Hi Al,

I've been wondering when you'd get around to this topic. Correct me if I'm wrong, but I was under the impression that you believe in the Constitution and are a strict constructionist. Beyond that, you've often argued for observing the exact letter of the law in preference to loose interpretations. I've disagreed with you on many matters of policy, but this is an area where I've always respected you a great deal.

So let me just say bluntly that I think you are very mistaken about this in virtually every particular, and I really think that you of all people should know better. Safire doesn't seem confused about it, and he's just as conservative as you are.

After Bush signed this outrageous order, I spent a week writing down my thoughts about it. I'll send you a copy of that article separately, and I invite you to show me where I am in error. I've tried to get it published, but no luck so far. But I didn't write it to fit a column; I wrote it to present the facts as clearly as possible, and it's rather long.

Now let me address the specifics in your column:

I say the order is clearly unconstitutional and illegal, as my article explains in detail.

You adopt the Bush rationale:

"The fact is, military tribunals or commissions have played a role in American history for more than 200 years, but there remains great disagreement on how that history applies to the present set of circumstances."

But that's just empty rhetoric. We've done a lot of things in the past that were wrong, but that doesn't that doesn't make them right or sound in the here and now. What matters is what is right and just. You wouldn't advance the Dred Scott decision or Andrew Jackson's forced removal of the Cherokee's from their lands in flagrant contempt of a Supreme Court decision as meaningful precedents. It's also quite obvious that if we only did things the way they were done in the past we'd still be living in caves and hunting dinner with spears. The precedents the administration cites are preposterously weak. In the saboteur case the government lied to the court and railroaded the guy who exposed the plot. In the trail of the Lincoln conspirators, a couple of innocent people were convicted. In both cases there was absolutely no reason that the trials could not have been conducted under the law, except that the government was acting to prejudice the cases.

"A key issue is how to interpret a unanimous 1942 U.S. Supreme Court ruling that upheld the use of a military tribunal to try eight Germans accused of spying. Six of those defendants were executed; two received life sentences."

That's easy: it was an bad decision based on the same kind of lynch mob mentality the Bush administration is exhibiting. We have to stand together blah blah. Better they should stand with the letter of the law-- that is their job after all.

"It's clear from President Bush's order that he relies upon that decision. It's the administration's position that the nation is at war and that Congress has given the president the authority to use all appropriate force, even though there has been no formal declaration of war as there was in World War II."

So what? Willfully ignoring the Constitution and breaking the law in order to lynch somebody that is in custody is not an appropriate use of force. The President is the C in C of the armed forces, not a Roman Emperor, and the only appropriate use of military force is to defeat armed enemy forces in the field, not to usurp the authority of the judicial and legislative branches of the government.

As for Congressional authorization, that's pure BS. The only way Congress could authorize what the President is attempting with this order is by amending the Constitution. Even if that wasn't the case, Bush didn't ask for any of this when they passed the resolution, and it's absurd to suggest that anything so sweeping and illegal could possibly have been intended by the Congress when they passed it because they surely would have stated it specifically if that were true. The President is just pretending that 1 + 1 = 579 and reading into the resolution whatever he pleases in like a dictator.

"That authorization, the administration believes, includes the power to deal with terrorists who are, in the legal lingo, unlawful belligerents." Nonsense. Show me the statute that defines an "illegal belligerent". Hint: if it's to be found anywhere, it would be in the Geneva Convention, which specifically prohibits what Bush is trying to do. And here again, it's just wrong. The OSS and the French Resistance were illegal belligerents; If you want to apply such concepts here, then Bin Laden and crowd are belligerents unless they enter US territory in civilian clothes. The Administration's argument here is fraudulent.

"This term is used to describe those who don't wear military uniforms and engage in acts designed to destroy property and to kill and injure noncombatants."

In that case we are also illegal belligerents. By the Laws of War that the Bush administration is trying to insinuate into all this as being superior to the US Constitution and International Law, it's perfectly OK to destroy property and kill noncombatants for a valid military purpose-- you just aren't supposed to massacre or pillage wantonly. Examples: Hiroshima, Dresden, etc. If this is to be construed as a war, then the enemy gets to be at war with us too-- and the reality is that they launched a brilliantly effective attack that crippled our national economy--- and national economies are legitimate targets in war. Indeed, they are usually the primary targets in a war. This is just another con job by the Bush gang, not to mention a very good example of why the so-called laws of war are properly a dead letter.

"It is notable that the Germans who were executed more than 60 years ago didn't kill anyone. They became subject to military tribunals by the simple act of entering the country with the intention of aiding the enemy war effort."

Well actually it was more because the FBI didn't want to admit that the only reason they had been caught was that two of them were turncoats, and the FBI had dismissed it as a crack call the first time that one of them tried to tip them off to the operation. Espionage is a crime; they should have been tried in the civilian courts, and the informers should not have been tried at all. Instead, the FBI lied to the court and got them convicted, though at least they weren't executed. Military courts properly apply only where the military has jurisdiction, namely: a) trials of US military personnel on active service; or b) in the absence of a competent civil authority, which is clearly not the case here. Our courts are working just fine and we can easily transport anyone we capture for trial to the US.

"The court's language in the 1942 decision is quite apt. It says that courts should not lightly interfere with the rights of the president, who is acting in the "declared exercise of his powers as Commander and Chief of the Army in time of war and of grave public danger."

Baloney. There is nothing as fundamental under the US Constitution as the separation of the powers, and since the executive has all the physical power, the courts and the legislature had damn well better defend their own authority against any and all attempts at executive usurpation or we will wind up a dictatorship like Rome did.

"It lists a long string of powers granted the Congress and the president and says that even U.S. citizenship doesn't necessarily relieve one of "the consequences of a belligerency which is unlawful."

Irrelevant and silly. The only just consequences for a captive are to be given a fair trial, and if convicted, punished according to the law.

"Perhaps the Supreme Court will one day be asked to decide if the use of military tribunals requires a formal declaration of war. Such a finding would be quite novel, in view of the fact that they have often been used - including during the Civil War - without one."

Nonsense. Do you really think it's novel for the courts to make good rulings in preference to bad ones? The precedents are vacuous. The Administration is literally making the claim that political expedience as defined by the mind of the President is more important than both the Constitution and the Letter of the Law, and that it's proper for the Supreme Court to turn a blind eye to both on the basis of archaic decisions that were wrong at the time they were made. Think about it Al--- I know Bush and Ashcroft are that hypocritical, but I can't believe that you are. I just don't think you're being very objective or thorough in your reasoning in this instance.

"The interesting thing about the response to Bush's order is that most of the critics offer no prescription of their own for dealing with a very difficult issue. Most would simply remove the military tribunal option and force the United States to try even key foreign terrorists with the full panoply of protections due American citizens."

You are contradicting yourself here. You say they offer no prescription, yet in the next breath you thump them for offering a prescription you dislike. And underneath the contrived urgency of your rhetoric, what exactly is the prescription that you and the Bush Administration so dislike?

I will state it for you plainly. My prescription here is that the Bush Administration should:

1) Adhere to their oaths of office.

2) