DON'T SHRED THE CONSTITUTION TO FIGHT TERROR

President Bush has declared that an "extraordinary emergency" allows him to
order military trials of non-U.S. citizens -- even if they are arrested
here, are tried here, and reside here legally. The president need only
assert that he has "reason to believe" the non-citizen is involved in
international terrorism. We all want to fight terrorism, but shredding the
Constitution -- which applies to all "persons," not just citizens -- isn't
the way to do it.

Under the recently issued executive order, the defense secretary sets all
the rules for these tribunals, including how many members will be on the
panel, what qualifications they must meet, what standard of proof will be
needed to convict, and what type of evidence can be considered. There will
be no judicial review. Only the president or defense secretary will have
authority to overturn a decision. Astonishingly, the only rule that Mr.
Bush's executive order lays out with specificity is that the accused can be
convicted and sentenced -- to life in prison or death -- if two-thirds of
the panel agree.

Even military courts, under the Uniform Code of Military Justice, require
unanimity in capital cases and provide for several stages of appellate
review. They also preserve many of our Fifth Amendment rights, like
protection against double jeopardy and self-incrimination, and the right to
Miranda-type warnings. Unlike conventional military courts, the new Bush
tribunals could unleash an ugly and dangerous breed of justice, lacking the
due process guarantees that distinguish us from the barbarians we are fighting.

The problems grow the more closely one examines the language of Mr. Bush's
executive order. For example, the secretary of defense can "transfer to a
governmental authority control of any individual" under the order. That
could easily be construed to condone deportation, without conviction or
trial, to a country that would be more willing than the U.S. to extract
information by torture.

The order also provides that a detainee "shall not be privileged to seek
any remedy . . . directly or indirectly . . . in any court of the United
States." Despite denials from the administration, that provision sounds
much like suspension of habeas corpus, long celebrated as the "Great Writ."
Yes, if Congress approves, habeas can be suspended, but only if there has
been an invasion or rebellion, neither of which is a fair characterization
of September's horrific acts by a handful of terrorists.

Once an individual is scheduled to be tried by a Bush tribunal, the
tribunal secures "exclusive jurisdiction with respect to offenses by the
individual." Note that the executive order says "offenses," not "terrorism
offenses." Thus the tribunal might acquire authority to prosecute ordinary
crimes -- drug dealing, say -- as long as the president had "reason to
believe," although not much evidence, that the defendant was also involved
in terrorism.

That would not pass constitutional muster. In 1866, in Ex parte Milligan,
the Supreme Court held that military tribunals may not try civilians unless
the civil courts are "actually closed and it is impossible to administer
criminal justice." After Pearl Harbor, Hawaiian authorities declared
martial law, closed civil courts, and used military tribunals to prosecute
ordinary crimes. Five years later, in Duncan v. Kahanamoku, the Supreme
Court reaffirmed that martial law could not justify replacing civil courts
with military tribunals.

Significantly, the court also held in Milligan that martial law may be
declared only by Congress, during wartime, and subject to judicial review.
That raises another grave problem with the edict: It was concocted without
congressional input. Citing his power as commander in chief, Mr. Bush
claims unilateral authority to establish the new tribunals. But that
authority, at best, is shared with the legislative branch. Congress, not
the president, is empowered by Article I, section 8, "To make Rules for the
Government and Regulation of the land and naval forces."

The administration has two responses.

First, it contends that Congress has spoken. On Sept. 14, the Senate and
House overwhelmingly passed a resolution authorizing "action against those
nations, organizations or persons" that the president determines "planned,
authorized, committed or aided" the terrorist attacks of Sept. 11. True
enough, but the resolution had nothing to say about tribunals. It
sanctioned the use of force, not the procedures for convicting guilty parties.

Second, the administration cites the secret military trial, ordered by
Franklin Roosevelt, of eight Nazi saboteurs who had landed in the U.S. with
explosives. In 1942, the Supreme Court gave its consent (Ex parte Quirin),
and six of the eight were ultimately executed. Yet that case cuts the other
way. For starters, it applied to agents of a foreign government who were in
this country illegally. Moreover, the court upheld the right of judicial
review, which is nowhere to be found in the Bush executive order, and
observed that Congress had formally declared war, expressly authorizing
military trials of offenses "against the law of war." No state of war has
been declared today.

The Bush executive order takes a perilous step toward eviscerating the
time-honored doctrine of the separation of powers, a centerpiece of our
Constitution. Too much unchecked power is vested in a single branch of
government. The president and his secretary of defense -- if not this
administration, then a successor with fewer constitutional scruples -- can
run roughshod over the Bill of Rights. At a minimum, to the extent that
military tribunals can try legal aliens, without congressional
authorization, that's bad law, and bad public policy. It is also morally
indefensible. This decent and honorable president can do much better.