President Bush has begun a fascinating new
strategy in the war on terrorism. He has wisely pointed out that we were
attacked on September 11 because the terrorists "hate
freedom." Can there be any questioning this insight? Surely Osama
bin Laden is sitting in a cave somewhere, fuming over the freedoms Americans
enjoy. It's not about our troops in Saudi Arabia. He doesn't really care
about our support of Israel. As long as we're free, Osama bin Laden and his
Al Qaeda organization won't stop their attacks.
So in a brilliant tactical move, President Bush has started to take away
our freedoms.
Think about it. With all our freedoms gone, the terrorists will have no
reason to hate us any more. They'll pack up their Kalashnikovs and
flight-training manuals, move out of their caves, and become productive
members of society again. This strategy of the Bush administration is a
masterstroke, one that will ensure the safety of Americans for years to
come. Once again we'll be able to fly free from fear (except to worry about
the occasional tail fin falling off).
Because of the September 11 attacks, Bush is enjoying unprecedented
levels of popularity. Americans, convinced it is their patriotic duty to
"stand behind
the president," have made it difficult for elected officials to
oppose any of his policies. This has upset the delicate balance among our
government's branches, and Bush has taken advantage of the situation to
extend his power as the nation's chief executive into realms normally
occupied by the Congress and the courts. Here are just a few examples.
Overturning the Presidential Records Act of 1978
In the wake of
Watergate, one thing was perfectly clear: a president who does not believe
he will be held accountable for is actions is a dangerous creature. Richard
Nixon believed he was ultimately beyond the reach of the law, so he broke
it.
So in 1978, Congress passed the Presidential Records Act. It dictated
that 12 years after a president left office, all his papers not immediately
relevant to national security would be available to the public. Ronald
Reagan was the first president to fall under the purview of the Act, and his
papers were slated for release this year.
But President Bush's father, along with many Bush cronies, served in the
Reagan administration. Reagan and the elder Bush have largely avoided
historical judgement for the scandals that should have plagued their
presidencies as well as their legacies. The Iran-Contra affair, the BCCI
scandal, the Savings & Loan debacles: all of these should have resulted
in public humiliations for the two presidents, but they actually suffered
few consequences. Reagan is actually hailed in conservative circles as the
greatest president of the 20th century. And many Reagan and George H.W. Bush
officials now serve in the current Bush administration.
This means that anything revealed in Reagan's papers could potentially
destroy his legacy, embarrass conservatives, and end the careers of several
members of the Bush administration.
So it was hardly surprising that Bush wrote an executive order
overturning the Presidential Records Act. His order made it possible for the
current president, the ex-president whose papers are under consideration, or
that president's family in case of his death to block the release of his
papers. Basically it means that presidents no longer need to fear exposure
for their immoral deeds; they and their families can block it for all time.
What does this mean for the Constitution? Executive orders are supposed
to be a mechanism by which the president directs federal agencies to carry
out his wishes. In the absence of a law, they serve to dictate the policy of
the federal government. However, they cannot replace a law, as passing
legislation is solely in the hands of Congress. In effect, President Bush is
trying to "veto" a law passed more than 20 years ago; clearly this
is unconstitutional.
Bush had delayed the release of the Reagan records several times before
signing this executive order. But with his popularity skyrocketing after the
September 11 attacks, he was able to get away with an unconstitutional act
that protects Reagan, his father, and himself from the consequences of any
unsavory covert actions.
Eliminating the right of attorney-client privilege for 1,000 detainees
suspected of ties to terrorism
Not long after the attacks, the Bush
administration rounded up and detained more than 1,000 people suspected of
ties to the terrorists. This is good news; finding the people responsible
for the attacks (the people still living, anyway) and preventing future
attacks are and should be high priorities for the Justice Department.
But then Attorney General John Ashcroft made an announcement that the
government would be monitoring calls between the detainees and their
lawyers.
The courts have stated clearly that attorney-client privilege is
sacrosanct. The Sixth Amendment states that any one accused of a crime shall
"have the assistance of counsel for his defense," and it's obvious
that anyone who can't speak freely to his lawyer might as well not have a
lawyer at all. Any time the government listens in on a conversation between
a lawyer and his client, it has violated the Sixth Amendment. Not only is it
wrong for the Justice Department to monitor those conversations, but
it runs the risk of actual terrorists being set free because their civil
liberties were violated.
Some argue that terrorists should not enjoy the same rights as we do, but
these people miss the point. The rights in the Constitution exist because we
don't know whether the people held right now are terrorists.
If you say that suspected terrorists shouldn't have rights, you can make
the same argument about suspected murderers. Eventually you'll make it about
suspected criminals, and before long suspected dissidents shouldn't have the
rights of patriotic citizens. The Bush administration's attack on the Sixth
Amendment--no matter who its target--should put fear into us all. It's an
attack on our very freedom, the heart of what makes us American.
Using military tribunals to try terrorists captured abroad
It's
hard to say whether we'll ever catch Osama bin Laden. Afghanistan is a big
country with a lot of hiding places. He has sympathizers all over the world
who would consider it an honor to protect him from justice. But we may catch
him and his associates soon, and if we do, the Bush administration doesn't
want to give them a public trial.
Instead, the president has proposed trying them with a military tribunal.
This improvised court can be organized anywhere, even on a ship at sea.
Judgements would require only a two-thirds majority of a tribunal and would
not be subject to appellate review. Sentences--including death--could be
carried out immediately. Perhaps most shockingly, Defense Secretary Donald
Rumsfeld would set the burden of proof for these trials. While the accepted
burden in the American justice system is guilt beyond a reasonable doubt,
Rumsfeld, who has no legal training, could conceivably require a tribunal to
have nothing more than a "strong suspicion" that someone is guilty
of terrorism to return a guilty verdict.
There's no reason not to bring suspected terrorists back to the United
States and try them in a court of law. (The administration's stated reason,
that they fear for the safety of jurors, is absurd. Millions of Americans
would be willing to risk their lives for the cause of bringing the
terrorists to justice.) We have tried terrorists in our court system before,
and we could do it again.
And of course, the proposal is a direct attack on the Constitution.
Trying and sentencing criminals is the job of the judicial system, and ours
is the best in the world. Nothing in the Constitution gives President Bush
the right to extend the powers of the executive branch in this manner.
Whether or not Osama bin Laden "deserves" a fair trial is
irrelevant. Fair trials are our mechanism for doling out justice in this
country, and it's offensive to the Constitution for Bush to assign himself
that responsibility.