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SPECIAL OF
THE DAY:
RIGHTS 'N RHETORIC
By Judith Haney
USNEWSLINK/November 17, 2001
Never have so many said so
much about something they know so little about as the recent spate of
"journalists", "pundits", TV anchors, stand up comics, cab drivers,
politicians, kids, rightniks, leftniks, moderates, radio jocks, athletes, and everyone in
between, on the subject of "civil liberties" and "civil rights".
Whew!
Actually, I have rather
enjoyed all the spinning, spitting, swearing, spearing, stoning, and snickering, over the
manner in which poor ol' John Ashcroft has been abused and mistreated over his assigned
role by President Bush to limit civil rights and civil liberties of suspected terrorists.
It's not that I don't like
General Ashcroft. In fact, I think he's a rather imposing figure of a man when he's not
trying to convert every man, woman, and child to Christianity. But that's a subject left
for another day. (Read: John Ashcroft's
Religiosity)
I'm enjoying this flurry of flowing flux over 'rights' because I think pious people in
positions of power should occasionally "learn" humility. This is General
Ashcroft's "lesson" but, in this case, an un-deserved one since he is only
carrying out his constitutional responsibilities to follow the orders of the Commander in
Chief, President Bush.
So, I'm taking my turn at bat
to "set everyone straight" on the subject of "rights".
I was motivated to write this
piece after reading geriatric journalist Helen Thomas' opinion, "President
Bush and John Ashcroft trample the Bill of Rights". Notice that this piece is
Helen's 'opinion'. The reason it is Helen's 'opinion' is because it is not
'journalism' predicated upon verifiable facts.
Helen's piece is a biased,
opinionated, rhetorical bit of reasoning which should be taken and left at the reader's
discretion. I choose to leave it because Helen used her credibility as a journalist to
opportunistically bash the Bush administration while omitting essential facts in support
of her thesis.
Herewith are the facts vis a
vis the Bill of Rights and military tribunals:
The
following is a transcription of the first 10 amendments to the United States Constitution.
Called the "Bill of Rights", these amendments were ratified on December 15,
1791.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according to the rules of the common
law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.
The following is an
overview of the manner in which military tribunals differ from trials in domestic courts
of law.
A military trial of someone accused of terrorism would
include lawyers, jurors and a judge but similarities to a typical courtroom would end
there.
The White House framework for a military
tribunal is based on tribunals used by the United States during more traditional wars.
The president would decide who came before a
military court and many of the particulars of a trial would be up to him and the defense
secretary.
For example, it is not clear whether the government would have to prove guilt beyond a
reasonable doubt, the burden prosecutors must meet in an ordinary criminal court.
Rules about what evidence can be used at trial
would be looser than in a regular court. At the least, prosecutors would be able to use
hearsay statements.
The government also would likely be able to use
material collected through searches or wiretaps that would be unconstitutional if used
against a U.S. citizen in a criminal court.
The right to appeal a conviction or sentence
would be curtailed or eliminated, unless the U.S. Supreme Court became involved.
A military tribunal could have one judge and a
panel of officers sitting as a jury, on the model of a traditional court-martial. It could
have a panel of judges acting as both judge and jury. Judges probably would come from the
existing military justice system but could include civilian judges invited by Bush.
A terrorist trial would not be on television
but likely take place on a military base, under heavy security and the public might not
even know about the trial until it was over.
The United States last used a military tribunal
to try German saboteurs who sneaked ashore in New York state and Florida in 1942. The
trial was secret and conviction and execution for six saboteurs was swift. The Supreme
Court upheld the proceeding but under terms legal experts say might not protect the White
House from a constitutional challenge now.
Contrary to recent rhetorical analysis of President Bush's decision to try
terrorists in military tribunals, at home or abroad, the fact remains, citizens of the
United States are protected under the Bill of Rights.
Non-citizen terrorists who commit
atrocities and war crimes against American citizens, within or without the border of the
United States, are not protected under the Bill of Rights unless and until the U.S.
Supreme Court rules otherwise.
Non-citizen terrorists are war criminals.
And a study of 20th century military history clearly indicates that a military tribunal is
the preferred venue to try people for war crimes and atrocities committed against American
citizens.
The question remaining to be answered is:
what legal entity has standing to bring charges against suspects. This issue is ambiguous,
subject to interpretation, and should be immediately resolved in order to assuage the
public's mounting concerns. In this vein, President Bush should enlarge his order vis a
vis who will be tried in military tribunals. He should clarify the order and obtain a
consensus among key Congressional leaders at his earliest convenience.
Presently the cases against terrorists are
being investigated by state, federal, and military law enforcement agencies. By necessity
the cases and evidence will ultimately be merged into one prosecution.
The military tribunal concept is useful
for the purpose of merging and prosecuting these cases under one legal authority. It makes
sense, it serves a purpose, and it gets the job done without delays that bear the
potential of undermining the safety and security of our country's intelligence system. And
further, it avoids burdening the state and federal court system which is already stretched
to the breaking point.
The venue of how, where, and when
to try non-citizen terrorists for war crimes may ultimately be resolved in the U.S.
Supreme Court. But until it is otherwise resolved, the power to decide rests with
President Bush and he has delegated the responsibility to the Pentagon to
"manage" the trials and write the rules of the tribunal.
Bush has made his decision, announced it to the world, and required U.S. Attorney General
John Ashcroft, the Secretary of Defense, and other government representatives and
officials to carry out his order. And that is where it stands, until otherwise decided by
a higher authority, i.e., the U.S. Supreme Court. |
