Bad Attitudes, a magazine of culture, politics, art, literature, 
religion & foreign affairs

It’s Not Your Grandfather’s
John Birch Society Anymore

William Norman Grigg is the senior editor of The New American magazine, which he describes as an affiliated publication of the John Birch Society. The following is from his Review of the News Online. I couldn’t have said it better myself, and consequently won’t. Mr. Grigg’s article is headed “President Bush’s Fascist Tribunals.”)

The ruthless acquisition and exercise of power is the hallmark of totalitarian dictatorship in both its fascist and communist manifestations. During the last two years of Bill Clinton’s reign, many of his conservative critics had no difficulty finding the seeds of fascism in his use of executive orders to circumvent congressional opposition. But many of the actions taken by President Bush in the ongoing “war on terrorism” are power grabs more audacious than any attempted by Bill Clinton.

It is not difficult to imagine how conservative Republicans would have reacted if Bill Clinton, rather than George W. Bush, had issued the November 13th decree authorizing the creation of secret military tribunals to try suspected terrorists. That order instructs the Secretary of Defense to establish military commissions that could try any non-citizen suspected of involvement in terrorism.

Trials conducted by such commissions would be devoid of the legal and procedural guarantees found in our Bill of Rights. Rather than a jury trial, each defendant would be tried by a panel of military officers whose decisions would not be subject to review by civilian courts.

...In our constitutional system, the President does not have the authority to create his own court system. All courts below the Supreme Court are created by the Congress and subject to congressional supervision. An executive who can create courts that answer only to him is no longer a President, but rather a monarch or a dictator. Indeed, one of the specific grievances against King George listed in the Declaration of Independence was the charge that “He has made Judges dependent on his Will alone, for the Tenure of their offices...”

Apologists for the President’s judicial power grab insist that precedents for military tribunals were set by Abraham Lincoln and Franklin Roosevelt, and that their use has been unanimously upheld by the Supreme Court. However, the post-World War II Supreme Court decision specified that such tribunals can be convened following a formal declaration of war--meaning that they are ultimately subject to congressional action and oversight.

In its 1866 decision Ex Parte Milligan, which voided Lincoln’s order creating military tribunals the Supreme Court held that if the President can unilaterally create such courts, “... republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution and effectively renders the military independent of and superior to the civil power...Civil liberty and this kind of martial law cannot endure together; one or the other must perish...Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction.”

December, 2001


Copyright © 2004 by Jerome Doolittle