Subj: Re: [Fwd: Bush Order: Terror Trials by Military
Date: 11/19/01 1:05:05 PM Pacific Standard Time

Dear Kent,

Well, it appears that the President is reserving for himself the power
to determine who will be tried in this forum.  His presidential counsel
was relying not only upon the Lincoln precedent (which was ruled
unconstitutional after the Civil War was over) but also upon FDR's use
of a similar system to deal with saboteurs in World War II (I am not
aware of any court challenges to those convictions and there probably
were none, as there was no constituency for Nazi saboteurs in this
country at the time, not even the ACLU).  The system will only apply to
non-citizens, but the point is still the same:  ANY weakening in
fundamental civil liberties is a bad thing for America and American
citizens; once a rationale is provided for taking away liberties by
executive order, it is just another step down a slippery slope to start
issuing executive orders as to American citizens.  Furthermore, it is
constitutionally prohibited for the Executive Branch of government to
abrogate, prescribe or define the jurisdiction of the American courts,
which is expressly defined by Constitution in certain respects and is
left to Congress to define in all other respects.  Nowhere in the
Constitution does it provide that the President is to have any hand in
defining jurisdiction except by signing bills sent to him by Congress.
In no event was it ever contemplated or implied that the President could
alter or create federal court jurisdiction by unilateral fiat as the
President has attempted to do in this instance.  It is patently illegal,
and represents an unconscionable power grab by the President, exploiting
this emergency to expand his powers to those of a dictator or king.
This is a naked violation of the Separation of Powers Clause as well as
the Fifth Amendment guaranty of judicial Due Process.

Besides the legal objections, it is extremely unwise to present
ourselves to the world as setting up military kangaroo courts to try
terrorists, leaving the ineluctable impression abroad, particularly in
the Islamic countries which we hope to win over from extremism, that we
are condemning the defendants in advance by sending them to the modern
equivalent of the Star Chamber or a communist show trial.  This is so
contrary to the American system and our way of doing things, so
inconsistent with our principles and values, that it will create
cynicism about our means and motives as well as undying enmity against
our people and institutions.  This is a stupid, heavy-handed and
wrong-headed tactic, quite apart from it being a betrayal of our

When this is combined with the new edict about the government being able
to eavesdrop on attorney-client conversations in terrorist cases, which
is likewise clearly an unconstitutional violation of the Sixth Amendment
guaranty of the right to representation by counsel, it appears that the
President and his too willing Attorney General John Ashcroft have set
our nation upon the path to tyranny, all the while disguising their
motives with the customary mantra about national security.  This is
wrong and it should be stopped.  There must be lawsuits, demonstrations
and editorials.  There must not be acquiescence in this seditious attack
on our rule of law by the White House.

The President is a man devoid of principle (as all presidents have been
in recent years), who too easily resorts to such measures suggested to
him by those around him who would like to destroy all opposition through
the unilateral exercise of power so long as the people are lulled into
believing it necessary to fight terrorism.  This is how tyranny will
come to America, not by communist conquest or Islamic blackmail and
terror, but by the invocation of good intentions and efficiency.  If we
let these measures be implemented without opposition, one can only
imagine what "efficiencies" will follow.

I support the military actions against terrorism, as I feel whatever
brought us to this pass, we cannot allow ourselves to be murdered en
masse without striking out to destroy those who did it.  But that
support does not extend to repressive, unconstitutional measures such as
those discussed above.