A Coup Against the American Constitution
by Dennis Bernstein
A Coup against the American Constitution
An interview with Professor Francis A. Boyle
Conducted Wednesday, November 14, 2001 by Dennis Bernstein
host of Flashpoints on KPFA Radio 94.1 FM, Berkeley, California
Dennis Bernstein: You re listening to Flashpoints, on KPFA. This is Dennis
Bernstein.
George W. Bush declared an extraordinary emergency yesterday that empowers
him to order military trials for suspected international terrorists and
their collaborators, bypassing the American criminal justice system, its
rules of evidence and its constitutional guarantees. The presidential
directive, signed by Bush as commander-in-chief, applies to non-U.S.
citizens arrested in the United States or abroad.
Joining us to talk about this extraordinary measure is Professor Francis
Boyle. He is a professor of international law at the University of Illinois
College of Law, in Champaign. I want to thank you for joining us, again, on
Flashpoints.
Francis Boyle: Thank you, Dennis. I'm always happy to be on your show and
your station, and I hope things go well in your meetings with Pacifica.
It's a great station and it really needs to be kept on the air and going the
way it's going.
Bernstein: Thank you very much.
Now, secret courts, military tribunals give us, first of all, your sense of
what the implication is of this, maybe describe what you understand can
happen.
Boyle: First, this executive order must be considered within the context of
the massive assault that we have seen inflicted on the United States
Constitution by the Bush administration and its Federalist Society lawyers,
such as Ashcroft, Gonzales and their staff. We've discussed the Federalist
Society on your station before, I think.
Since September 11th, we have seen one blow against the Constitution after
another, after another. Recently, we ve had Ashcroft saying that he had,
unilaterally, instituted monitoring of attorney-client communications
without even informing anyone he just went ahead and did it, despite the
Fourth Amendment ban on unreasonable searches and seizures without warrant
and the Sixth Amendment right to representation by counsel.
I won't go through all the [recently promulgated] measures here, but this is
one of the more outrageous and dangerous. As you correctly point out, it
applies both to alleged terrorist suspects here in the United States, who
are not U.S. citizens and, also, abroad. We have to consider that
separately. As for those here in the United States, clearly aliens here are
entitled to the protections of the Due Process clause of the Fifth Amendment
to the United States Constitution, as well as to the Article III (Section 2,
Clause 3) basic constitutional rights in criminal cases, including
indictment, trial before a Federal District judge or jury, [rights relating
to] venue and things of that nature. It would take me an entire law review
article to go through all the problems with this executive order.
Moreover, there is the International Covenant on Civil and Political Rights,
to which the United States Government is a party. It's a treaty and it,
again, affords basic due process protections to everyone here in the United
States, irrespective of their citizenship.
As for the applicability to alleged al Qaeda members, or even former al
Qaeda members, over in Afghanistan, [there is] an even more serious problem
there. The third and fourth Geneva Conventions, of 1949, clearly apply to
our conflict now with Afghanistan. These alleged al Qaeda members would be
protected either by the third Geneva Convention (if they are fighters
incorporated into the army there in Afghanistan), or by the fourth Geneva
Convention (if they are deemed to be civilians). Both conventions have very
extensive procedural protections on trials that must be adhered to. This is
not to say that a trial cannot happen. It can happen, but there are very
extensive rules and protections. Basic requirements of due process of law,
set forth in both of these treaties, must be applied, under these
circumstances. [Failures] to apply these treaties would constitute war
crimes.
Second is the question of reprisals. This executive order is extremely
dangerous, because what it is basically saying to the Taliban government and
to al Qaeda is, We are not going to give you the protections of either the
third or fourth Geneva Conventions guarantees on trials. What that means is
that they could engage in reprisals against captured members of the United
States Armed Forces. As you know, we have soldiers on the ground, now
Special Forces in Afghanistan and we also have pilots flying over
Afghanistan. Any of them could be captured by the Taliban government, by al
Qaeda.
If a U.S. military [person] were to be captured, clearly, he or she would be
entitled to all the benefits and protections of the third Geneva Convention,
on prisoners of war. But the problem now is that President Bush has
basically said, openly, publicly and officially, that we are not going to
give prisoner-of-war benefits, or fourth Geneva Convention civilian
benefits, to al Qaeda members, to former al Qaeda members, or to those who
have sheltered, harbored or assisted them. That opens us up for reprisals.
It opens up our own armed forces to be denied prisoner-of-war treatment.
So, what we re doing here is exposing them to a similar type of treatment,
which would be a summary trial, in secret, subject to the death penalty.
Bernstein: Let me jump in here, Professor Boyle.
According to the presidential directive, the president himself will decide
which defendants will be tried by military tribunals and Defense Secretary
Donald Rumsfeld will appoint each panel and set its rules and procedures,
including the level of proof needed for conviction. This sounds almost like
sort of a quiet coup.
Boyle: Clearly. What we ve seen, since September 11th, if you add up
everything that Ashcroft, Bush, Gonzales and their coterie of Federalist
Society lawyers have done here, is a coup d'etat against the United States
Constitution. There's no question about it.
When you add in the Ashcroft police state bill that was passed by Congress
(and several members of Congress admitted, We never even read this thing
when we voted for it.) that's really what we're seeing now, Dennis, a
constitutional coup d'etat. There's no other word for it.
Bernstein: What are the implications when the president and the secretary
of defense decide who will be the defendants and what the necessary level of
truth will be? I mean, it's hard to imagine how that would work.
Boyle: This is really like the old Star Chamber proceedings, in the British
Empire, where someone accused of treason would be called before a chamber in
quiet, in secrecy. (It was called the Star Chamber because there were stars
on the [ceiling]). There would be a summary hearing and the person would be
sentenced to death. That was that.
The important point to keep in mind is that the president and secretary of
defense are bound by the third and fourth Geneva Conventions for anyone over
in Afghanistan or Pakistan. They have no discretion there.
As for here, in the United States, they are bound by the Constitution and
the Bill of Rights, and they are bound by the International Covenant on
Civil and Political Rights. There is no exception that the president can
unilaterally announce ipse dixit. That's exactly what this executive order
you can read about it in today s New York Times is attempting to do.
Bernstein: It is, obviously, very concerning to Arab-Americans, to people
on visas, with green cards. We now have a thousand people in custody.
Ashcroft is talking about five thousand more that they want to take into
custody. These are all people that could be tried secretly and convicted
without [any] evidence that we would know anything about.
Boyle: That is correct. It's like we re becoming a banana republic here in
the United States, with disappeared people, which was the phenomenon that we
all saw down in Latin American dictatorships in the 1970s and 1980s, with
the support, by the way, of the United States Government. The latest figure
I've read is upwards of eleven hundred aliens, Arabs, Muslims, who have just
disappeared somewhere. We don't know where they are or the conditions under
which they are being held. We have no idea whether they have access to
attorneys. We do know one of them died, under highly suspicious
circumstances, while in custody. There have been reports that he was
tortured to death.
I should point out that the phenomenon of disappearance is considered a
crime against humanity [by] the International Criminal Court. This is very
dangerous.
The critical question is: When will the FBI, the CIA and the National
Security Agency start to turn these powers, that they have under the
Ashcroft police state bill, against American citizens? Clearly, that will
be the next step.
Bernstein: Well. We have been speaking with Professor Francis Boyle. He
is a professor of international law at the University of Illinois College of
Law, in Champaign, Illinois. We thank you.
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