In the wake of the terrorist attacks, our democratic values, institutions and representatives are being tested. This became clear most starkly when President George W. Bush — without consulting the legislature, the judicial branch or even the public in advance — issued his sweeping military order to establish secret “military tribunals” to try suspected terrorists.
We’re putting “tribunals” in quotation marks because, as the order reads, these military commissions would not in the least resemble a judicial tribunal as we know it.
In violation of international law and domestic due process principles, a non-citizen civilian detained in the United States could be subject to a secret “trial” and sentenced to death without any presumption of innocence, right of confrontation, right to a jury, right to choose his or her own counsel, or avenue for appeal or other review of the ultimate penalty. The death penalty could be imposed without any unanimous finding of guilt beyond a reasonable doubt.
Under Bush’s order, the sole authority to decide who would be subject to this “process” is the president himself — again, with no review by or input from any other branch of government. Our Constitution enshrines the separation of powers and due process, and Bush’s hasty, broad and unilateral military order undermines our cherished tradition of thoughtful, open and democratic deliberation.
Because of these fundamental flaws, any proceedings in front of the proposed military commissions would also lack legitimacy internationally and would threaten our ability to protest due process violations by other countries. Indeed, the possibility of secret military commissions has already thrown a wrench into our efforts to bring al Qaeda members to justice –European countries have expressed their reluctance to extradite suspects to the United States.
The rhetoric of the Bush administration in defense of the order creates the perception, without substantiation, that our regular civil and military courts are inadequate for trying al Qaeda leaders. It urges us to believe that we must instead sacrifice revered constitutional values and institutions, despite the fact that our Article III courts have successfully tried terrorists before. Promoting a public loss of faith in the administration of justice in our country risks domestic and international consequences broader and deeper than we can imagine.
In response to these arguments, Bush and Attorney General John Ashcroft defensively assure us that we need not worry. They give us their word, through statements and newspaper columns, that the military order does not really mean what it says about scope, procedure and appellate review. Those of us who prefer to entrust the protection of rights and the rule of law to tested institutions are now branded un-American for expressing concern.
Throughout history, demagogues and dictators have sought to silence debate by inflaming public opinion against their critics, yet consistently their tactics have been condemned in retrospect. Rather than name calling and empty assurances now, we need honest, open deliberation and a strong commitment to our fundamental values.
We keep hearing that we should continue to live our lives as we did before the terrorist attacks because the attacks aimed to threaten our way of life. We are told that if we fail to do this, the terrorists win. The same is true with regard to the structure of our democratic society and our commitment to the rule of law. At a most difficult time in our national history we have nothing to gain by throwing the Constitution out the window — and everything to lose.
Cecily Baskir and Tania Galloni are third-year students at the Yale Law School.