Civil Liberties and Military Courts 

By Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute


As the Taliban retreated into their stronghold in and about Kandahar, the Bush Administration commenced its own remarkable retreat.  In the war to defend the liberty of Americans, President George W. Bush, following the lead of Attorney General John Ashcroft, signaled his willingness to surrender. President Bush earlier had asserted his belief that the goal of the terrorists behind the September 11 bombings was to destroy freedom and democracy in the United States.  If that is the goal, then it is being achieved not by their hands, but by the hands of Executive Branch as the United States drops one precious liberty after another. In recent weeks we have seen the announcement that military courts will be used to try alleged terrorists, a decision that the government will eaves-drop on attorneys speaking with their clients, and the passage of a Draconian bill perversely named the “USA Patriot Act,” the text of which was not made available for Congress to review before they were asked to vote on it (O’Meara 2001).  It is as if the American government thinks the road to defeating al-Qa’ida is to adopt the judicial standards of the Taliban.

The USA Patriot Act includes a “sneak and peek provision” that sweeps away the Fourth Amendment protections against unreasonable search and seizure that requires the government to obtain a warrant and to give notice to a person whose property is to be searched before such a search is conducted.  The legislation is also intolerably broad.  Although putatively an “anti-terrorism act” the law does not define terrorism as a reasonable person might expect, i.e., as “violence directed against innocent civilians for political purposes,” but rather as “activity that involves acts dangerous to human life that violate the laws of the United States or any state and appear to be intended: (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.”

As if the USA Patriot Act itself weren’t evil enough, President Bush has issued his own executive order decreeing that suspected terrorists will be tried not by the Judicial Branch but by military tribunals.  The proposed system for the secret trial of accused terrorists would permit the imposition of the death penalty with no jury on a mere two-thirds vote of the tribunal.

Attorney General Ashcroft has added his own personal touch of tyranny by infringing on the attorney-client privilege.  American law has always recognized that justice requires that an accused person must feel free to be totally honest with his legal counsel.  To insure that, the privacy of their exchanges had hitherto been guaranteed as sacrosanct. 

Bush’s decision to try foreigners by military tribunals is especially horrifying.  Military tribunals are secret proceedings with no protections against hearsay or illegally obtained evidence and no appeal is permitted.  The detention (before Sept. 11) for extended periods of immigrant Muslims who had committed no crimes were restrained only by the right of appeal, which henceforth will be irrelevant.

The dangers of the system towards which we are sliding should not be understated.  The possibility of politically motivated arrests (almost certainly the real explanation for the persecution of Mazen an-Najjar) is inescapable.  Further, the expansion of civil forfeiture into the “fight against terrorism” has already corrupted the American secret service in ways normally associated with the secret police of third world countries.  At an event in connection with Iranian President Khatemi’s recent visit to the United Nations, a secret service official confiscated my Swiss Army Knife and a package of ginseng in the possession of an American imam and refused to give either of us a receipt.  When the event was over the secret service agent had absconded with our goods.  While the private security officials on duty were appalled by this development they could do nothing about it, and the secret service was unresponsive to my attempts the next day to get an accounting for what had become of my property.  Muslims, and sooner or later all American, should brace themselves to become the victims of looting by government officials in the days to come. 

It is very interesting, although unsurprising, that the cheerleaders of these setbacks for civil liberties in America have been the Zionist neoconservatives.  The Weekly Standard, for example, has had a series of articles lauding this trend and defending its constitutionality.  Traditional conservatives, on the other hand, have joined liberals and libertarians in speaking out against these developments.

The argument that is eventually fallen back on by those who wish to defend this compromise of Americanism is that “there’s a war on.”  Never mind that this was the Taliban’s excuse for confining women to their homes.  Whatever justification wartime conditions lend to the suspension of civil liberties, the fact is that Congress has made no declaration of war.  It is ironic that this desperate attempt to defend the constitutionality of the suspension of civil liberties is itself predicated upon a blatant disregard for the constitutional constraints on the power to declare war: The power to declare war is strictly placed in the hands of the United States Congress and the United States Congress has not declared war since World War II. 

What the Bush Administration is selling out here are not the symbols of democracy.  Women can still choose whether or not to wear a headscarf and children can still go to McDonalds for a happy meal.  What they are abandoning is the very heart and soul of what makes America America.  President Bush solemnly declares “we must not let foreign enemies use the forums of liberty to destroy liberty itself.”  Evidently, he is determined to do that job himself.


Kelly Patricia O’Meara 2001, “Police State,” Insight on the News (11/9) (accessed 11/30/01).