American way of life, it has in fact been a tremendous step in the other direction. No physical attack upon this nation could cause as much damage to America as these political attacks upon four centuries of the habit of freedom. Yet the President continues to enjoy high approval numbers (> 80%) and anyone questioning his tactics is immediately viewed with suspicion, at best.

So, if nearly everyone in the country supports these actions, why are the rest so upset? Why would anyone give voice to potentially divisive opinions? What’s so bad about Military Tribunals, anyway?

Internationally, these tribunals expose American citizens to similar kangaroo courts convened by other nations. It removes from the arsenal of the US State Department the rightful moral indignation that we have, in the past, used to good effect in securing justice and the freedom of American citizens from secret courts and politcal tribunals. The United States is cast as a nation of hypocrites, who eagerly engage in behavior that has previously — and rightfully — been condemned by the United States in the past.

It strengthens the hands of dictators and autocrats, by lending to their star chambers the air of legitimacy conveyed by the United States. At the same time, it saddens and angers those nations that have, for the past half century, stood shoulder-to-shoulder with this one in the great cause of human freedom. Through the President’s order, we court our enemies and shame our friends … is this the proper conduct for a great nation?

The President’s order, with its near-hysterical and inadequate phrasing, overturned four centuries of progress toward open and fair systems of justice. The hitherto inexorable tide has been pulling us toward public courts and public records. Justice in secret is no justice at all; we have learned, through trial and tribulation, that only the engagement of an informed citizenry can ensure that justice be done. The military tribunals deny to Americans one of our oldest and most cherished rights, full access to the courts and the system of justice.

Although the trend of American political thought has been toward erasing artificial barriers and eradicating the walls of privilege, bias, and hatred, the order for military tribunals stands athwart this historical progression. It divides the world into two classes — that of United States citizen and of everyone else — a division based largely on accident of birth — and holds that justice for one is not justice for the other, that the principles of justice and freedom are different depending upon the patch of ground you happen to inhabit. Far from the traditional American understanding — that we can guarantee such liberties as a fair trial only for those within our authority — the tribunal order ordains that such is the right and proper way of the world: that the United States government, given power and competence to ensure a just trial, chooses not to do so for those born elsewhere.

The President’s order reinforces a growing tendency toward secrecy in executive decisions. We have wrestled with the necessary evil of secrecy for many decades. Recently it had seemed that we had turned a corner; that we had recognized that secrecy is anathema to democracy and, in even moderate doses, is poison to the body politic. Yet the President’s order, drafted in secret, hides away many crucial aspects of any case held before a tribunal. The defendant is disallowed even access to the charges against him, much less the evidence used to convict him.

By superseding the well-functioning courts of the world-class American justice system, the President’s order undermines international and domestic respect for that system. Indeed, by asserting that civilian courts could not be counted upon to mete out appropriate justice, the Bush administration has demonstrated its own contempt for the system of justice so painstakingly — at times, so painfully — built over the course of four centuries of freedom. By suspending accepted practices of American justice, at the whim of the President, the order undermines respect for the rule of law, the cornerstone of our polity.

The order also reverses the traditional supremacy of the civilian government over the military. President Bush issued his order not under his powers as chief executive, a political office. He instead issued it as commander in chief of the armed forces; that is, as a wartime leader not subject to civilian concerns. By doing so he managed to dodge possible Congressional supervision of these tribunals. Though civilian courts are open and functioning — functioning quite competently, to judge from the terrorist conviction record of the Manhattan courts — the President chose to cut them from the loop and hand jurisdiction over to ill-constitued, untried military tribunals. He did not even utilize the impressive and respected appartus of military justice that has been built up in the past fifty years. Rather than accord the suspects even the rights they would have under the even-handed Uniform Code of Military Justice, the President decided that only ad hoc and specially constitued military tribunals could be relied upon to reach the decisions he had already made.

Through this mechanism President Bush also signalled his disdain for the hard-won independence of the judicial system, not to mention the doctrine of separation of powers that has served this nation and its citizens so well for so long. Acting as commander-in-chief, he removed the legislative branch from the discussion. Assigning these cases to military tribunals, he cut out the judicial. Indeed, he reserved to his office the sole and unchallengeable power to remand any non-citizen to these special tribunals. The principle of independent appeal — the last, finest bulwark of fairness in the American judicial system — has been waved out of existence by the exercise of the powers of the imperial Presidency, undreamt of even in the darkest days of the Depression or the chilliest contratemps of the Cold War.

