November 15, 2001

By WILLIAM SAFIRE

WASHINGTON -- Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.

In his infamous emergency order, Bush admits to dismissing "the principles of law and the rules of evidence" that undergird America's system of justice. He seizes the power to circumvent the courts and set up his own drumhead tribunals - panels of officers who will sit in judgment of non-citizens who the president need only claim "reason to believe" are members of terrorist organizations.

Not content with his previous decision to permit police to eavesdrop on a suspect's conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial.

His kangaroo court can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."

On what legal meat does this our Caesar feed? One precedent the White House cites is a military court after Lincoln's assassination. (During the Civil War, Lincoln suspended habeas corpus; does our war on terror require illegal imprisonment next?) Another is a military court's hanging, approved by the Supreme Court, of German saboteurs landed by submarine in World War II.

Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on? Have you forgotten our 5,000 civilian dead? In an emergency like this, aren't extraordinary security measures needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later.

Those are the arguments of the phony-tough. At a time when even liberals are debating the ethics of torture of suspects - weighing the distaste for barbarism against the need to save innocent lives - it's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values.

To meet a terrorist emergency, of course some rules should be stretched and new laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign students, if short-term, is borderline tolerable. Congress's new law permitting warranted roving wiretaps is understandable.

But let's get to the target that this blunderbuss order is intended to hit. Here's the big worry in Washington now: What do we do if Osama bin Laden gives himself up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give the terrorist a global propaganda platform. Worse, it would be likely to result in widespread hostage-taking by his followers to protect him from the
punishment he deserves.

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and
5,000-pound rock-penetrators.

But what if he broadcasts his intent to surrender, and walks toward us under a white flag? It is not in our tradition to shoot prisoners. Rather, President Bush should now set forth a policy of "universal surrender": all of Al Qaeda or none. Selective surrender of one or a dozen leaders - which would leave cells in Afghanistan and elsewhere free to fight on - is unacceptable. We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist
force.

If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his - and Americans would have no need of kangaroo courts to betray our principles of justice.
 

©Copyright 2001 The New York Times Company