Global Media Journal

Revised Due Process – A Threat to American Democratic Ideals

Review by

Badriya Al-Jenaib

Barbara Olshansky and the Center for Constitutional Rights, Secret Trials and Executions, Military Tribunals and the Threat to Democracy. Seven Stories Press, New York , 2002. 55 pp., $8.95 (ISBN I-58322-537-4).

The book Secret Trials and Executions by Barbara Olshansky (2002), describes the threat to democracy that has taken place in America since the attacks of September 11. Revision of immigration laws, foreign intelligence operations and domestic law enforcement have all contributed to a breakdown in democracy and due process according to this author. She compares the changes and activities to the “most notorious episodes in our nation’s history” (p. 6). She argues that there has been a “profound” limitation placed on civil liberties, just like times in the past such as the Red Scare, the Palmer Raids that happened after the first World War, the internment of Japanese Americans, and the McCarthy era. She feels that due to the mistakes made in the past that most Americans now look at with shame, the current activities need to be examined very closely. In considering what the Bush Administration is doing in the name of national security, she asks the question, “is such a compromise of civil liberties, democracy and human rights ever tolerable?”

Olshansky describes the measures taken by the Bush Administration after the events of September 11, when President George Bush declared an extraordinary emergency in the United States. He signed a law that allowed trials of those suspected of terrorism or involved in terrorism to be handled by military tribunals, which means that people are being arrested and tried without the guarantees of the American Constitution. There are no rights to an independent judiciary, trial by jury, public proceedings, due process and right to appeal to a higher court. When the new law was signed, 1,200 immigrants had already been detained. The approval was also given for local law enforcement agencies to question 5,000 young men who were from the Middle East and entered the country legally. General information was asked about each detainee’s political affiliation. Even though the Department of Justice said that these types of actions amount to racial profiling, they said the action was necessary. This action followed the Department of Justice’s authorization of the monitoring of attorney-client communications if the individual involved was in any way suspected of being associated with suspicious activities that could be related to terrorist activities. No judicial approval necessary is required, an action unprecedented in American judiciary history. These actions are just a small part of what is taking place in the effort to investigate suspected terrorists. The author believes the actions are completely antithetical to the most basic democratic principles. Citizens, lawmakers, lawyers, educators and others have all expressed major concerns, but the Administration is not listening according to Olshanksy.

America is usually fairly critical of the military tribunal system when used by other countries. China, for example, has been accused of great abuses of human rights because its trials are held out of the public and in secrecy without a jury or due process by American standards. The new Military Order gives the President the power to identify who will be tried, create the rules under which the commissions will operate, appoint the judges, prosecutors and defense attorneys, decide the sentence, decide all appeals and conduct the entire process in secret without accountability even to Congress. This is the greatest amount of legal power ever given to one branch of the federal system since the country was first founded. The President or Secretary of Defense can change the rules of the operations at any time. The Order gives the president this power for an indefinite amount of time.

One of the justifications for these powers is that they are used against non-U.S. citizens. The persons who are subject are almost always legal immigrants, some of who are about ready to become U.S. citizens. The author believes this justification is deeply troubling. She argues that American citizens have never accepted the principle that the constitution only guarantees due process to citizens and not others. She says that the United States Supreme Court has upheld the principle of equal protection under the Bill of Rights for all people who are tried even when the country has been under threat of national security breaks in times past. An example given was when Congress enacted a blatantly racist law regarding Chinese immigrants who were caught without proper documents and who were then sentenced to a year of hard labor without having the right to a trial. The Supreme Court ruled the law unconstitutional. In a more recent case (2001) just before the attacks, the Supreme court said that the Due Process clause applied to all persons in the United States, including aliens, and even those who were unlawful and temporary.

Olshansky argues that the wide power given with the Military Order is even more disturbing when you look at the large number of people it covers. Two of the three categories of non-citizens included under the law do not mention Al Qaeda connections at all. People who are charged with aiding other people who are subject to the order are also allowed to be arrested, even when the first person is just a suspect. The definition of what kind of behavior could be a cause for arrest is completely undefined and left up to the President to decide. The author feels the abuse of this vagueness is likely. At any time, the circumstances that warrant arrest could be changed. An example would be to arrest someone who had contributed money to a humanitarian organization, but if that organization is thought to have connections to terrorism, then the person has committed a suspected act. Also, because there is no time frame, a person who provided housing or aid even 20 years ago to someone who is suspected of terrorist activities could now be arrested.

