Military tribunals are an affront to the Constitution
by R. Lee Wrights
On the day he quietly and subtly begin his re-election campaign, President Obama again demonstrated that he has no intention of upholding the oath he took to “preserve, protect and defend the Constitution of the United States.” The president had his attorney general announce that he has reversed his decision to try accused terrorists in federal court, and instead, will subject them to judgment by military tribunals.
While this president has no qualms about taking this nation to war without consulting Congress, or getting a Constitutionally-required declaration of war, he caves in when Congress interposes itself in the administration of the federal justice system; and, impedes the president’s duty and responsibility to enforce the rights guaranteed by our Constitution.
Military tribunals are an affront to the Constitution, the Bill of Rights, and the legacy of our national heritage. Those who fought for American freedom and independence were intimately familiar with a despotic government that rendered the military “independent of and superior to the Civil power,” which deprived people “of the benefits of Trial by Jury,” or which transported them “beyond Seas to be tried for pretended offences.”
Detaining people on the field of battle may or may not be legal or necessary, but once they are detained and taken into custody they are entitled to the same rights as all human beings. The same inalienable rights our Founding Fathers enunciated in the Declaration of Independence and guaranteed with the Constitution.
The rights of due process, a speedy trial, legal counsel, trial by jury, and the legal presumption of innocence until proven guilty, must never be denied or abridged, not even in a time of real or pretended war. The Constitution and the Bill of Rights don’t lose their meaning in time of war or crisis; on the contrary, that is the time they obtain their greatest meaning.
The Framers anticipated the necessity of wartime measures but were also keenly aware it was essential to install safeguards against the arbitrary exercise of power. They feared the excise of power because they had all witnessed first-hand its destructive results. They specifically limited the power of Congress only to defining and listing punishments for “offenses against the Law of Nations” (Article I, section 8). Neither Congress nor the president was given any authority or power to determine the mode of trial.
The Sixth Amendment guaranteeing civilian jury trials “in all criminal prosecutions” still applies, and it makes no exception for terrorism, or war crimes, nor does it allow the president to exclude a person from this guarantee simply by calling him an “enemy combatant.” The Constitution certainly does not give the president the authority to stack the court by appointing the judge (military officer), jury (military officers), prosecutor (military officer) and defense attorney (yes, another military officer).
It’s particularly galling to me that the president will use military officers to carry out this subversion of the very document they have also taken an oath to defend. Perhaps some of those officers will be better at living up to that oath than their commander-in-chief, especially since the military oath admonishes them not just to ” â€¦ defend the Constitution of the United States” but to do so “against all enemies, foreign and domestic.” All enemiesâ€¦ foreign and domestic.
If I do become president there is only one law I shall recognize and that is the Constitution of the United States of America. For a president, there is no other law. It is the law he has sworn to defend and protect. There will be no military tribunals if I become president, because there will be no war.
Those of us who fully cherish and revere America, and the “grand experiment” that’s been handed down through every generation of a nation, know that it is the love for liberty and devotion to freedom that has perpetuated a way of life that – before America – was unknown to mankind. We realize that in order for this way of life to be passed on to the next generation, to our children and our grandchildren, we must remain ever vigilant to preserve and protect its core value and very nature – that all men are created equal, that all men are endowed with these rights by their Creator, and that any encroachments on the liberty and freedom of any person diminishes the liberty and freedom of us all.
R. Lee Wrights is a writer and political activist living in Texas. He is currently pondering a run for the Libertarian Party presidential nomination. He is the co-founder and editor of the free speech online magazine Liberty For All. Contact Lee at firstname.lastname@example.org.