The only justification for this overthrow of American history — the only politically palatable fact that allowed the President to slip this into being — lies in his promise that such rules apply only to non-citizens. We are told not to worry that long-held principles of fair play and true justice are being suspended, if not entirely repealled, for this would never happen to us, to the citizens of this great nation. Only those Others, those evil foreigners with hearts of malice, need worry. Let us leave aside well-founded doubts about the value of such promises. Let us ignore the many painful lessons of human history, that such powers inexorably expand their reach, slipping fingers of deceit throughout the nation like cancer. Let us forget the wisdom embodied in Pastor Niemoeller’s poem (“First they came for the Jews…”) Let us pretend that the question is not “Why should we deny the fruits of justice even to non-citizens?” but rather “Why should we give to them the same rights granted to us by the Constitution?”

And therein lies the rub, the unfortunate misunderstanding of the history of this nation. Therein lies the shameful and tragic failure to comprehend what was truly accomplished in this then-tiny country clinging so desperately to the eastern edge of a vast untamed wilderness. The Founders looked up from their personal concerns, their daily distractions, from the fog of war and the chaos of peace. And they saw something which, too often, is lost to our sight. A great truth so layered and polished, so dutifully repeated but so poorly understood, screams out from the pages of history. And the great truth of the American experiment, the bold and glorious truth mired beneath too many uninspired Independence Day speeches, is this: Even to the citizens of the United States, the Constitution of the United States grants no rights.

It only guarantees them.

The rights of humankind depend not upon a frayed and aging document enshrined in the National Archives. Those rights are implicit, inherent, inalienable. All people everywhere have those rights. It is the tragedy of human history that, more often than not, such rights are ignored, abased, trampled. The Consitution is the shield erected by our Founders, that our government not ignore, abase, or trample our fundamental rights. The Founders looked at a world brimming with violence, at a past drowning in blood, and declared, Here, in this place, at this time, for one and for all, shall stand a nation that recognizes the rights of all humanity. Here, in this place, at this time, these rights shall be exercised to the fullest, for wherever this government shall hold sway, these inherent righs shall be recognized.

To quote from another great document of American politics, “We hold these truths to be self-evident, that all men are … endowed by their Creator with certain unalienable Rights” Note that phrasing. We don’t hold that the Creator endows just us with such rights. There is no codicil saying, “Good only for American citizens”. There is no test of birthright or bloodline. There is no passport needed, no Social Security card required. To have these rights, a person need only be born. They can be born on the Upper East Side or on the poorest patch of dirt. They can even be born in Afghanistan. And it does not say, “For people we agree with” or “people we like” or “people who like us”. To have these rights, a person need not have voted Republican in the last election. Nor must a person love Big Macs, or Mickey Mouse, or apple pie. Or even the United States. A person — any person— has worth merely by being alive and being human. A person — any person — has rights that follow from his/her humanity. A person — any person — has been endowed by his/her Creator with certain unalienable rights

Unless and until, apparently, the American President decides otherwise.

The President’s order, far from vanquishing terrorism — far from even helping to vanquish terrorism — hands to terrorists their first great victory. We must be realistic: No terrorist organization can hope to topple the United States. We have four centuries of history. We have the world’s mightest military coupled to the world’s mightiest economy. We have lived in peace as brothers and sisters for nearly one hudnred fifty years. The United States is more than a physical place; it is a vision and a dream and a shared hope. No terrorist can do more than wound and arouse this giant, this juggernaut that has twice before saved the world. No, the terrorists cannot — do not — hope to topple the United States government. Yet they believe they can destroy it. How?

By convincing us to surrender ourselves that which they could never capture. By leading us to doubt our institutions and our history, our achievements and our lessons. By causing us to alter the fundamental quality of our lives. The only victory possible for a terrorist is to force his enemy to fold. Knowing they cannot strike so high as a freedom-loving people, terrorists seek to drag democracies into the same muck from which the terrorists themselves have sprung. They can only win if we are willing partners in their victory, by sacrificing the freedoms and the principles that have made us great. As such, a terrorist can only welcome the President’s order, which tramples freedoms, negates checks-and-balances, undermines democracy, and fundamentally concedes that a well-informed, aroused democracy is, somehow, no match for a bunch of street thugs. A terrorist can only win, that is, if he can force the President to take the action the President has taken.

It’s not about them. It’s about us. It’s about how we see ourselves and how we lead the world to see us — how we lead our children to see us. It’s about how much faith we actually have in this fragile, precious, wonderful thing, this accident of history, this shining beacon on a hill — this system we call the American experiment. It’s about justice for all, plain and simple.

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