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[Even the right-wingers are starting to fidget....]
Seizing Dictatorial Power
<http://www.nytimes.com/2001/11/15/opinion/15SAFI.html>
By WILLIAM SAFIRE
November 15, 2001
WASHINGTON -- 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. Intimidated by terrorists and inflamed by a passion for
rough justice, we are letting George W. Bush get away with the replacement
of the American rule of law with military kangaroo courts.
In his infamous emergency order, Bush admits to dismissing "the principles
of law and the rules of evidence" that undergird America's system of
justice. He seizes the power to circumvent the courts and set up his own
drumhead tribunals, panels of officers who will sit in judgment of
non-citizens who the president need only claim "reason to believe" are
members of terrorist organizations.
Not content with his previous decision to permit police to eavesdrop on a
suspect's conversations with an attorney, Bush now strips the alien accused
of even the limited rights afforded by a court-martial.
His kangaroo court can conceal evidence by citing national security, make
up its own rules, find a defendant guilty even if a third of the officers
disagree, and execute the alien with no review by any civilian court.
No longer does the judicial branch and an independent jury stand between
the government and the accused. In lieu of those checks and balances
central to our legal system, non-citizens face an executive that is now
investigator, prosecutor, judge, jury and jailer or executioner. In an
Orwellian twist, Bush's order calls this Soviet-style abomination "a full
and fair trial."
On what legal meat does this our Caesar feed? One precedent the White House
cites is a military court after Lincoln's assassination. (During the Civil
War, Lincoln suspended habeas corpus; does our war on terror require
illegal imprisonment next?) Another is a military court's hanging, approved
by the Supreme Court, of German saboteurs landed by submarine in World War II.
Proponents of Bush's kangaroo court say: Don't you soft-on-terror,
due-process types know there's a war on? Have you forgotten our 5,000
civilian dead? In an emergency like this, aren't extraordinary security
measures needed to save citizens' lives? If we step on a few toes, we can
apologize to the civil libertarians later.
Those are the arguments of the phony-tough. At a time when even liberals
are debating the ethics of torture of suspects, weighing the distaste for
barbarism against the need to save innocent lives it's time for
conservative iconoclasts and card-carrying hard-liners to stand up for
American values.
To meet a terrorist emergency, of course some rules should be stretched and
new laws passed. An ethnic dragnet rounding up visa-skippers or questioning
foreign students, if short-term, is borderline tolerable. Congress's new
law permitting warranted roving wiretaps is understandable.
But let's get to the target that this blunderbuss order is intended to hit.
Here's the big worry in Washington now: What do we do if Osama bin Laden
gives himself up? A proper trial like that Israel afforded Adolf Eichmann,
it is feared, would give the terrorist a global propaganda platform. Worse,
it would be likely to result in widespread hostage-taking by his followers
to protect him from the punishment he deserves.
The solution is not to corrupt our judicial tradition by making bin Laden
the star of a new Star Chamber. The solution is to turn his cave into his
crypt. When fleeing Taliban reveal his whereabouts, our bombers should
promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound
rock-penetrators.
But what if he broadcasts his intent to surrender, and walks toward us
under a white flag? It is not in our tradition to shoot prisoners. Rather,
President Bush should now set forth a policy of "universal surrender": all
of Al Qaeda or none. Selective surrender of one or a dozen leaders, which
would leave cells in Afghanistan and elsewhere free to fight on, is
unacceptable. We should continue our bombardment of bin Laden's hideouts
until he agrees to identify and surrender his entire terrorist force.
If he does, our criminal courts can handle them expeditiously. If, as more
likely, the primary terrorist prefers what he thinks of as martyrdom, that
suicidal choice would be his, and Americans would have no need of kangaroo
courts to betray our principles of justice.
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