A Coup against the American Constitution
An interview with Professor Francis A. Boyle


Conducted Wednesday, November 14, 2001 by Dennis Bernstein
host of Flashpoints on KPFA Radio 94.1 FM, Berkeley,
California


Dennis Bernstein: You re listening to Flashpoints, on KPFA.
This is Dennis Bernstein.

George W. Bush declared an extraordinary emergency yesterday
that empowers him to order military trials for suspected
international terrorists and their collaborators, bypassing
the American criminal justice system, its rules of evidence
and its constitutional guarantees.  The presidential
directive, signed by Bush as commander-in-chief, applies to
non-U.S.  citizens arrested in the United States or abroad.

Joining us to talk about this extraordinary measure is
Professor Francis Boyle.  He is a professor of international
law at the University of Illinois College of Law, in
Champaign.  I want to thank you for joining us, again, on
Flashpoints.

Francis Boyle: Thank you, Dennis.  I'm always happy to be on
your show and your station, and I hope things go well in
your meetings with Pacifica.  It's a great station and it
really needs to be kept on the air and going the way it's
going.

Bernstein: Thank you very much.

Now, secret courts, military tribunals give us, first of
all, your sense of what the implication is of this, maybe
describe what you understand can happen.

Boyle: First, this executive order must be considered within
the context of the massive assault that we have seen
inflicted on the United States Constitution by the Bush
administration and its Federalist Society lawyers, such as
Ashcroft, Gonzales and their staff. We've discussed the
Federalist Society on your station before, I think.

Since September 11th, we have seen one blow against the
Constitution after another, after another.  Recently, we ve
had Ashcroft saying that he had, unilaterally, instituted
monitoring of attorney-client communications without even
informing anyone he just went ahead and did it, despite the
Fourth Amendment ban on unreasonable searches and seizures
without warrant and the Sixth Amendment right to
representation by counsel.

I won't go through all the [recently promulgated] measures
here, but this is one of the more outrageous and dangerous.
As you correctly point out, it applies both to alleged
terrorist suspects here in the United States, who are not
U.S. citizens and, also, abroad.  We have to consider that
separately.  As for those here in the United States, clearly
aliens here are entitled to the protections of the Due
Process clause of the Fifth Amendment to the United States
Constitution, as well as to the Article III (Section 2,
Clause 3) basic constitutional rights in criminal cases,
including indictment, trial before a Federal District judge
or jury, [rights relating to] venue and things of that
nature.  It would take me an entire law review article to go
through all the problems with this executive order.

Moreover, there is the International Covenant on Civil and
Political Rights, to which the United States Government is a
party.  It's a treaty and it, again, affords basic due
process protections to everyone here in the United States,
irrespective of their citizenship.

As for the applicability to alleged al Qaeda members, or
even former al Qaeda members, over in Afghanistan, [there
is] an even more serious problem there.  The third and
fourth Geneva Conventions, of 1949, clearly apply to our
conflict now with Afghanistan.  These alleged al Qaeda
members would be protected either by the third Geneva
Convention (if they are fighters incorporated into the army
there in Afghanistan), or by the fourth Geneva Convention
(if they are deemed to be civilians).  Both conventions have
very extensive procedural protections on trials that must be
adhered to.  This is not to say that a trial cannot happen.
It can happen, but there are very extensive rules and
protections.  Basic requirements of due process of law, set
forth in both of these treaties, must be applied, under
these circumstances.  [Failures] to apply these treaties
would constitute war crimes.

Second is the question of reprisals.  This executive order
is extremely dangerous, because what it is basically saying
to the Taliban government and to al Qaeda is, We are not
going to give you the protections of either the third or
fourth Geneva Conventions guarantees on trials. What that
means is that they could engage in reprisals against
captured members of the United States Armed Forces.  As you
know, we have soldiers on the ground, now Special Forces in
Afghanistan and we also have pilots flying over Afghanistan.
Any of them could be captured by the Taliban government, by
al Qaeda.

If a U.S. military [person] were to be captured, clearly, he
or she would be entitled to all the benefits and protections
of the third Geneva Convention, on prisoners of war.  But
the problem now is that President Bush has basically said,
openly, publicly and officially, that we are not going to
give prisoner-of-war benefits, or fourth Geneva Convention
civilian benefits, to al Qaeda members, to former al Qaeda
members, or to those who have sheltered, harbored or
assisted them.  That opens us up for reprisals. It opens up
our own armed forces to be denied prisoner-of-war
treatment. So, what we re doing here is exposing them to a
similar type of treatment, which would be a summary trial,
in secret, subject to the death penalty.

Bernstein: Let me jump in here, Professor Boyle.

According to the presidential directive, the president
himself will decide which defendants will be tried by
military tribunals and Defense Secretary Donald Rumsfeld
will appoint each panel and set its rules and procedures,
including the level of proof needed for conviction.  This
sounds almost like sort of a quiet coup.

Boyle: Clearly.  What we ve seen, since September 11th, if
you add up everything that Ashcroft, Bush, Gonzales and
their coterie of Federalist Society lawyers have done here,
is a coup d'etat against the United States Constitution.
There's no question about it.

When you add in the Ashcroft police state bill that was
passed by Congress (and several members of Congress
admitted, We never even read this thing when we voted for
it.) that's really what we're seeing now, Dennis, a
constitutional coup d'etat.  There's no other word for it.

Bernstein: What are the implications when the president and
the secretary of defense decide who will be the defendants
and what the necessary level of truth will be?  I mean, it's
hard to imagine how that would work.

Boyle: This is really like the old Star Chamber proceedings,
in the British Empire, where someone accused of treason
would be called before a chamber in quiet, in secrecy. (It
was called the Star Chamber because there were stars on the
[ceiling]). There would be a summary hearing and the person
would be sentenced to death. That was that.

The important point to keep in mind is that the president
and secretary of defense are bound by the third and fourth
Geneva Conventions for anyone over in Afghanistan or
Pakistan.  They have no discretion there.

As for here, in the United States, they are bound by the
Constitution and the Bill of Rights, and they are bound by
the International Covenant on Civil and Political Rights.
There is no exception that the president can unilaterally
announce ipse dixit.  That's exactly what this executive
order you can read about it in today s New York Times is
attempting to do.

Bernstein: It is, obviously, very concerning to
Arab-Americans, to people on visas, with green cards.  We
now have a thousand people in custody.  Ashcroft is talking
about five thousand more that they want to take into
custody.  These are all people that could be tried secretly
and convicted without [any] evidence that we would know
anything about.

Boyle: That is correct.  It's like we re becoming a banana
republic here in the United States, with disappeared people,
which was the phenomenon that we all saw down in Latin
American dictatorships in the 1970s and 1980s, with the
support, by the way, of the United States Government.  The
latest figure I've read is upwards of eleven hundred aliens,
Arabs, Muslims, who have just disappeared somewhere.  We
don't know where they are or the conditions under which they
are being held.  We have no idea whether they have access to
attorneys.  We do know one of them died, under highly
suspicious circumstances, while in custody.  There have been
reports that he was tortured to death.

I should point out that the phenomenon of disappearance is
considered a crime against humanity [by] the International
Criminal Court.  This is very dangerous.

The critical question is: When will the FBI, the CIA and the
National Security Agency start to turn these powers, that
they have under the Ashcroft police state bill, against
American citizens?  Clearly, that will be the next step.

Bernstein: Well.  We have been speaking with Professor
Francis Boyle.  He is a professor of international law at
the University of Illinois College of Law, in Champaign,
Illinois.  We thank you.

----------

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu
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