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a d v e r t i s e m e n t


Naked Power, Arbitrary Rule

By Jonathan Turley

July 21, 2003

Washington is a city that strives to satisfy every tourist want, from faux pictures with the president to tours of our most cherished scandal locations. Before coming to town last week, however, British Prime Minister Tony Blair made it clear that he would not be satisfied with the usual knick-knack souvenirs. He wanted something a bit more tangible: two British citizens scheduled for trial before U.S. military tribunals. It appears that he succeeded, though President Bush may soon regret that he could not pawn off a couple of snow globes and a T-shirt instead.

For 18 months, Bush has rebuffed growing British demands for the right to try their own citizens — a serious blow to Blair, who faces an increasingly anti-American public and a recent motion by 200 members of Parliament, mostly from Blair's own Labor Party, calling for the return of the men for trial in Britain.

Blair's popularity is plummeting because of his steadfast loyalty to Bush and his support for the war in Iraq. The British fought bravely in Afghanistan and continue to lose soldiers in Iraq. They have asked only for the right to try their own citizens in their own courts.

In their private meeting, Blair finally convinced Bush to suspend proceedings against the two men — Moazzam Begg, 35, and Feroz Abbasi, 23 — pending further discussions and possible transfer of the men. Bush appears willing to fork over the men as a personal favor to Blair, but such a transfer would further erode the already thin justification for the U.S. tribunals.

If the British courts are adequate to try these two men, many in this country will ask why our courts are inadequate — particularly after convicting more than a dozen such terrorists (including Al Qaeda members).

Moreover, other countries will now presumably renew their requests for their own citizens. Some officials also are concerned that there is little real evidence against these men and that a civilian criminal trial in Britain could result in acquittals.

The British share the overwhelming worldview that the Bush tribunals are an affront to the rule of law: denying basic rules of evidence, allowing indefinite detention of suspects, barring access to the federal courts, permitting the introduction of statements derived from torture, barring the application of constitutional and federal laws and limiting the grounds for appeal.

Indeed, the British note that American legal organizations have warned lawyers that it would be unethical to participate in such abusive proceedings. These objections have been deepened by the continual references by Bush and Atty. Gen. John Ashcroft to the detainees as guilty. It appears that the British still cling to the quaint notion that defendants should be presumed innocent until proved guilty.

When Bush's past prejudicial statements were raised in a press conference with Blair on Thursday, Bush seemed to rush to fulfill the stereotype of cowboy justice by stating: "The only thing I know for certain is that these are bad people picked up off the battlefield aiding and abetting the Taliban." Of course, John Walker Lindh was taken off the battlefield for aiding and abetting the Taliban but was charged in a real court.

However, Bush has maintained that he is not required to be either consistent or logical: "I'm the commander I do not need to explain why I say things. That's the interesting thing about being the president."

Given the fact that only six people are designated for tribunals and no more than 12 will reportedly be tried, the question is why the administration would incur such costs for so little benefit.

The answer has nothing to do with national security or any of these men.

Long before 9/11, many officials in the administration advocated the expansion of presidential powers — views that were often rejected as extreme and dangerous. With the attacks, these same officials saw the opportunity to re-create the presidency in a new and more autocratic image. By basing the tribunals on the "war against terrorism," the administration would create precedent that would effectively allow a president to assert such extreme powers at any time.

Like "wars" against illiteracy or drugs, the war against terrorism is merely an announced policy of the administration. Thus, if the tribunals are allowed, any president can simply declare a new threat as a justification to hold people indefinitely as enemy combatants or use their own court system for executions.

The president has repeatedly acted like an American Caesar, sending some accused terrorists to federal court while others are sent for tribunal justice. In the case of these two men, Bush will allow them a fair trial in Britain as a gift to a friend in political need while he arbitrarily denies such trials to others.

The message is clear and simple: Bush alone will decide the meaning and the means of justice. Ironically, in his actions since 9/11, Bush may have handed these defendants a victory that they could not have achieved alone. The terrorists sought to destroy the American system and to show that we are hypocrites who refuse to comply with rules that we apply to others.

It takes little to destroy buildings and to sacrifice innocent people. It takes a president to destroy a legal system and its underlying values. Like those he seeks to execute, Bush wants justice by his own definition and by his own hand.

Jonathan Turley is a law professor at George Washington University.