Bush E.O. Could Cancel Habeas Corpus

President Bush's "Executive Order" does the exact opposite of all
the things those scholars say it does.  So much for legal scholars.

Look ye:

Point 1: At inauguration, President Bush took an oath to the
Constitution of the United States of America, which includes the
Bill of Rights.

Point 2: President has just signed, with all due formality and
witnesses, an order stating his intention to violate his oath of
office on multiple points in the Bill of Rights.  That
declaration puts George W. Bush in treason to his oath, and he
must be impeached.

Point 3: A number of high-level political appointees have stated
their intention to abide by Bush's order.  Since they also took
oaths to follow the Constitution, they are also in treason and
must be impeached.

Point 4: Every member of Congress, House and Senate, has sworn a
similar oath to the Constitution.  Must they also be impeached to
remind them of their duties?

Point 5: The standard oath of every member of the US Military
includes the vow to "protect the US Constitution from all
enemies, foreign and domestic."

President Bush cannot nullify the rights of Americans: the rights
of Americans are "God given," as are the rights of all people.  
George Bush has only declared himself an enemy to those rights,  
in terms no one could mistake.

We may or may not have enemies in Afghanistan.  We most certainly
have very dangerous enemies right down there in Washington, DC.

Now let us see who has taken his own oath seriously enough to
follow through on it.

J

----- Original Message ----- 
 washingtonpost.com: Legal Scholars Criticize Wording Of Bush Order
 From: Karolyn Martin 
 Sent: Tuesday, December 04, 2001 7:56 AM
 Subject: Bush E.O. Could Cancel Habeas Corpus

 By George Lardner Jr.
 Washington Post Staff Writer
 Monday, December 3, 2001; Page A10 

 President Bush's order empowering him to initiate military
 trials for suspected foreign terrorists also appears to permit
 the indefinite detention, without trial, of anyone the
 president determines is "subject" to the order, according to
 constitutional scholars and legal experts who have studied the
 directive.

    Administration officials said Bush does not intend to
 designate anyone under the order that he does not think can and
 should be tried before a military commission. White House
 counsel Alberto R. Gonzales said in a New York Times op-ed
 column Friday that those taken into custody "must be chargeable
 with offenses against the international laws of war, like
 targeting civilians or hiding in civilian populations and
 refusing to bear arms openly."

    But the Nov. 13 directive itself does not say that. It allows
 the president to order the military detention of any individual
 the president has "reason to believe" is or was a member of al
 Qaeda or who took part in "international terrorism" directed at
 the United States or who knowingly harbored such culprits.

   The order then says that "if the individual is to be tried,"
 he or she must be tried by a military commission using rules
 and procedures to be designed by the Pentagon.

    "That clearly contemplates holding people without trial," said
 Harvard law professor Philip Heymann. "A person is to be
 detained whether he is to be tried or not tried."

    The White House says that Bush will not certify anyone to be
 detained under the order unless that person has "violated a law
 of war," but the murkiness of the language in the order is just
 one example of what some lawyers and Senate staffers say is
 exceedingly broad and careless draftsmanship.

    "The order is rife with constitutional problems and riddled
 with flaws," said Laurence H. Tribe, professor of
 constitutional law at Harvard. He said its reach is so sweeping
 that it could snap up not only terrorist leaders caught
 overseas but also any resident immigrant who might have once
 "knowingly harbored" a past or present member of al Qaeda or
 who is "believed" to have "aided or abetted . . . acts in
 preparation" for international terrorism.

    Tribe pointed out that the order also contains no definition
 of "international terrorism," thereby inviting arbitrary and
 possibly discriminatory decisions about who is to be
 tried. Bush's directive also gives the commission jurisdiction
 to try people not only for violations of the laws of war but
 also for all "other applicable laws."

    Even if the president administers the order in limited
 fashion, as administration officials have suggested, "it's
 'trust me, trust me, trust me,' " a Senate Democratic staffer
 protested. "That's not the way we do things."

    Administration officials have spoken in terms of trials
 overseas of senior al Qaeda leaders and their Taliban
 collaborators -- a prospect that has met with widespread
 approval.

