The Military Order of 11/13:
an unfortunate decision
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My friend Tim sent me this time the complete contents of the military order that President Bush signed on November 13th to allow the trial of people accused of terrorism (mind you, only those who are _not_ American nationals) in military courts. He asked about my opinion on the issue. Here is what I had to say about it.

Date: Wed, 14 Nov 2001 21:08:12 -0600 (CST)
From: Jesus Ortega 
To: Tim Kramer
Cc: Sam Moreno
Subject: On Bush's Nov. 13 military order


Thanks for sending the complete contents of the military order that President
Bush signed yesterday.  I always prefer to discuss legislation after getting
a copy of the actual legislation itself and having a chance to read it so
that my analysis doesn't necessarily depends on the political commentators
who, no matter how proficient and honest, will always taint their analysis
with whichever personal ideology they may have.

So, you ask what I think about the order itself.  Here are my first thoughts.

Let me start by stressing that had this very same order come from Bill
Clinton when he was in the White House I have the feeling my relatives in
Spain would have heard the yells of certain conservative talk show radio
commentators crying foul.  The nicest thing we'd have heard is a public
accusation of Communism and relentless expansion of the Government at the
expense of personal liberties and the US Constitution itself.  Now, I don't
know what they think about this military order, but a quick look at Rush
Limbaugh's, Michael Savage's and even even The Washington Times' web sites
shows _no_ evidence of _any_ commentary on the issue.  What do you want to
bet that had this order come from Bill Clinton it would be displayed
prominently in every single one of those web sites together with some
warning about the evil forces of Communism lurking behind the White House?
Once more, that's my problem with this sort of "double standard journalism"
that is nothing but a clearly partisan propaganda.  These guys don't actually
seem to be guided by any idea, but rather by _who_ is behind the idea.

So, said that, let's get into the meat of the military order.

First of all, section 2, subsection a specifies that "the term 'individual
subject to this order' shall mean any individual who is _not_ a United
States citizen" (my stress).  I have a hard time believing that this
particular disposition is consitutional at all, and there are some good
reasons to support my view including quite a few decision of the Supreme
Court in the past.  No other advanced democracy in the world makes a
distinction between nationals and non-nationals when it comes to enjoying
fundamental rights, and I would hate to see the US being an exception here.
It does nothing but to support my view that Americans have no right whatsoever
to go around giving lessons in democracy, at least when it comes to other
Western democracies.  Sure, they have their own limitations, but so does
the American democracy as we can see in this example.  So, cocky attitudes
and overall "lessons" should be put aside.

Second, the whole section 2(a)(1) is quite scary.  It refers to the definition
of the abovementioned "individual subject to this order", specifying that
such individual is defined because he "is or was a member of the organization
known as al Qaida", "has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation therefor, that have
adverse effects on the United States, its citizens, national security,
foreign policy, or economy" or "has knowingly harbored one or more individuals
described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order".

Let me tell you this is pretty scary.  To start with, who decides whether
an individual fits this description?  The executive power?  The President
himself?  The FBI?  The CIA?  The military?  Who exactly is going to decide
whether or not I can be arrested under this military order?

Then, another issue I also find quite worrisome is the fact that the wording
in section 2(a)(1)(i) is so lax.  A part that worries me quite a bit is the
following: "[an individual who] has engaged in, aided or abetted, or
conspired to commit (...) [acts] that have _adverse_ effects on the
United States, its citizens, national security, _foreign policy_, or
economy".  I think we can all agree that this paragraph is quite ambiguous.
What is it exactly that we include here?  Do we also include those people
who simply protest the American foreign policy?  That could have an "adverse
effect" on the "foreign policy", right?  Just the thought that someone can
be sent to military court for being "engaged in" actrs that have an "adverse
effect" on American foreign policy gives me the shivers.

Third, I don't like either the idea of militarizing the whole process.  In
other words, the idea of moving the whole thing to the military jurisdiction.
People accused of terrorism should be tried in civilian criminal courts,
just like Timothy McVeigh was, just like they all are in any other advanced
democracy in the world.  This also includes, by the way, the United Kingdom
under Margaret Thatcher.

Fourth, I also find highly debatable the constitutionality of those
dispositions where the President pretty much gives the Secretary of
Defense a free hand to decide "such order and regulations, including orders
for the appointment of one or more military commissions, as may be
necessary to carry out subsection (a) of this section".  Then, subsection
4(c) adds that the authority of the Secretary of Defense includes "orders
and regulations issued under subsection (b) of this section shall include,
but not be limited to, rules for the conduct of the proceedings of military
commissions, including pretrial, trial, and post-trial procedures, modes
of proof, issuance of process, and qualifications of attorneys".  In other
words, say goodbye to any separation between two of the most important
powers in the constitutional structure.  They are automatically merged under
the authority of the Secretary of Defense, who will of course remain under
supervision of the President of the United States as specified in subsection

Finally, the whole process is pretty much made irreversible by section
7(b)(2): "the individual shall not be privileged to seek any remedy or
maintain any proceeding, directly or indirectly, or to have any such
remedy or proceeding sought on the individual's behalf, in (i) any court
of the United States, or any State thereof, (ii) any court of any foreign
nation, or (iii) any international tribunal".  In other words, any individual
who might be erronously found guilty will still depend on the very same
system that brought about his misery to undo its mistakes.

All in all, a very unfortunate document.  I don't think this Presidential
order will ever be looked upon as a good decision, not even a decision in
consonance with the honorable democratic tradition of the United States.

Said that, let me also stress that I'm also convinced that there are big
differences between the United States of America and non-democratic nations
that make me have more faith on the good faith of the democratic institutions
here than in many other countries.  Needless to say, I also feel exactly
the same about multiple other democratic countries.  I do _not_ believe
that this military order will be used to abuse the powers included in it,
and this is something that distinguishes me from those prophets of the
Apocalypse who speak in the conservative talk shows on the radio across
this country.

Jesus Ortega