Assault on the Constitution
The Progressive magazine, January 2002
Of all the repressive acts the Bush Administration has engaged
in since September 11, none is as pernicious as the military order
Bush signed on November 13, which authorized extra-constitutional
It is one of the scariest orders ever issued by any President,
and it amounts to the gravest assault on our Constitution at least
since Richard Nixon's Saturday Night Massacre and perhaps since
FDR's order to put Japanese Americans in internment camps or John
Adams's Alien and Sedition Acts of 1798.
This is serious stuff.
By Presidential fiat, George W. Bush has overturned our system
of checks and balances. Brazenly, he states in the order: "I
find . . . that it is not practicable to apply in military commissions
under this order the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United
States district courts."
But what gives him the right to block access to the court
system and suspend the principles of law and the rules of evidence?
The Constitution does not endow him with this power. The President's
judicial powers are restricted to granting reprieves and pardons,
filling vacancies, and making appointments to the Supreme Court.
By contrast, Congress has the power "to constitute tribunals
inferior to the Supreme Court" and the overarching power
"to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Government of the United States,
or in any department or officer thereof."
In plain English, Bush has no authority to do what he has
The sweep of the order is extraordinary. Bush has arrogated
to himself the right to apprehend "any individual who is
not a United States citizen" and subject that person to a
secret military trial and then impose the death penalty. So, even
if you're a legal immigrant, he can round you up, try you, and
fry you. Plus, he can go anywhere around the world, nab any citizen
of a foreign country, and drag that person into his kangaroo court,
which he can hold "outside or within the United States."
He thus can become a globetrotting executioner.
Look at the broad definition of "terrorist" he has
established for himself. He can get you if "there is reason
to believe" (and Bush would be the one doing the believing)
you have "engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation therefor,
that have caused, threaten to cause, or have as their aim to cause,
injury to or adverse effects on the United States, its citizens,
national security, foreign policy, or economy." And if there's
reason to believe that you "knowingly harbored" such
a person, you're also toast.
But the order does not precisely define these "acts of
international terrorism, or acts in preparation therefor."
Conceivably, non-U.S. citizens who are protesting the U.S. war
on Afghanistan, or demonstrating against the World Bank and IMF,
or objecting to sanctions on Iraq could be labeled terrorists,
since Bush may say he has "reason to believe" they are
aiming to affect U.S. foreign policy in an adverse way. He has
given himself the power to arbitrarily apprehend, try, convict,
and execute any number of people.
And don't kid yourself: Convictions would be simple. Check
it out: The Secretary of Defense gets to appoint the military
commissioners who will act as the judges; he gets to establish
"rules for the conduct of the proceedings," including
"modes of proof." He also gets to establish the "qualifications
of attorneys," which means the accused won't necessarily
get to choose their own lawyers. The rules of evidence are twisted
to allow the presiding officer at the trial to admit evidence
that would "have probative value to a reasonable person."
This could include hearsay evidence, or evidence that was acquired
before defendants were read their rights (if there will be such
a reading!), or even evidence that is obtained under duress or
Conviction and sentencing do not require a unanimous finding
by the military tribunal, but only "the concurrence of two-thirds
of the members of the commission present at the time of the vote,
a majority being present."
There appears to be no appeal process to any court in the
United States-or the world, for that matter. "Military tribunals
shall have exclusive jurisdiction with respect to offenses by
the individual," the order states. "The individual shall
not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly, or to have any such remedy or proceeding
sought on the individual's behalf, in any court of the United
States, or any State thereof, any court of any foreign nation,
or any international tribunal."
Oh, there is one possibility of appeal: to Bush or Donald
Rumsfeld. "Submission of the record of the trial, including
any conviction or sentence, for review and final decision by me
or by the Secretary of Defense if so designated by me for that
purpose," the order said. "Me" means Bush.
This is how Peru works, not the United States!
Amnesty International says this new order "violates fundamental
principles of justice in any circumstances, including in times
of war," and is contrary to the Geneva Convention.
Are we going to sit still for this? Evidently, a majority
of the American people are ready to do just that: 64 percent favored
military tribunals, and 68 percent favored the use of capital
punishment in these military tribunals, according to a poll conducted
by NPR, the Kaiser Family Foundation, and the Harvard Kennedy
That is one of the more depressing poll numbers to come down
in a long time. Bad enough that Bush and his war effort garner
near 90 percent approval ratings. But that 64 percent of Americans
are perfectly willing to throw out the Constitution-now that sets
As U.S. citizens, we must use our voices to protest. We still
have the liberty to do so.