One of the abuses as described by Olshansky is that people can be detained for an unlimited amount of time before trial, and this is not appealable. There are no time limitations of even informing people what the charges are against them, let alone how long they will be held before trial. They have no avenue of judicial review for being held. There are many violations of the fourth, fifth and sixth Amendments to the Constitution under the Military Order. People do not have the right to have a hearing before a judicial authority to see whether there was probable cause for an arrest. There is no guarantee about how evidence is taken, and there is no protection against unreasonable searches or invasions of privacy and violations of security. There does not seem to be any protection against double jeopardy, which means the person could be tried more than once for the same crime. The Sixth Amendment says the person has the right to a speedy and public trial, and of course, these rights have been lost under those affected by the Order. The Sixth Amendment says the defendant has the right to be informed of the accusations, to confront witnesses, to use compulsory process to obtain favorable witnesses and to have the right to counsel. The right to a jury trial has been put into place so that a defendant can be protected against a prosecutor that is overzealous or corrupt, or biased in some way. This safeguard has been taken away for those people of Middle Eastern heritage, even living lawfully in America. And if the defendant has issues and feels he is being treated unfairly, there are no rules to “seek any remedy or maintain any proceeding in any court in the United States” (p. 29). This eliminates habeas corpus which allows the defendant a judicial review of his detention and imprisonment or if there are constitutional challenges to the detainment. Of course, this in situation, almost all the proceedings are not supported by the Constitution.

The Military Order creates a system in which secret trials and even secret executions could be carried out. Olshansky explains that under this system, a person could be arrested, tried in secret even without being charged first, convicted by a 2/3 vote, sentenced to death, and executed without Congress, the judiciary or the American public ever knowing. Olshansky makes a powerful statement when she says, “Thus, under President Bush’s new Military Order, the checks and balances that define democracy are eliminated, public knowledge is censored, and the President, free from accountability, is invested with totalitarian power. Never before has the American public been forced to shut its eyes, stop its ears, and close its mouth when the pursuit of justice was at stake” (p. 33). The final argument she makes about the problems created by this Order are that it creates a significant risk of the conviction and even execution of innocent people. Because the goal is to use expediency, and there is a “covert objective of vengeance” the Order sacrifices in a deliberate way the sanctions that are meant to protect and prevent punishment of innocent people. All of the things that are built into the American justice system, such as public trials and jury trials, and an objective judiciary are missing under the Military Order. She wonders why America should abandon these protections when terrorists have been successfully tried under the Constitutional due process system. She also wonders who these activities could be seen as morally acceptable when the possible consequences for people are life imprisonment or execution.

Olshansky’s evaluation of current changes in the American justice system carries a lot of power contained in a small book. It describes a very disturbing change in the American justice system against those people who are from my part of the world As an Arab woman, it frightened me to read this book, frightened me because I know how easy it could be for some people to be arrested under these guidelines. For example, Arab people have very strong networking connections with each other. If someone calls and says, I am a friend of your cousin, that person who is being called feels an instant obligation to offer hospitality or any other assistance just because of the family connection. They would not question that person’s motives, only offering generous hospitality. That is our custom. So, years later if it was discovered that this person was somehow involved in what is being described as terrorist activity, even donating money to an organization that is considered terrorist, the friend who assisted could be arrested and secretly put on trial. Another principle of Islam and Arab people is that they contribute to charity and help other Muslims. We spend a month during Ramadan reminding ourselves that there are people in need, and we must contribute to help them. An organization like Hamas, unlike shown in the media, spends most of its efforts in providing education, medical treatment, financial assistance and many other humanitarian needs to Palestinians who have been devastated in some way or another. Hamas also has built schools and hospitals. It has done more to help Palestinians than any government organization. It has called on Muslims to contribute financially, and many feel they are contributing for humanitarian reasons. There may even be more indirect methods that Hamas uses to gather money. It is in our nature to donate funds when someone comes calling to help those in need. And yet if any of the money donated somehow ends up with a connection to terrorist’s activities, then the charge is that the person who was contributing for humanitarian reasons is connected to terrorism and has actually supported terrorism, which the majority of Muslims would not suspect. Now, they may be more careful, but in the past, there was not as much thought given when helping others in need. Many Muslims regularly donate to many causes because they want to do the right thing and help others. I have a friend in the state of Idaho who was been detained for several months because he donated funds to an organized now labeled as having connections to terrorist activities. Thankfully, there was enough media attention because his professors and fellow students tried to help him. After a long trial, the loss of years of work toward his Ph.D., he was finally found not guilty. But how many more men of Arab heritage are detained for similar reasons for undetermined lengths of time? How would we even find out about them except they are no longer around?

On the other hand, although I was very disturbed by reading this book, I also was aware of the greatness of the American system that allows such criticisms of government to be published. In my own country, this would not be the case. Such publications would not be available for the public to read. And so while on the one hand I feel angry, on the other, I have to admire a society that allows the truth to be spoken. If only people would listen. I have to have faith that American people will finally say enough is enough. My fear is, however, that after September 11, most Americans are angry (and rightly so), they do not really know Arab people or have Arab friends, and this situation will be easily ignored because they are not really touched by the circumstances. I also hope that if anyone is convicted under this Military Order that sooner or later some rights will be given to them so that they can appeal or that the public will learn of their conviction and the evidence used to convict them. I hope their lives will not be ignored forever. Most Arabs would not be involved in terrorist activities of any kind, and so when you hear of some many being detained, you have to wonder how many of them are innocent except for the fact that they are Arab born and raised. Luckily, authors like Barbara Olshansky and the Center for Constitutional Rights are speaking out and demanding that America not abandon those principles which make it great.

Revised Due Process – A Threat to American Democratic Ideals

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