I was sitting in the public library the day Bush's order creating military tribunals was issued. A loud young man was in a froth about it, and he announced to a companion that the "friggin' Nazis is takin' over. It's, like, secret police time." He rattled off the elements of the new order, and, despite the geeky over-the-top colloquialism with which he cloaked every phrase, got it entirely right: The President wants to allow the military to try noncitizens suspected of terrorism in secret tribunals rather than courts. No requirements of due process, public charges, adequacy of counsel, the usual rules of evidence or proof beyond a reasonable doubt. The cases would be presented before unspecified judges, with rulings based on the accusations of unidentified witnesses. The tribunals would have the power to execute anyone so convicted, with no right of appeal.
The young man's friend, a dour bespectacled sort, was unruffled. "This is America, man. That can't happen. If they tried to do it, you'd see. The American people would be up in arms in a minute." The minutes have been ticking right on by since then. With the exception of rather muffled and nonspecific reports of broad consternation among the "usual suspects" of human rights groups, most Americans remain remarkably unconcerned.
"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution," says John Ashcroft in defense of the tribunals. There are a number of aspects of that statement that ought to worry us. First, the reasoning is alarmingly circular in Ashcroft's characterization of those who have not yet been convicted as "terrorists." Most lawyers fresh out of law school know enough to refer to "the accused" rather than presuming guilt before adjudication. Our system of innocent until proven guilty is hardly foolproof, but it does provide an essential, base- line bulwark against the furious thirst for quick vengeance, the carelessly deadly mistake–albeit in the name of self-protection. In the wake of even so vast a horror as the Holocaust, the orderly gravitas of the Nuremberg trials provided a model we might do well to follow.
Second, it is worrisome when the highest prosecutor in the land declares that war criminals do not "deserve" basic constitutional protections. We confer due process not because putative criminals are "deserving" recipients of rights-as-reward. Rights are not "earned" in this way. What makes rights rights is that they ritualize the importance of solid, impartial and public consensus before we take life or liberty from anyone, particularly those whom we fear. We ritualize this process to make sure we don't allow the grief of great tragedies to blind us with mob fury, inflamed judgments and uninformed reasoning.
In any event, Bush's new order bypasses not only the American Constitution but the laws of any other democratic nation too. It even exceeds the accepted conventions of most military courts. (I say this provisionally, given that the Bush Administration is urging that similar antiterrorism measures be enacted in Russia, Britain and the European Union.) Moreover, since our system of justice is the model for international human rights generally, in bypassing it we position ourselves outside virtually all international human rights treaties.
As the hours and days have passed since the order was published, a number of popular defenses of it have emerged: We should trust our President, we should have faith in our government, we are in a new world facing new kinds of enemies who have access to new weapons of mass destruction. Assuming all this, we must wonder if this Administration also questions whether citizens who are thought to have committed heinous crimes "deserve" the protections of American citizenship. The terrorist who brought to a standstill all three branches of government with mailed anthrax is, according to the FBI, probably a lone American microbiologist. Although authorities have not yet rounded up thousands of microbiologists for questioning, I wonder whether the government will soon be hauling them before military tribunals–for if this is a war without national borders, the panicked logic of secret trials will surely expand rather than contract domestically. A friend observes wryly that if the reasoning behind the order is that the perpetrators of mass death must be summarily executed, then there are some CEOs in the tobacco industry who ought to be trembling in their boots. Another friend who works with questions of reproductive choice observes more grimly that that is exactly the reasoning used by those who assault and murder abortion doctors.
As weeks go by, such thoughts seem not to be the subject of public debate. "There are situations when I do think you need to presume guilt over innocence," one citizen from Chattanooga told the New York Times. Conservative talk-show host Mike Reagan leads the pack in such boundlessly presumed guilt by warning that you might think the guy living next door is the most wonderful person in the world, you see him playing with his children, but in fact "he might be part of a sleeper cell that wants to blow you away." We forget, perhaps, that J. Edgar Hoover justified sabotaging Martin Luther King Jr. and the "dangerous suspects" of that era with similar sentiments. "A Communist," he said, "is not always easy to identify…. He is trained in deceit and uses cleverly camouflaged movements to conceal his real purposes…. Report your information immediately and fully to the FBI."
As an American citizen and as a lawyer, I want to just scream: This is a dangerous path. Few would argue that we be passive in the face of September 11, but what is shaping up now resembles the kind of secret global force that has created havoc in various parts of Africa and Latin America–where outfits like Executive Outcomes and other corporatized armies have been such efficient, brutal, invisible executioners. In such places, the devastation has been profound. People know nothing, so they suspect everything. Deaths are never just accidental. Every human catastrophe is also a mystery, and mysteries create ghosts, hauntings, "blowback" and ultimately new forms of terror.