Justice Deformed: New York Times On War And The Constitution

The New York Times has published an editorial severely critical of secret detentions, military tribunals and the role of the courts in upholding the rule of law.

Text of New York Times editorial.

Justice Deformed: War and the Constitution

December 2, 2001

The inconvenient thing about the American system of justice is that we are usually challenged to protect it at the most inopportune moments. Right now the country wants very much to be supportive of the war on terrorism, and is finding it hard to summon up much outrage over military tribunals, secret detentions or the possible mistreatment of immigrants from the Mideast. There is a strong temptation not to notice. That makes it even more important to speak up.

After the brutal attacks of Sept. 11, the Bush administration began building a parallel criminal justice system, decree by decree, largely removed from the ordinary oversight of Congress and the courts. In this shadow system, people can be rounded up by the government and held at undisclosed locations for indefinite periods of time. It is a system that allows the government to conduct warrantless wiretaps of conversations between prisoners and their lawyers, a system in which defendants can be tried and condemned to death by secret military tribunals run according to procedural rules that bear scant resemblance to normal military justice.

The extreme nature of these new measures and the arbitrary way in which they were adopted are stirring a growing uneasiness among both Republicans and Democrats in Congress, as well as America’s overseas allies. Yet so far the voices of opposition have been timid. It is never easy to criticize a president in wartime. It is especially difficult during this war, which began with the killing of thousands of civilians here at home.

But if the antiterrorism effort is to be a genuine success, Americans must speak up. We do not want history to record this as one of those mixed moments in which the behavior of our government failed to live up to the performance of our troops in the field. We do not want to remember this as a time when the nations of the world united in a campaign against terrorists, and then backed away when America attempted to prosecute foreign nationals in secret trials conducted according to unfair rules.

The administration has awarded itself some of these powers, which go well beyond those just granted in the antiterrorism legislation Congress approved at its request only a few weeks ago. It is now reported that Attorney General John Ashcroft is considering a plan to relax rules barring the Federal Bureau of Investigation from spying on domestic religious and political groups without probable cause. The Founding Fathers, properly wary of an unrestrained executive branch, created our system of checks and balances precisely to guard against a president and his aides grabbing powers like these without Congressional approval or the potential for judicial review. Mr. Ashcroft’s appearance before the Senate Judiciary Committee this week should provide an opportunity for senators from both parties to express their concerns.

Secret Detentions

One of the most troubling moves by the administration has been the secret and in some cases prolonged detention of suspects rounded up after Sept. 11. The Justice Department, which has offered a shifting series of explanations as to why this is necessary, most recently suggested that it was responding to the possibility that Osama bin Laden might have sent “sleeper” agents to the United States. The American system does not hold with the idea of incarcerating a large group of people who it seems to have no credible reason to believe are dangerous, out of vague concern that somewhere among them might be a future law-breaker.

The administration certainly has a right to arrest people who are in the country illegally, and deport them after a judicial hearing. If the federal government had consistently kept track of visitors who failed to leave at the appointed time, it would have been harder for the terrorists to carry out their attacks in New York and Washington. But there appears to be no evidence that the vast majority of those picked up on immigration charges are guilty of anything else, and the punishment must fit the crime. Now, the places they are held and in most cases their names are being kept from the public. Meanwhile there is mounting anecdotal evidence suggesting that some detainees have been held under harsh conditions with limited access to legal counsel.

Mr. Ashcroft retreated last week from some of his stonewalling and filled in certain previously missing details about 548 people in custody for immigration violations, while still refusing to reveal their names. He did release the names, along with other details, for 93 people charged with other, mostly minor crimes. But it was far short of the sort of disclosure the situation calls for.

Military Tribunals

It is by no means clear that the president has the authority to set up military tribunals without specific Congressional authorization. For the administration to act unilaterally in this sphere is no trifling matter. Beyond trespassing on the separation of powers, it could undercut the legality of any military tribunal proceedings. The precedent the administration cites — Franklin Roosevelt’s use of secret military commissions to try eight German saboteurs caught on American soil during World War II — is not reassuring. That trial, which actually did have the support of a Congressional declaration, was an embarrassing skirting of the legal process that occurred mainly to cover up the F.B.I.’s failure to listen when one of the saboteurs attempted to confess and turn in his comrades.

The military tribunals authorized by President Bush have little relation to actual military justice. Under normal military law, trials are not closed to the public, defendants have a right to review all the evidence presented against them, and they cannot be sentenced to death without a unanimous decision by the officers who sit as judges. Defendants also can appeal their cases to higher military courts, and to the Supreme Court. The Bush courts are free to proceed in secret, to withhold evidence from defendants and to deliver capital sentences if two-thirds of the judges consent.

Perhaps most disturbing is the fact that under the administration’s order, the president’s power to insist on military justice is not limited to accused terrorists who are captured overseas. The order’s breadth is astonishing, allowing for the indefinite incarceration and trial of any non-citizen the president deems to be a member of Al Qaeda, to be involved in international terrorism of any type, or to be harboring terrorists. After Sept. 11, Americans were introduced to any number of homeowners who sheltered the men who were about to become hijackers, with no realization that they were anything but students. The scope of these powers should make the potential for abuse clear. The fact that the administration drew them that way should undermine confidence in its self-restraint.

Faith in the Courts

The Bush administration appears to have no faith in the American criminal justice system’s ability to try terrorists fairly and openly, despite the fact that prosecutors have successfully brought to justice the men accused of the first World Trade Center bombing and the attack on the American embassies in Kenya and Tanzania.

Civilian courts are not as fragile as the administration fears. For one thing, longstanding federal laws make it possible to sanitize intelligence information so that it can be introduced as evidence in trials without compromising spying methods. Courts have also given greater latitude to prosecutors in bringing overseas defendants to trial even if they have not been accorded a traditional Miranda warning about their rights before they are questioned after their capture.

The administration has argued that even if the powers it is seizing are broad, it will not use them abusively. This has been a constant theme of Mr. Ashcroft and the administration in general — that they are people who can be trusted to use these broad, repressive rules wisely. That is not the way the American system works. This is a nation built around the rule of law, not faith in the goodness of particular officials.

At a time when the nation is reaching out to create and maintain a global coalition against terrorism, the Bush administration is taking us down a path that will surely wind up embarrassing the country and undermining our own standing as a defender of international human rights and global justice. The United States, which constantly criticizes other countries for holding secret trials, and for refusing to guarantee political prisoners due process, is breaking faith with its own standards. It is no wonder that European countries are uneasy about extraditing anyone to face such tribunals. Our country assures the world that its case against Osama bin Laden is a firm one, but if he is tried in secret, large parts of the world will never believe in his guilt.

One Rule of Law

The administration has been able to push so far down the road toward negating civil liberties without encountering much resistance because the parallel system it is creating only affects non-citizens. Mr. Ashcroft, for example, is not proposing to wiretap the conversations of American prisoners as they talk to their attorneys. These are special rules for outsiders, a fact that is supposed to make those of us on the inside feel safe.

The country does treat non-citizens differently from Americans. Most important, authorities can deport them if they fail to live up to the terms of their visas. But the right to a fair trial, to consult with a lawyer beyond the range of government microphones and protection against being held in secret for minor crimes are not for Americans alone. We believe that they are the rights of all human beings. Our history is a story of continuous struggles to keep the government from sectioning off one segment of humanity as unworthy of the same basic civil rights as everyone else. This is not the time to start infringing the rights of people whose only relationship with international terrorists may be a shared nationality, religion or ethnic background.

We will be judged not by how we hold to our values when it is easy, but when it is difficult. The world is watching.

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