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Jewish World Review Dec. 3, 2001 / 18 Kislev, 5762

Nat Hentoff

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Dismantling the Constitution -- SUPREME COURT JUSTICE Robert Jackson was also the chief American prosecutor at the Nuremberg trials. Earlier, before he was appointed to the Supreme Court, Jackson had been Attorney General of the United States. "Government power in wartime," he wrote, "is usually exercised in haste and excitement when calm legislative consideration is difficult. It is exercised in a time of patriotic fervor that makes moderation unpopular."

While President Bush has been commendably firm and reasonably calm in conducting the war on terrorism abroad, he and his attorney general, John Ashcroft, have been exemplifying Robert Jackson's warning and -- another of his observations -- that our system of government is most dangerous in wartime. Even more dangerous is that this administration's more recent dismantling of our constitutional rights, like the separation of powers -- particularly right now, with regard to Congress -- is being rushed through.

As a Newsday editorial of Nov. 18 said of the president: "By unilaterally clearing the way (for military tribunals to prosecute suspected terrorists), he has in one stroke moved to put Congress, the courts and the public on the sidelines during what could be one of history's sternest tests of the United States as a nation of laws."

The Wall Street Journal, on the other hand, has derisively characterized critics of the Bush military tribunals, which will permit no appeals to American courts, including the Supreme Court -- as "couch-potato civil libertarians." Appeals can be directed only to the president and the secretary of defense. Yet, Congressman Bob Barr, who hardly fits The Wall Street Journal's caricature -- and who signed Ashcroft's anti-terrorism bill -- says of the president's further limiting of due process and other basic liberties:

"These changes are so vast and fundamental, the House must hold hearings in the very near future before we adjourn for the year." Without congressional and judicial review, Barr adds, what the administration is doing to the Constitution in this time of patriotic fervor "will likely set precedents that will come back to haunt us terribly."

Yet, on the front page of The New York Times' "Week in Review" of Nov. 18, George Washington University Law School professor Jeffrey Rosen, who is also legal affairs editor of The New Republic, magisterially assures us that in all of these anti-terrorism courses of action, "America hasn't yet come close to abandoning any immutable principles of its national institutions." Earlier in the article, he had cited "American constitutionalism" as the foundation of those institutions.

A particularly pertinent response to those who urge civil libertarians to calm down is not from an academic but in a letter by an alert citizen, Holly Gaudreau of San Francisco, to The New York Times:

"How do we actually determine whether certain individuals are terrorists without a fair judicial process based on our Constitution?"

The Bush military tribunal trials will be private, with no juries, and the defendant will not have his or her choice of a lawyer. The defendants will be noncitizens, but they can include longtime legal immigrants who are residents of the United States. The evidence against them will include hearsay -- rumors and other unverified information about which a witness has no personal knowledge. And if a death sentence is imposed, it will be enough for two-thirds of the military officers presiding to agree. (Even in a court martial, there must be a unanimous vote for capital punishment.) And the standard of proof will be "below a reasonable doubt."

These are by no means the only "immutable principles" of our system of justice -- and our identity as a nation -- that are being eviscerated by the president. Consider that more than a thousand people are being held secretly in detention without their names or the charges against them being released -- while their families and sometimes their lawyers have no idea about the prisons they are being transferred to. The Nov. 17 issue of The Economist, not a notably liberal publication, reports:

"An affidavit from the FBI, saying it is unable to rule out the possibility of links to the (terrorist) attacks, has been widely applied to keep people in custody who have not been charged with such links. Some lawyers claim that this inverts the normal requirement of the law (by) demanding that the defendants prove a negative to secure release."

Another citizen, Patrick Downes of Watertown, Mass., said in a Nov. 18 letter to Newsday: "It would serve Bush well to be reminded of the fact that he was elected president, not crowned as a monarch." It is Bush who selects defendants for the military tribunals on his own "reason to believe" they should be tried. This is the American way?

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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