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Military Tribunals, Courts Martial, Ashcroft, Bush, Leahy, stereotyping, racial profiling, Arabs, Muslims During hearings of the Senate Judiciary Committee under Senator Patrick Leahy, the behavior and legality of President Bush and Attorney General Ashcroft were called into question by Senators Leahy (D), Specter (R), and law professor Heymann of Harvard Law School and Silliman of Duke University Law School.
All of these critics raised questions about the legality of military tribunals when no actual "war" has yet been declared (in past cases of military tribunals, there was a legally declared war).
Though Assistant Attorney General Chertoff tried to justify the use of military tribunals, he consistently mixed them up with courts martial. Fortunately for the panel, Mr. Silliman clarified the confusion by pointing out that courts martial had much more stringent rules of evidence, the need for a unanimous decision and the right of appeal–in the case of military tribunals, hearsay evidence and other types of usually inadmissible evidence may be used, the decision may be by a majority of the judges and there is no right of appeal; thus, they are entirely different species of legal proceedings. With this clarification, much of the argument of Mr. Chertoff, Griffin Bell and Senator Hatch fell by the wayside because their incompetence in the matter became visible. Professor Silliman spent many years in the military courts martial system; thus, his credibility was not questioned on the accuracy of his explanation of the differences between the courts on these matters.
It was also pointed out by Heymann, Silliman and Ms. Martin of the Justice Institute that if America went ahead with military tribunals for trying foreign nationals, allegedly illegal aliens, and alleged "terrorists" that it would lose its moral credibility as a country of protection under the law. The secretive nature of the detentions, the secrecy of the military tribunals, the question of the quality of the judges and the evidentiary slackness would leave the world aghast at America. The scholars also pointed out that this could be a slippery slope that could lead to the same treatment for American citizens, those born in the U.S. and those naturalized, if Ashcroft and Bush so desired.
As one member of the congress was overheard to say following the hearing, "This is chilling–where is America headed–toward 1984?"
Senator Leahy also pointed out that President Bush, when asking for support of the "Patriot Bill" had promised to confer with the Congress before taking new actions in his domestic actions against terrorism; Mr. Leahy felt that Mr. Bush had not kept his promise on this matter by pushing for not only the military tribunals but also supporting Mr. Ashcroft’s desire to listen in on the privileged lawyer-client conversations. This latter behavior by Ashcroft has upset the legal community in America and abroad. In Britain, various members of the House of Commons have criticized Bush, Ashcroft and the Congress for allowing this abuse of the Common Law right of privacy in legal proceedings. Not only this, but some in Spain and in other European countries have indicated they would prefer not to extradite people to the U.S. if the people are to be tried by military tribunals; many of these countries fear that the U.S. will find scapegoats rather than getting to the real roots of problems.
In the Middle East, there has been diplomatic pressure to keep the U.S. from stereotyping all Arabs and Muslims as "terrorists." As the Egyptian foreign minister pointed out, "No one accused Irish Catholics of being terrorists when Timothy McVeigh blew up the Murrah Building in Oklahoma."
Civil rights attorneys and groups in America have also protested the racial profiling of Arabs, Arab Americans (Christian and Muslim) and other Muslims by Ashcroft’s offices–even though he and President Bush said they would do no such profiling. This doubletalk has caused consternation throughout the legal and moral communities within America and without.
It appears it is time for the American public to contact their congress people and tell them to notify Bush and Ashcroft that this trampling of their rights has gone far enough. It may even be time for a congressional investigation of Ashcroft’s behavior; if Bush goes too far, there may be a need for a presidential recall–these are opinions being voiced by many in the civil rights community in the U.S. and in the world.