Commentary by Mumia Abu-Jamal: Military Courts and Congress


In the aftermath of 9/11/01, the Bush administration has announced plans to form, staff, and adjudicate military tribunals to try anyone the U.S. deems a “terrorist.” These courts will be presided over by military officers, as will any appeals process, with the final arbiter, either the defense secretary or the president, ending the case.

No civil judge, of any division or rank of the federal judiciary, will ever hear any syllable of appeal from anyone tried before such a tribunal.

So frenzied is the American mood, so supine the liberal elite, and so prostrate the nation’s legal community to power, that barely a murmur is heard in protest to this gross, naked power grab by the administration.

It is not enough that the institution of such courts is the very antithesis to the grand American claim to “due process.” Nor is it sufficient to argue that such war measures are inappropriate in the absence of a formal, congressional declaration of war (this Congress would have no real trouble doing so).

This Congress, already jittery in light of reports of anthrax contamination of some offices, rushed through in record speed (with little debate, no public hearing, and neither a committee report nor a conference) the unprecedented, complex, and radically repressive USA Patriot Act.

The presidential decree ordering military tribunals is, on its face, unconstitutional. Indeed, the very provision which grants the president commander in chief powers, also limits his powers over judicial matters. Here’s what it says:

[Art. II: Sect. 2, Constitution of the U.S.]

The President shall be Commander in Chief of the Army and Navy of the United States. … He shall have Power, by and with the Advice and Consent of the Senate …; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court….

And from Article III; Section 1 of the Constitution: The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

There it is. The president, acting in concert with the Senate, nominates and appoints Supreme Court judges, and Congress ordains and establishes new courts. Congress can’t abdicate this duty to the executive.

The president’s order establishes a court, one which has all of its officers under his direct control and command. This is a classic kangaroo court, of the very kind that Americans condemned when the Fujimori regime established them in Peru (interestingly, to fight “terrorism”).

Nor is this meant to heap false praise on U.S. civil courts, which are fundamentally political institutions. Have we all forgotten the trial of Tim McVeigh, the domestic terrorist, where it was later learned that the FBI withheld thousands of pages of documents, until days before his execution? Civil courts merely winked at this violation, as a minor irritant.

And while the government had its way (by executing McVeigh), it was embarrassed by reports of their handling of the case. That won’t happen now, will it?

Under the Bush administration, military tribunals serve as an instrument of administrative whim. Under the command structure of the military, each judge, each jury, each prosecutor, and each court officer is a sworn officer of the military, in the sworn service of the commander in chief. If they want to further their career in the armed services, even if they ever wanted promotion, they follow their administrative cues. What do you think they would do to a foreign national, who is already tagged as “the enemy”?

With either Bush, the secretary of defense, or even another military panel serving as a Supreme Court of Appeals, what would be the result?

But, after all, the accused are (to use the term of popular appeal) “sand niggers” (the Brits would call them “wogs”), Arabs, Pakistanis, a few Afghans-so, why care?

The same was said in the ’20s when Russian Jews were exiled from the U.S. after the Palmer Raids, or in the ’40s when Japanese were thrown into concentration camps; they’re just “commie Jews,” or “slants”-right?

Such events were said to be separate, involving “others,” yet they tainted the judicial process and U.S. claims of fair play, up to the present generation.

Let us fight this madness, or it will return to haunt us all.



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