American security and Constitutionalism

In recent weeks the Bush administration has stepped up its attacks against civil liberties. It has proposed creating military tribunals to try suspected terrorists. It has given the FBI the power to detain and question 5,000 immigrants, most of them Muslim. It has authorized the FBI to arrest more than 1,200 others, mostly Muslim immigrants. Now it wants to relax the strict guidelines over the FBI's monitoring of religious and political organizations. All of these policies are justified by the Bush administration as necessary measures to protect America's security in the wake of the Sept. 11 terrorist attacks.

The administration claims that they are further justified because popular opinion polls seem to indicate that many Americans approve of the administration's post-Sept. 11 actions. Both claims are misguided, with the second's fallacious presumption indicating precisely the error of the first. When the term "American security" is invoked, it is vital to understand first and foremost what America means. Only then can a discussion of how to secure America take place. If the Bush administration believes that popular opinion affords it the power to adopt such measures, then it has misconstrued what is most fundamental to American security and thus does not correctly understand how to protect it.

The U.S. government does not derive its power from the popular opinion of the people, nor do the people secure their rights through popular consent. Rather both are codified - not in legal precedent as in some countries, nor in a general societal conception of rights as in others - but in a written Constitution. Any policy that attempts to modify, stretch or break the Constitution outside of the prescribed constitutional methods for doing so is an attack on the fundamental security of the United States of America. It is wrong to construe the United States as simply an amalgam of buildings or people. Without our Constitution, all other structures within this territory could remain intact, yet we would not be the United States of America.

From the clauses of the Fourth, Fifth, Sixth and 14th Amendments, we can infer a general policy that a person remains innocent until proven guilty. The onus is upon the prosecution to prove that some intrusion upon a person's liberty is warranted. However, what the Bush administration has done is reverse the dictum of innocent until proven guilty. All of its recent policies regarding civil liberties demonstrate that guilt is assumed beforehand; all that lacks is appropriate evidence. After all, what justification do the FBI and the justice department give for detaining up to 1,200 Muslims and for trying to question 5,000 others? Is this round-up narrowly tailored to individuals suspected of being terrorists based upon probable cause? Or is it simply a sweep of Muslims based upon the hunch of the justice department? If these are legitimate detentions, there should be no problem in presenting the evidence to a civil court and demonstrating their guilt beyond a reasonable doubt.

When announcing the administration's proposal to implement military courts to try suspected terrorists, Vice President Dick Cheney said that a military trial "guarantees that we'll have the kind of treatment of these individuals that we believe they deserve." Furthermore it was said that the terrorists should not use the tools of liberty to undermine it.

However, the tools of liberty are what determine someone to be a terrorist in the first place. Since one is innocent until proven guilty, it is necessary to prove in a court of law that a person is guilty of a crime. Only then can he be said to be guilty and be accordingly punished. Cheney's comment assumes the guilt of the terrorists, and thus courts with lower standards of proof are acceptable so punishment may be virtually assured. Of course what will not be assured is that those accused are actually terrorists in the first place.

Those who would claim the right to a fair and impartial trial is reserved only for American citizens would do well to note that the 14th Amendment defines what a citizen is and then says that no state shall "abridge the privileges or immunities of citizens of the United States." But it then states: "nor shall any state deprive any person of life, liberty, or property, without due process of the law." Why the emphasis on citizens in the first two clauses, then the use of the more general term "person" in the third, if not to imply that all people accused of committing a crime in U.S. jurisdiction are protected by its rights?

In Ex Parte Milligan (1866), the Supreme Court rejected the use of military courts to try a civilian while civil courts were active. Writing for the majority, Justice Davis stated: "The power of punishment is, alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people . . . No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." No matter what the times, no matter the clamor caused by the vicissitudes of an excited people, the security of America as an entity depends upon the rigorous defense of our Constitution both from threats abroad and especially those at home.

The doctrine of innocent until proven guilty arises from Constitutional provisions and thus must be the dictum abided by in every case under American law, whether we try citizens or foreigners. Dan Ostrow is a politics major from New York, NY. He can be reached at dtostrow@princeton.edu.