This week the United States Congress passed legislation endorsing the type of military tribunals for the detainees that President Bush had failed to accomplish with his earlier executive order. This bill gives the president wide sweeping control over the fate of current and future prisoners. It also violates the very basis of the most important document in American history, the constitution and the rulings of the Geneva Conventions.
The bill allows the president to interpret the Geneva Conventions’ standards for the treatment of war prisoners. It defines the enemy as any person who has engaged in hostilities or supported such against the United States. It allows hearsay evidence to be introduced and it states that the president can authorize aggressive interrogation methods.
It basically disregards the principals upon which the United States was based using the excuse that this country is at war and therefore different standards apply than in time of peace. However, this argument is simply not historically true. At the end of the American Civil War there was a famous judicial case called, “Ex parte Milligan”.
It was a case in which four Confederate men were to be tried by a military tribunal rather than civilian court.
The Supreme Court founded a landmark decision by protecting their civil liberties in spite of the circumstances of war. The introduction to the case reads, “A democracy, even at war, must retain its basic democratic character, or else it loses that for which its citizens fight.”
This was true 140 years ago and it is true today. The contention that this principal only applies to American citizens is the foundation upon which the Bush administration has built this house of cards.
The most appropriate passage from this famous decision sounds as though it was written as a reminder of what the constitution really stands for, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.”
The use of military tribunals has been infrequent in US history. Gen. George Washington used them during the American Revolution, as did President Lincoln during the Civil War. There was one case when President Roosevelt ordered a military tribunal for eight German prisoners accused of planning sabotage during World War II. They have been rarely and carefully used due mostly to the concerns of the Supreme Court regarding the concentration of power in the hands of just the executive branch.
In 1946, the court said that the framers of the government, “were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws.”
While tribunals can provide quick trials under the conditions of war, many legal experts believe that this occurs at the expense of fair justice. Civilian trials must be open to the public but military tribunals can be held in secret. They are comprised of three to seven judging officers who act as both judge and jury and it only takes two-thirds majority to convict when no death penalty is involved.
It is disarming to note, that Capt. John Carr, Maj. Robert Preston and Capt. Carrie Wolf all requested transfers to other assignments after being tasked to serve as prosecutors of suspected terrorists imprisoned at Guantanamo Bay.
In alleged leaked internal memos to the chief prosecutor, Capt. Carr said, “When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused. You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel.” All three of the military attorneys were given other assignments and the chief prosecutor subsequently resigned from the military.
The decisions made by a military tribunal cannot be appealed to US federal courts. The appeal is limited to a panel review of the decision but the president, as commander in chief, has the final review of all appeals.
What has happened to the concept of freedom and justice not only as envisioned by the founding fathers but as written in the US Constitution and the Bill of Rights? The humane treatment of all US prisoners, their right to a fair and speedy trial and the release of those found innocent; are the basic human rights due to all individuals regardless of their ethnic origins, religionists background, political affiliation or country of origin.
It is unfortunate that the United States’ Congress is so unfamiliar with such an important document. Perhaps, the Supreme Court will, once again, rescue the constitution before it is so trampled upon that it is unrecognizable.
— Adrienne McPhail is an American journalist. She welcomes your comments at [email protected]
