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.