In recent years, the conservative assault on the democratic values at the heart of our legal system has manifested itself in a range of sweeping repressive powers. In 2001, after Congress passed the dubious USA Patriot Act and the Department of Justice announced that it would authorize the federal government to monitor attorney-client conversations, George W. Bush signed a Military Order allowing the trial of non-citizens in military tribunals. Barbara Olshansky of the Center for Constitutional Rights has written Secret Trials and Executions to provide activists with a deeper understanding of the consequences of this Military Order.

The power this Order vests in the president is immense in its range: the president alone has the power to decide who will be tried, the guidelines for the tribunals can be changed at any time and any protections afforded to defendants are completely unenforceable. By permitting pre-trial detention to be carried out for an unlimited time frame and without appeal, the Military Order goes far beyond the scope of the USA PATRIOT Act and even violates its language. Olshansky argues that the Military Order allows Bush to accomplish all of his goals, even those Congress expressly rejected upon consideration of the USA PATRIOT Act.

The Military Order is patently unconstitutional. The Supreme Court has held that equal protection applies to non-citizens while in the United States; the Order, however, stands to deprive persons inside the country of their due process rights. The Order is also unconstitutionally vague: nowhere does it define what “international terrorism,” the Order’s stated target, actually entails. (Olshansky properly illustrates that, as the federal government currently defines international terrorism, the term is so broad that it would actually include acts of non-violent civil disobedience). Defendants can be subjected to prolonged detention without a hearing. Any and all evidence the tribunal decides to use, including hearsay evidence, can be used against a defendant. Defendants are denied to a jury trial and can be denied proper counsel. The Order effectively invalidates the guarantee of habeas corpus. Finally, there is no mechanism for proper judicial review; decisions of the tribunal are reviewable only by the same officials who made the initial decision.

The Military Order allows arrest and detention of non-citizens without public knowledge, undermines our system of checks and balances, and takes away any presidential accountability for carrying out secret trials and executions. There is no restraint on the president’s or the tribunal’s decision-making powers. Olshansky explores the historical context of tribunals and determines that there is no American historical or legal precedent for such an abrogation of power. The Order even violates binding international covenants to which we are a party. Ironically, the United States has routinely criticized the use of military tribunals in other countries, most notably in China, Egypt and Peru.

The weak justifications proffered by the president and the Department of Justice do not permit these sweeping violations of our Constitutionally-protected freedoms. Olshansky argues that use of the Order to bring accused terrorists to “justice” demonstrates that the Bush administration believes that secrecy is more important than democracy and will serve only to damage any international legitimacy we might still have, endangers American citizens living abroad who might be brought to “justice” in a similar fashion, and announces to our immigrant population that they are immediately suspected of being criminals and terrorists.

“Can we still call this country a democracy,” she asks, “if we are willing to relinquish our constitutional rights and breach international standards of basic human rights in the pursuit of punishing suspected enemies?” Olshansky appropriately makes her compelling argument in the context of the broader history of American repression of political dissent from the Palmer Raids to the McCarthy era up to the Ashcroft era. Because this book is intended more as a pamphlet than a major monographic study (it is part of Seven Stories’ “Open Media Pamphlet Series”), Secret Trials and Executions does not provide a major in-depth analysis. It does, however, give the reader more than enough information regarding the serious threat posed by the military tribunals in an appropriately direct and to-the-point fashion which makes the book a must-read for activists.

Secret Trials and Executions by Barabara Olshansky New York, Seven Stories Press, 2003.