EVEN BEFORE THE INK WAS dry on the antiterrorism bill, the Bush administration began relying less on powers granted it by a cowed Congress and more on assertions of inherent presidential authority. Several new actions--the establishment of military tribunals, the monitoring of lawyer-client conversations, the interrogation of several thousand Middle Eastern men, and the continued detention of hundreds of aliens--have violated the most basic principles of the American system of justice. Namely:
* Congress must authorize actions that limit liberty. The administration has acted without congressional authorization.
* An independent judiciary must be able to review officials' actions that limit liberty. The administration's latest order seeks to prevent the civilian judiciary from reviewing either the constitutionality of the procedures or their applicability to any individual.
* Limits on liberty must apply to the narrowest possible category consistent with their purpose. The scope of limits covered by the order extends far beyond alleged international terrorists.
* Persons are innocent until proven guilty. The administration claims that terrorists are not entitled to ordinary due process--and, therefore, assumes that the government knows in advance who is culpable.
THE CONSTITUTION DOES PERMIT the use of military tribunals abroad and perhaps even for aliens apprehended in the United States--if they are properly established and carefully restricted. Indeed, in an important legal memorandum distributed on November 5 by the Heritage Foundation, the administration was warned of the need to proceed cautiously. Clearly aware that the administration was giving thought to creating tribunals, the authors of the memo analyzed existing legal precedents, pointed out that the Supreme Court has become much more protective of civil rights and civil liberties since it upheld the trial of German saboteurs by a military commission during World War II, and suggested that with congressional authorization [emphasis added] the president could try al-Qaeda terrorists in military tribunals even if they were apprehended in the United States.
Few constitutional scholars or civil libertarians would quarrel with this conclusion. Most of us would insist, however, on the right of habeas corpus in a civilian court to challenge whether a detainee was in fact an al-Qaeda terrorist. And we would assert that the trial must follow minimum due-process standards. Many would also question the wisdom of using such tribunals, which would set an unfortunate example for undemocratic nations while dissuading many democratic ones from fully cooperating with our own efforts to bring terrorists to justice. Not surprisingly, Spain declared that it would not extradite individuals to the United States unless it was assured that they would not be tried in military courts or subject to the death penalty.
IN DEFENDING HIS AUTHORITY TO issue the order, the president relied heavily on the Supreme Court decision in the German saboteurs case (ex parte Quirin). He ignored both earlier and later Supreme Court decisions that are relevant, as well as two facts about the World War II case: The Court limited the jurisdiction of the military commission to those who had violated the rules of war, and it found that Congress had specifically authorized such commissions.
Although the administration has implied that only suspected terrorists captured abroad would be subject to such trials, the order is much more sweeping than that. It covers not just alleged al-Qaeda members--whether they engage in any terrorist activity or not--but others alleged to have planned or executed acts of international terrorism targeted at people anywhere in the world, as long as American interests are at stake. And for good measure, it includes anyone who has knowingly harbored an individual who fits into either of the categories …