Nearly 30 years ago, Arthur Schlesinger characterized Richard Nixon’s administration as the “Imperial Presidency.” George W. Bush has revived the concept, wrapping himself in the red, white and blue, as he strides forward, claiming new territory at every step.
With every stride, Bush has stepped on the separation of powers defined in the Constitution. He has usurped judicial power by decreeing, without any consultation with the legislative branch, the establishment of military tribunals. He is surely heir not only to Richard Nixon, but also to King George III of England.
In the hysteria following the tragedies of the Sept. 11 attacks, the Bush administration pushed a draconian measure into law. Congress passed, almost unanimously, the USA Patriot Act, granting the FBI expanded powers, including surveillance of conversations between defendants and their attorneys, heretofore confidential and protected.
On Nov. 13 President Bush, claiming “extraordinary emergency” issued a directive empowering him to order military trials for “suspected international terrorists and their collaborators.”
Even arch-conservative William Safire took issue with such extraordinary powers. The Bush tribunals exceed established military courts with their secret proceedings, verdicts, sentencing, including the death penalty, to be decided by only a two-thirds majority, and no appeal; the established military courts stipulate public trials, proof beyond reasonable doubt, the right of the accused to choose counsel, unanimity, should the death sentence be under consideration, and finally, appellate review by civilians confirmed by the Senate.
Civil liberties groups as diverse as the Center for Constitutional Rights (CCR) and the conservative Cato Institute have spoken out against the order creating the tribunals.
According to Timothy Lynch, head of the Cato Institute’s criminal justice program, “If the president can suspend one constitutional principle today … he can suspend others tomorrow.” The Cato Institute is expected to take part as a friend of the court in the suits challenging the military tribunals .
Bill Goodman, legal director of the CCR, founded in the 1960s to provide legal help to civil rights protesters, said his group is planning to challenge the order along with the lawyers representing some of the detained men. Steven R. Shapiro, legal director of the American Civil Liberties Union, called the president’s establishment of military tribunals an attempt to make law and, as such, an infringement on the Constitutional powers invested in the legislative branch of government.
The Bush administration’s hunt for terrorists began immediately after the Sept. 11 attacks. Terrorists were defined as Arab and/or Muslim – or Sikh, or Hindu – anyone from the Middle East or South Asia. This amounts to state-sponsored racism.
Attorney General John Ashcroft has detained over 1,100 immigrants who fell into three categories: material witnesses (out of the 1,100, there were 15 or fewer in this category); visa regulation violators; and suspects of felonies or misdemeanors totally unrelated to the attacks.
When a breakdown of the 548 people detained on immigration charges was finally released it showed the majority – over 400 – came from the Middle East and South Asia.
Of those detained and charged with federal criminal violations, they were held for such crimes as “fraudulent statements, conspiracy to embezzle, document fraud, perjury, false claim to U.S. citizenship” and the like. None of the names of those detained were released until news of the detentions finally reached the press.
Those might be charges on which one ought to be arrested; it is, however, another matter to hold an individual without allowing him or her contact with an attorney or his or her embassy.
When questioned, Ashcroft defended these measures saying that terrorists did not deserve justice. He also recently testified before the Senate that anyone who questions his tactics to fight terrorism is helping the terrorists.
There is more: not content to detain only those he could trap even with flimsy pretexts, Ashcroft has determined that 5,000 young non-citizens – again largely Muslims, Arabs and others from the Middle East and South Asia – needed to be questioned. The names of the young men between the ages of 18 and 35 who have received visas since Jan. 1, 2000, have been forwarded to all U.S. Attorneys.
The reaction throughout the country has been mixed. In Michigan, where there is a large Middle Eastern and South Asian population, law enforcement officials are sending letters to hundreds asking them to call for appointments to discuss the Sept. 11 attacks. However, the department of safety of the University of Michigan has declined to cooperate with the FBI in the interviewing of foreign students or those here on temporary visas.
In Oregon, the law enforcement agencies in three cities refused to call in residents for the “voluntary” interviews. The police chief of Eugene said his department would be willing to cooperate with federal officials but only if the interviews were modified to avoid racial profiling.
Portland’s acting police chief had earlier said that to interview immigrants would violate a state law that prevents the department’s maintaining records on anyone not connected to criminal investigations. He was contradicted, however, by Oregon Attorney General Hardy Myers, who denied the interviews would conflict with state law.
The city of Cornwallis declined to conduct the interviews on the grounds that the city would better spend its resources in pursuing criminal suspects.
Ashcroft now seeks to free the FBI from restrictions which prevent it from investigating religious or political groups. These restrictions came about after the FBI’s COINTEL program activities were revealed. Former FBI chief J. Edgar Hoover had directed the spying campaign on anti-war groups, the Black Panthers, the American Indian Movement, the Communist Party and even on Martin Luther King, among others, during the ‘60s.
Something terrible happened on Sept. 11, but we must not be blinded by Bush’s flag-waving or deafened by his calls to war. Our civil liberties are too important. Let’s remember our country’s revolutionary heritage, with Thomas Jefferson’s maxim that “the price of liberty is eternal vigilance.”
Julia Lutsky is a reader in New York and Terrie Albano is associate editor of the People’s Weekly World.