Military Courts: Part of a Constitutional Coup
By Professor Francis Boyle, Professor, International Law, University of Illinois College of Law.
This executive order must be considered within the context of the massive assault that we have seen inflicted on the U.S. Constitution by the Bush administration and its Federalist Society lawyers, such as Ashcroft, Gonzales and their staff.
Since September 11, we have seen one blow against the Constitution after another.
This is one of the more outrageous and dangerous. It applies both to alleged terrorist suspects here in the U.S., who are not U.S. citizens and, also, abroad. As for those here in the U.S., clearly aliens here are entitled to the protections of the Due Process clause of the Fifth Amendment to the U.S. Constitution, as well as to the Article III (Section 2, Clause 3) basic constitutional rights in criminal cases, including indictment, trial before a Federal District judge or jury, [rights relating to] venue and things of that nature. It would take me an entire law review article to go through all the problems with this executive order.
Moreover, there is the International Covenant on Civil and Political Rights, to which the U.S. Government is a party. It's a treaty and it, again, affords basic due process protections to everyone in the U.S., irrespective of their citizenship.
As for the applicability to alleged al Qaeda members, or even former al Qaeda members, in Afghanistan, [there is] an even more serious problem there. The third and fourth Geneva Conventions of 1949, clearly apply to our conflict now with Afghanistan. These alleged al Qaeda members would be protected either by the third Geneva Convention (if they are fighters incorporated into the army there in Afghanistan), or by the fourth Geneva Convention (if they are deemed to be civilians). Both conventions have very extensive procedural protections on trials that must be adhered to. Trials can happen, but there are very extensive rules and protections. Basic requirements of due process of law, set forth in both of these treaties, must be applied. [Failures] to apply these treaties would constitute war crimes.
This executive order is also extremely dangerous, because it is basically saying to the Taliban government and to al Qaeda: We are not going to give you the protections of the Geneva Conventions guarantees on trials. That means they could engage in reprisals against captured members of the U.S. Armed Forces. We are exposing them to similar, summary trial, in secret, subject to the death penalty.
If you add up everything that Ashcroft, Bush, Gonzales and their coterie of Federalist Society lawyers have done here, what we've seen, since September 11, is a coup d'etat against the U.S. constitution. There's no question about it. Really what we're seeing now is a constitutional coup d'etat. There's no other word for it.
The important point to keep in mind is that the president and secretary of defense are bound by the third and fourth Geneva Conventions for anyone over in Afghanistan or Pakistan. They have no discretion there.
As for in the U.S., they are bound by the Constitution and the Bill of Rights, and they are bound by the International Covenant on Civil and Political Rights. There is no exception that the president can unilaterally announce ipse dixit. That's exactly what this executive order is attempting to do.
It's like we're becoming a banana republic, with disappeared people, which was the phenomenon that we all saw in Latin American dictatorships in the 1970s and 1980s, with the support of the U.S. government. Upwards of 1,100 aliens, Arabs, Muslims, have just disappeared in the U.S. [Editor's Note: The number of disappeared is rising. By November 30, 1,200 were missing.] We don't know where they are or the conditions under which they are being held. We have no idea whether they have access to attorneys. We know one of them died, under highly suspicious circumstances, while in custody. There have been reports that he was tortured to death.
The phenomenon of disappearance is considered a crime against humanity [by] the International Criminal Court. This is very dangerous.
The critical question is: When will the FBI, the CIA and the National Security Agency start to turn these powers, that they have under the Ashcroft police state bill, against American citizens? Clearly, that will be the next step.
Source: Interview, November 14, 2001 by Dennis Bernstein (host of Flash-points), KPFA Radio 94.1 FM Berkeley, California.