Does it make sense to terrorize Afghanistan and to Talibanize the US in order to fight terrorism and the Taliban? Does the US have to act as viciously and violently as Osama bin Laden in an effort to vanquish him?

Bush launched a crusade against a jihad, making war abroad to bring peace, abrogating freedoms at home to bolster democracy. Which part of this makes sense?

In Bush’s war against Afghanistan, the US bombed the UN (four UN minesweepers, in a country of some ten million mines, became the first fatalities), the Red Cross (which was hit twice), mosques (one was hit as Ramadan began), villages, old-age homes, houses, and many other civilian sites of everyday life for ordinary people, destroying their lives, families, and communities.

In the US, there is a different sort of threat. Bush’s belief that “there ought to be limits to freedom” and his simplistic, polarizing warning of September 20^th that “either you are with us, or you are with the terrorists” sets the harsh tone for the administration. Bush’s Press Secretary Ari Fleischer followed up on September 26^th with his threat “to all Americans that they need to watch what they say, watch what they do”. Attorney General John Ashcroft, not to be left out of the fascistic fun, admonished people concerned about rights and liberties on December 6^th. Speaking to a Senate committee, he said: “to those who scare peaceloving people with phantoms of lost liberty, my message is this: Your tactics aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.” What a baseless, horrible, and anti-democratic charge to level against citizens exercising their fundamental rights. This is precisely why we have, and should highly value, our First Amendment. How authoritarian and cruel to say to people who disagree, or are fearful, that what they are doing is comparable to terrorism and treason!

Scores of people deemed “other”—Arabs and South Asians, Israelis and Central Asians, Muslims and Jews—have been xenophobically harassed and attacked by the government, corporations, and vigilantes in the US. There have been approximately 2,000 people held in secret detention, mostly held in solitary confinement and incommunicado, most likely with no connection to terrorism, all of whose names and charges are unknown to us. Additionally, there are possibly 5,000 or more people—primarily Middle Eastern men, though anyone may be considered “fair” game—to be “questioned” by Ashcroft’s deputies.

So secretive and duplicitous the Bush Administration has been that it won’t divulge the evidence against bin Laden it claims to have and has promised to publicize. Even if we already reasonably assume his guilt, direct evidence is still of course necessary. The administration also does not release any information about those it detains, while the government increases its (formerly unconstitutional) powers of surveillance, search, and seizure. The levels of secrecy and deception practiced by this administration—notoriously including the revelation that Bush instituted a bunkerized “shadow government”, secret from even the Congress—are alarming to say the least. At worst, it is another step in Bush’s quiet coup against democracy.

Further erosion of civil rights comes via military tribunals, a form of judicial martial law. Speaking of Bush’s executive order establishing secret military tribunals, Yale Professor Rogers M. Smith says that

The order allows military officials within the United States to arrest aliens on mere suspicion of terrorism, without having to show probable cause; to try them entirely in secret; to use any evidence against them that military officials judge to have ‘probative value,’ even if it is mere hearsay or illegally obtained; to convict them on simple preponderance of such evidence, rather than proof beyond a reasonable doubt; to convict them by a vote of two-thirds of the military judges, without a requirement of unanimity, much less trial by jury; and to sentence them to death, without appeal to the civilian courts.

William Safire, the conservative New York Times essayist, argues that each military tribunal would be empowered to “conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court”. Excising the judicial branch, it would be the executive branch alone that is the “investigator, prosecutor, judge, jury and jailer or executioner”. How convenient! This is what Bush calls a “full and fair trial”. This type of Orwellian authoritarianism is not entirely surprising, however, given that Bush has three times publicly said, as recently as December 18^th and July 27^th 2001, that things would be much easier if he were the dictator—for him, that is.

Many legal experts have criticized the use of military tribunals. A letter signed by more than 300 law professors, for example, describes the military tribunals as “legally deficient, unnecessary and unwise”. The Wall Street Journal simply calls Bush’s military tribunals “indefensible”, arguing that we shouldn’t be “shredding the Constitution—which applies to all ‘persons,’ not just citizens”. In 1866, other legal experts also took issue with military tribunals. In Ex Parte Milligan, the Supreme Court ruled that “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 powers...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...”

It is never an inopportune time to assert one’s rights and to speak up on behalf of justice. Indeed, as Hillel asks, “if not now, when?” The attacks of September 11^th were clearly “crimes against humanity”, especially based on their scope and scale, their horror and human toll, the number of people killed and that they were from so many countries, and the number of survivors still terrified. Bush, however, is treating these heinous crimes as “acts of war”, even though he earlier and correctly compared Al Qaeda to the mafia. It is an instructive comparison.

When trying to stop and punish the mafia (not to mention mass murderers such as Kaczinski, Pinochet, McVeigh, and Milosovic), we appropriately attempt to locate, capture, arrest, arraign, impartially try, convict, and imprison the guilty people, giving them access to their accusers, the evidence, and independent defense counsel, following the rules of law and the norms of justice. We do not, it should be needless to say, carpet bomb and destroy entire blocks, neighborhoods, towns, cities, and countries for the purposes of tracking down individuals or even groups of suspected criminals.

The rule of law simply means that the rules need to follow the law—not the fear, not the fad, not the anger, and not the president—without exception.

Dan Brook teaches sociology at the University of California at Berkeley. His essays have appeared in various media from the American Journal of Economics and Sociology to Peace Review to Z Magazine. He can be reached via Brook@california.com.

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