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Not-So-Friendly Fire

Feb 2002

An ill wind blows from our Nation's capital. The legal measures being promoted by the Department of Justice to combat terrorism circumvent the Legislative and Judicial branches of government and threaten our Constitution by usurping powers assigned to them.

Rightly, the Department is zealous in its patriotism and zealous in its mission to prevent further terrorist attacks. This is a time for zeal. The attack on New York and Washington was an attack on America. The enormity of the wrong and the threat demands a zealous response.

The Department, however, is willing to change our system of government in order to fight terrorism. This response is outside the law and ultimately helps terrorists achieve their goal of weakening our nation.

Separation of powers is central to our system of government. It guards against the excesses that occur when one branch exercises all the powers of the State. Chief Justice Warren Burger was right to make the centrality of separation of powers the topic for the national essay contest he sponsored as part of the celebration of the Bicentennial of our Constitution.

Military Tribunals, as authorized by the President on November 13, 2001, violate the separation of powers. Under the President's Order, any foreigner suspected of being or harboring a terrorist may be detained indefinitely and designated by the President to be tried before a tribunal of military personnel. The Department of Defense decides the procedural rules, prosecutes the case and exercises the judicial power of finding the facts and declaring the law. There is no possibility of appeal to the Judicial Branch, only an appeal within the Executive Branch. Military tribunals under the Order are very unlike courts-martial. In courts-martial Congress has written the rules and a convicted defendant may appeal to the Judiciary

The Association's Committee on Military Affairs and Justice has issued a detailed report that specifies the ways in which the November 13 Order violates the Constitution. Some of the violations relate to the sweeping coverage of the Order. The person detained or to be tried before a military tribunal need not be a member of a terrorist group, need not be acting in a connection with armed conflict between states, and need not be found outside of the Untied States.

In particular, it is improper to try terrorists found in the United States before military tribunals for alleged criminal law violations. The Military Affairs Committee Report makes the distinction between the use of military tribunals at home and as incident to armed conflict abroad. The Constitution protects foreigners within the jurisdiction of the United States and not those who encounter our armed forces abroad. Once here, however, foreigners have a right to trial by jury for alleged criminal law violations.

Unless withdrawn, the Order will be with us for a long time. The need to combat terrorism will not end soon and much of the law enforcement work will be done within the United States. Under the Order, the prospect of using military tribunals to try foreigners resident in the United States will be with us for just as long. Regulations may add some due process elements, but there is no sign they will cure the central separation-of-powers flaw.

This assault on separation of powers is counterproductive and unnecessary. Terrorists, and those who intentionally aid and conspire with them, are criminals. Military tribunals are used to try enemy soldiers and agents who violate the law of war.

No good purpose is served by elevating terrorists operating in the United States to the status of enemy soldiers. If treated as soldiers by us, they will more likely be treated as soldier-heroes at home. If treated as criminals, there is no legal justification for the murders they commit.

There were successful prosecutions in the Southern District of New York in connection with the 1993 WTC bombing. In what way did that process not work? In any terrorist trial, even one before a military tribunal, it may not be possible to offer the testimony of a highly placed intelligence source from within a terrorist organization. Using a military tribunal that can convict based on hearsay evidence may "solve" this problem but creates the new problem of the loss of the constitutional right to confront one's accusers. If a middle ground is to be found, it should be done with the involvement of the Judiciary and not through a legal process from which the Judiciary is excluded.

Military tribunals are not the only issue. Conversations between attorneys and their terrorist-suspect clients are being openly monitored without court approval in the face of a statute that allows for secret monitoring with court approval. The result is to exclude the Judiciary and effectively to eliminate the Sixth Amendment right to counsel for someone who needs to share information with a lawyer that the government might use.

The Fourth Amendment has also taken some not-so-friendly fire. New regulations, which the Association's Committee on Immigration and Nationality Law has protested as a violation of the Fourth Amendment, allow an alleged immigration law violator arrested without a warrant to be detained for what the INS think is a reasonable time without being taken before a judge. Prior to the amendment, the detainee had to be presented to a judge within 24 hours. Here again there is no reason to cut the Judiciary out of the process by executive fiat. If the arrest is lawful, it will be sustained.

All members of the Bar have taken an oath to defend the Constitution. Contrary to the view of Attorney General Ashcroft that those who raise these issues are harming the nation, I can think of no more important subject for discussion and debate. We have a professional obligation to make our views known. The Association will not shirk that obligation.

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