Bush E.O. Could Cancel Habeas Corpus
President Bush's "Executive Order" does the exact opposite of all
the things those scholars say it does. So much for legal scholars.
Look ye:
Point 1: At inauguration, President Bush took an oath to the
Constitution of the United States of America, which includes the
Bill of Rights.
Point 2: President has just signed, with all due formality and
witnesses, an order stating his intention to violate his oath of
office on multiple points in the Bill of Rights. That
declaration puts George W. Bush in treason to his oath, and he
must be impeached.
Point 3: A number of high-level political appointees have stated
their intention to abide by Bush's order. Since they also took
oaths to follow the Constitution, they are also in treason and
must be impeached.
Point 4: Every member of Congress, House and Senate, has sworn a
similar oath to the Constitution. Must they also be impeached to
remind them of their duties?
Point 5: The standard oath of every member of the US Military
includes the vow to "protect the US Constitution from all
enemies, foreign and domestic."
President Bush cannot nullify the rights of Americans: the rights
of Americans are "God given," as are the rights of all people.
George Bush has only declared himself an enemy to those rights,
in terms no one could mistake.
We may or may not have enemies in Afghanistan. We most certainly
have very dangerous enemies right down there in Washington, DC.
Now let us see who has taken his own oath seriously enough to
follow through on it.
J
----- Original Message -----
washingtonpost.com: Legal Scholars Criticize Wording Of Bush Order
From: Karolyn Martin
Sent: Tuesday, December 04, 2001 7:56 AM
Subject: Bush E.O. Could Cancel Habeas Corpus
By George Lardner Jr.
Washington Post Staff Writer
Monday, December 3, 2001; Page A10
President Bush's order empowering him to initiate military
trials for suspected foreign terrorists also appears to permit
the indefinite detention, without trial, of anyone the
president determines is "subject" to the order, according to
constitutional scholars and legal experts who have studied the
directive.
Administration officials said Bush does not intend to
designate anyone under the order that he does not think can and
should be tried before a military commission. White House
counsel Alberto R. Gonzales said in a New York Times op-ed
column Friday that those taken into custody "must be chargeable
with offenses against the international laws of war, like
targeting civilians or hiding in civilian populations and
refusing to bear arms openly."
But the Nov. 13 directive itself does not say that. It allows
the president to order the military detention of any individual
the president has "reason to believe" is or was a member of al
Qaeda or who took part in "international terrorism" directed at
the United States or who knowingly harbored such culprits.
The order then says that "if the individual is to be tried,"
he or she must be tried by a military commission using rules
and procedures to be designed by the Pentagon.
"That clearly contemplates holding people without trial," said
Harvard law professor Philip Heymann. "A person is to be
detained whether he is to be tried or not tried."
The White House says that Bush will not certify anyone to be
detained under the order unless that person has "violated a law
of war," but the murkiness of the language in the order is just
one example of what some lawyers and Senate staffers say is
exceedingly broad and careless draftsmanship.
"The order is rife with constitutional problems and riddled
with flaws," said Laurence H. Tribe, professor of
constitutional law at Harvard. He said its reach is so sweeping
that it could snap up not only terrorist leaders caught
overseas but also any resident immigrant who might have once
"knowingly harbored" a past or present member of al Qaeda or
who is "believed" to have "aided or abetted . . . acts in
preparation" for international terrorism.
Tribe pointed out that the order also contains no definition
of "international terrorism," thereby inviting arbitrary and
possibly discriminatory decisions about who is to be
tried. Bush's directive also gives the commission jurisdiction
to try people not only for violations of the laws of war but
also for all "other applicable laws."
Even if the president administers the order in limited
fashion, as administration officials have suggested, "it's
'trust me, trust me, trust me,' " a Senate Democratic staffer
protested. "That's not the way we do things."
Administration officials have spoken in terms of trials
overseas of senior al Qaeda leaders and their Taliban
collaborators -- a prospect that has met with widespread
approval.