    "In order to be fully within the scope of this order, you
 would have to be someone who could be tried for committing
 crimes against the laws of war, meaning, an enemy belligerent
 who has engaged in or supported hostilities against the United
 States," Assistant Attorney General Michael Chertoff told the
 Senate Judiciary Committee on Wednesday. "So that's a fairly
 high standard, I would think, and it doesn't apply to people
 who are in custody for garden-variety criminal offenses."

    Gonzales voiced the same theme at an American Bar Association
 conference on national security law Friday, dismissing as
 "totally unfounded" the idea that ordinary green-card holders
 could be hauled before military tribunals for "ordinary
 crimes." He said the administration was after "enemy soldiers"
 -- until reminded that "enemy soldiers" are entitled to the
 protections of the Geneva Convention.

    Gonzales amended himself to describe the quarry as "unlawful
 combatants" who are not so protected.

    Heymann, a former deputy U.S. attorney general, said he has
 been struck by the contrast between the administration's
 rhetoric and the content of the Nov. 13 order, which he said
 was drafted "with an appalling carelessness."

    Far from being limited to terrorist leaders captured abroad in
 violation of the laws of war, Heymann said the order covers 18
 million foreign-born, non-U.S. citizens living in this country,
 most of them legally.

    Under the order, Heymann said, "whenever the president
 suspects that one of them may have been a terrorist in the
 past, or is a terrorist, or has aided a terrorist, or has
 harbored a terrorist," even decades ago, the president has the
 power to send that person to a trial "before three colonels"
 who could convict and sentence on a two-thirds vote.

    Another potential problem, Heymann said, is that there is "no
 law of war, at the moment, on terrorism."

    Under Bush's directive, Secretary of Defense Donald
 H. Rumsfeld could transfer a detainee to another government
 agency for civilian prosecution. But Heymann, Tribe and
 Yale-Johns Hopkins law professor Ruth Wedgwood all agreed in
 interviews that the order as it stands also permits indefinite
 detentions without trial.

    Tribe called this "very troublesome" unless some judicial
 review were provided. Wedgwood said such detentions might be
 useful although they could last for a very long time. Prisoners
 of war and "unprivileged combatants" are normally released when
 a war ends, she said, but there may be no end to a war on
 terrorism.

    "This is an 'if tried' order, not a 'when tried' order,"
 Wedgwood added at the ABA conference. She said it also might be
 "the better part of valor" to detain top al Qaeda suspects
 without trying them, at least until the conflict has subsided.

    The question of judicial review offers another contrast
 between what the order says and what it has been construed to
 mean. Borrowing the words of a 1942 proclamation issued by
 President Franklin D. Roosevelt in the case of eight Nazi
 saboteurs, Bush has decreed that anyone covered by his order
 "shall not be privileged to seek any remedy" in any court here
 or abroad.

    In the Nazis' case, the Supreme Court nonetheless agreed to
 review the saboteurs' habeas corpus petition challenging their
 military trial -- and rejected it, holding their prosecution to
 be constitutional. Gonzales shorthands this by saying that "the
 [Bush] order preserves judicial review in civilian courts" for
 anyone arrested or detained in the United States even though
 the order itself, like Roosevelt's, says the opposite.

    Responding to complaints that Bush's order would permit loose
 rules of evidence, lax standards of proof and less than
 unanimous verdicts, White House and Justice Department
 officials are now calling the directive "a first step" and
 saying the Pentagon might come out with rules more favorable to
 defendants. Gonzales has also said that nothing in Bush's order
 requires secret trials, and he has hinted that only portions of
 the proceedings may have to be closed to protect classified
 information.

    Despite such possible concessions, Tribe and others say
 Congress has to step in. Appealing to courts, Tribe said, won't
 work because the judiciary has always been "extremely
 deferential to the executive in cases of arguable military
 emergencies" and anyone who relies on the current Supreme Court
 for relief is "whistling in the wind."

    Instead of appealing to the international community for
 support, Tribe said, Bush's order presents a face that says "
 'I am the president and if I suspect someone of being a
 terrorist, no one can interfere.' It sounds like an assertion
 of dictatorial power, more than it can possibly be. It would be
 a favor to the president to have Congress authorize some
 limited use of military tribunals and give it the legal force
 the president wants it to have. If it is circumscribed by the
 Pentagon, that is really floating on thin ice."

    © 2001 The Washington Post Company