Tribunals: The Ultimate Global Arrogance
How Would the U.S. React Were Another
Nation to Authorize Itself To Conduct Secret Trials of U.S. Citizens?
November 18, 2001
Imagine if Saddam Hussein,
after declaring an extraordinary emergency caused by attacks on his country,
issued an order which purported to give him the legal authority to:
- utilize Iraqi agents to
abduct U.S. citizens from the United States
- have those U.S. citizens
tortured by a third country until confessions were extracted
- set up an Iraqi military
tribunal with judges of his own choosing
- appoint lawyers for those
U.S. citizens of his own choosing
- try those U.S. citizens in
- use the torture-induced
confessions to convict the U.S. citizens
- deny any right of appeal
to any Iraqi court or to any international body
- execute those U.S.
The U.S. government would
react with barely contained outrage!
Well, the powers
hypothetically ascribed to Saddam Hussein above are the powers actually now
enjoyed by George Bush with respect to non-U.S. citizens under his November
Upon what principles of law
or equity can we argue against other nations having the right to take the
same actions in their self-protection that we deem suitable to take in our
own? That we're the good guys, and they're the bad guys, and therefore
they shouldn't have such rights?
The hallmark of valid legal
authority is reciprocity. If we maintain that no other nation can
abduct, try in secret and execute U.S. citizens, then there is no way for us
to maintain that we should have those rights with respect to their citizens.
What if in 1989 President
Daniel Ortega of Nicaragua had issued such an order and used it to
"authorize" the kidnapping, secret trial and execution of Oliver
North for organizing, funding and directing the terrorists -- the contras --
who were at that time killing thousands of Nicaraguan civilians?
Get the point?
Such international terrorism
trials need to be conducted in the open so that the world can judge the
fairness of the proceedings and the strength of the evidence
As to which entity should
conduct such trials, international tribunals are best, since however much
faith we may have in the integrity of the U.S. courts, others don't.
And we -- quite often with great justification -- have no faith in the
integrity of the judicial systems of many other nations.
So the use of open trials
conducted by international tribunals would protect not only non-U.S.
citizens whom we want to try, but would also afford protection to U.S.
citizens charged with terrorism by other countries.
This is all admittedly
hypothetical, since no other nation would likely dare assert such global dictatorial
rights as Bush did in his military order.
The arrogance of the United
States is, admittedly, in a class by itself.
Prior Use of
Military Tribunals Involved Wars With Clearly Ascertainable Endings
Bush Has Set Himself Up to Retain His
Dictatorial Powers Forever
November 17, 2001
Imagine a system where the
prosecutor -- in his sole and non-reviewable discretion -- can decide to
bring charges, empanel a jury composed of people who work for him, select
the defendant's attorney, and use hearsay evidence. The defendant has
no right of appeal to any court, only to the prosecutor.
That prosecutor is George
Bush under his decree establishing military tribunals. Even
right-wingers like William Safire agree that
the decree gives Bush "dictatorial power to jail or execute
Military tribunals have been utilized
in many prior wars the United States has fought. The justification for
the use of such tribunals is that when a nation is at war, certain civil
liberties must be modified in the interest of national security.
But those prior wars were
formally declared, against a finite number of clearly identifiable
enemies. In all those instances, the American public would know that
the war was over when all of the enemies had surrendered. Then the
justification for the use of military tribunals would vanish, and so would
With the war on terrorism, in
contrast, the enemies are terrorist groups which don't occupy defined
territory and are invisible unless sought out and uncovered by law
enforcement. These are groups, according to Bush's criteria, with
worldwide reach, some of which, like Osama bin Laden's Al Qaeda, have cells
in some 60 countries. New groups can be formed, or previously unknown
groups can surface, and they would be enemies in our war on terrorism also.
The American public has no
way of independently determining when the war on terrorism will be
over. There won't be a nation physically overrun, like Germany in
World War II. There won't be a formal surrender ceremony, as with
Japan in World War II.
We're totally dependent on
the government telling us that all terrorist groups with worldwide reach
have been effectively dismembered and no longer have the capacity to do us
harm. That would, in the Bush administration's war framework,
constitute victory. Only when such victory is achieved would the
justification for the military tribunals be removed.
The critical problem is that
Bush, should he choose not to, never has to tell the public that such
conditions constituting victory have been achieved. Bush, or a
successor, can always claim, without fear of definitive contradiction, that
some of the terrorist groups are still alive and well, or that a new group
has been formed which presents a danger to our national security.
For as long as he wants,
therefore, Bush can keep his dictatorial powers to try any non-U.S. citizen
he says is a terrorist.
Even worse, who knows what
expansion of such powers Bush will decree as the potentially endless war on
terrorism extends months and years from now?
Could Bush even apply his
kangaroo court military tribunals to U.S. citizens whom Bush claims are
enemy agents? For example, protesters against the war, or critics of
the methods being used in the war?
Very scary indeed.
Tribunals: He's Judge, Jury and Executioner!
November 16, 2001
If George Bush wants to get
rid of any non-U.S. citizen in the world, he can now
- order that person's
abduction by the U.S. military
- have that person tortured
by a third country to extract a confession
- set up a military tribunal
with judges of his (or his Secretary of Defense's) own choosing
- try that person in secret
- use that torture-induced
confession to convict the person
- execute that person.
There is no judicial
review at any stage of the process. The accused cannot select
their own attorney. No one need be told that the abduction, torture,
trial and execution ever happened: not the person's family, the U.S. press,
the U.S. public-- no one!
The above totalitarian
scenario is perfectly permissible under George Bush's order
establishing military tribunals to try suspected terrorists.
Bush has been roundly
criticized for using the terror attacks on the United States as a cover to
foster adoption of some of his pet causes -- e.g., a missile shield, and tax
refunds to the wealthy -- that have nothing to do with fighting terrorism.
Now a reasonable person could
well fear that Bush is using the war on terrorism as a cover to establish a
Once when Bush was discussing
difficult relations with Congress, he "joked"
that "A dictatorship would be a heck of a lot easier, there's no
question about it."
Unfortunately, he doesn't
seem to have been joking.
the Doctor Did Not Order: Secret Military Trials of Suspected Terrorists
November 14, 2001
George Bush has signed an
executive order that would allow secret military tribunals to try suspected
terrorists who are not U.S. citizens. The secret trials could take
place in the United States or abroad. The death penalty would be
available as a sentencing option. Only a two-thirds vote of a military
panel would be required for conviction, even for application of the death
This order, which does not
require Congressional approval, has been condemned across the political
spectrum. Perhaps no stronger indictment came than from the far right
in the person of William Safire, who opened his New York Times column with
Misadvised by a frustrated
and panic-stricken attorney
general, a president of the United States has just assumed what
amounts to dictatorial power to jail or execute aliens.
In addition to the civil
liberties concerns, there are two devastating practical consequences to this
course of action:
First, utilizing secret
trials would open us up to a never-ending stream of accusations from around
the world that we have secretly tried and executed this person and that
person and this person and that person. How could anyone believe a
denial that we have done so?
Second, aren't terrorists
precisely the kind of defendants we want to try publicly? Public
trials would establish for the world the guilt of those we accuse of
terrorism. Public trials showcase our system of justice, with its
checks-and-balances and concern for fairness. Public trials
distinguish us from the totalitarian systems we claim to oppose.
Secretly trying those very
defendants whom we accuse of attacking our American way of life is the
ultimate irony, as we adopt the methods of the very people we are putting on
With all due respect to the
men and women of genius in the Bush administration: this may well be your
worst idea yet.