"In order to be fully within the scope of this order, you
would have to be someone who could be tried for committing
crimes against the laws of war, meaning, an enemy belligerent
who has engaged in or supported hostilities against the United
States," Assistant Attorney General Michael Chertoff told the
Senate Judiciary Committee on Wednesday. "So that's a fairly
high standard, I would think, and it doesn't apply to people
who are in custody for garden-variety criminal offenses."
Gonzales voiced the same theme at an American Bar Association
conference on national security law Friday, dismissing as
"totally unfounded" the idea that ordinary green-card holders
could be hauled before military tribunals for "ordinary
crimes." He said the administration was after "enemy soldiers"
-- until reminded that "enemy soldiers" are entitled to the
protections of the Geneva Convention.
Gonzales amended himself to describe the quarry as "unlawful
combatants" who are not so protected.
Heymann, a former deputy U.S. attorney general, said he has
been struck by the contrast between the administration's
rhetoric and the content of the Nov. 13 order, which he said
was drafted "with an appalling carelessness."
Far from being limited to terrorist leaders captured abroad in
violation of the laws of war, Heymann said the order covers 18
million foreign-born, non-U.S. citizens living in this country,
most of them legally.
Under the order, Heymann said, "whenever the president
suspects that one of them may have been a terrorist in the
past, or is a terrorist, or has aided a terrorist, or has
harbored a terrorist," even decades ago, the president has the
power to send that person to a trial "before three colonels"
who could convict and sentence on a two-thirds vote.
Another potential problem, Heymann said, is that there is "no
law of war, at the moment, on terrorism."
Under Bush's directive, Secretary of Defense Donald
H. Rumsfeld could transfer a detainee to another government
agency for civilian prosecution. But Heymann, Tribe and
Yale-Johns Hopkins law professor Ruth Wedgwood all agreed in
interviews that the order as it stands also permits indefinite
detentions without trial.
Tribe called this "very troublesome" unless some judicial
review were provided. Wedgwood said such detentions might be
useful although they could last for a very long time. Prisoners
of war and "unprivileged combatants" are normally released when
a war ends, she said, but there may be no end to a war on
terrorism.
"This is an 'if tried' order, not a 'when tried' order,"
Wedgwood added at the ABA conference. She said it also might be
"the better part of valor" to detain top al Qaeda suspects
without trying them, at least until the conflict has subsided.
The question of judicial review offers another contrast
between what the order says and what it has been construed to
mean. Borrowing the words of a 1942 proclamation issued by
President Franklin D. Roosevelt in the case of eight Nazi
saboteurs, Bush has decreed that anyone covered by his order
"shall not be privileged to seek any remedy" in any court here
or abroad.
In the Nazis' case, the Supreme Court nonetheless agreed to
review the saboteurs' habeas corpus petition challenging their
military trial -- and rejected it, holding their prosecution to
be constitutional. Gonzales shorthands this by saying that "the
[Bush] order preserves judicial review in civilian courts" for
anyone arrested or detained in the United States even though
the order itself, like Roosevelt's, says the opposite.
Responding to complaints that Bush's order would permit loose
rules of evidence, lax standards of proof and less than
unanimous verdicts, White House and Justice Department
officials are now calling the directive "a first step" and
saying the Pentagon might come out with rules more favorable to
defendants. Gonzales has also said that nothing in Bush's order
requires secret trials, and he has hinted that only portions of
the proceedings may have to be closed to protect classified
information.
Despite such possible concessions, Tribe and others say
Congress has to step in. Appealing to courts, Tribe said, won't
work because the judiciary has always been "extremely
deferential to the executive in cases of arguable military
emergencies" and anyone who relies on the current Supreme Court
for relief is "whistling in the wind."
Instead of appealing to the international community for
support, Tribe said, Bush's order presents a face that says "
'I am the president and if I suspect someone of being a
terrorist, no one can interfere.' It sounds like an assertion
of dictatorial power, more than it can possibly be. It would be
a favor to the president to have Congress authorize some
limited use of military tribunals and give it the legal force
the president wants it to have. If it is circumscribed by the
Pentagon, that is really floating on thin ice."
© 2001 The Washington Post Company
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