[iwar] [fc:A.Coup.against.the.American.Constitution]

From: Fred Cohen (fc@all.net)
Date: 2001-11-25 21:22:39
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Subject: [iwar] [fc:A.Coup.against.the.American.Constitution]
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                   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.
      _________________________________________________________________

    Francis A. Boyle
    Law Building
    504 E. Pennsylvania Ave.
    Champaign, IL 61820 USA
    217-333-7954(voice)
    217-244-1478(fax)
    <a href="mailto:fboyle@law.uiuc.edu?Subject=Re:%20(ai)%20A%20Coup%20against%20the%20Constitution:%20interview%20with%20Professor	Francis%20A.%20Boyle%2526In-Reply-To=%2526lt;B81E8C54.1CE37%25rforno@infowarrior.org">fboyle@law.uiuc.edu</a>

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