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Military Tribunal Rules Violate the Rule of Law

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The government giveth and the government taketh away. Sometimes it does so simultaneously.

When the Bush administration announced it would hold military tribunals for captured Taliban and al-Qaeda members, concern about the un-America nature of the proceedings were so loud the Pentagon was forced to go back to the drawing board to fine-tune the plan. When the modified rules were released recently, some critics breathed a sigh of relief. Even congressional critics were muted.

The Los Angeles Times editorialized that the new rules “moved the adjudication of the cases closer to this nation’s ideals, including the rule of law.” The Wall Street Journal gloated that the critics should have waited, thus avoiding the egg now on their faces: “With the Pentagon’s release yesterday of the tribunal regulations, the critics look more out of touch than ever.”

Well, not so fast. The same day that the Journal ran that editorial, the papers were carrying the latest news from the administration. The New York Times reported that the detainees may be held indefinitely—even if they are acquitted in a military tribunal. The Times report quotes Pentagon lawyer William J. Haynes II: “If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge but may not necessarily automatically be released.”

Let that sink in: acquittal would not mean release. Why? Because these are “dangerous” people, Haynes says. How’s that a for a commitment to “this nation’s ideals, including the rule of law.” It appears the critics of military tribunals were not premature in voicing their concerns.

All this makes Defense Secretary Donald Rumsfeld look a little silly when he says, “If one steps back from examining the procedures provision by provision and instead drops a plumb line down through the center of them all, we believe that most people will find that, taken together, they are fair and balanced and that justice will be served in their application.”

Government spokesmen intone about incarcerating violent people for the “duration of the conflict.” The trouble, of course, is that “the conflict” refers to an open-ended war against a nebulous abstraction: terrorism. The government is thus claiming the authority to hold acquitted persons until they die and are therefore no longer dangerous. This not something I identify with the American Way.

Very little about this war would satisfy the nation’s founders. President Bush exploited the justified anger against the terrorist attacks on the World Trade Center to get a blank check to use force against anyone he believes is a threat to the United States. It’s either checks and balances or blank checks. We can’t have it both ways.

Ah, but we want it both ways—the ways of empire and the ways of constitutional republic. Sorry, it can’t be done. Bush acknowledged that implicitly when he refused to ask Congress for a formal declaration of war. Majority Leader Tom Daschle did the same when he said Bush would not need congressional authorization to attack Iraq.

And the president left no doubt when he announced in his state of the Union address that what began as a narrowly defined effort to stop terrorism aimed at the American people had mutated into a campaign to rid the world of all evil no matter where. The “axis of evil” figment, ridiculed from so many quarters, is correctly interpreted as an imperial program pure and simple. Without evidence that Iraq, Iran, and North Korea had anything to do with the September 11 attacks, they are now on the list of “next targets.” Why? Because they may be trying to develop weapons of mass destruction. And what of those nations that already have such weapons—India, Pakistan, China, Russia, Israel? And those authoritarian allies that oppress their own people? Morocco, Egypt, Saudi Arabia, Turkey, ad infinitum? We overlook that.

By now you might have the impression that foreign policy is cynicism writ large. You’d be right.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.