A Coup against the American Constitution

A Coup against the American Constitution
Subject: Bush's Constitutional Coup:Kangaroo Courts & Disappearances
   Date:   Sun, 18 Nov 2001 09:42:40 -0600
   From:  "Boyle, Francis" <FBOYLE@LAW.UIUC.EDU>
     To:     "Killeacle (E-mail)" <f-boyle@uiuc.edu>
A Coup against the American Constitution
An interview with Professor Francis A. Boyle<?XML:NAMESPACE PREFIX     = O />
Conducted Wednesday, November 14, 2001 by Dennis Bernstein,
 host of Flashpoints on KPFA Radio 94.1 FM – Berkeley, California
Visie Foundation.
DU in Afghanistan
 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
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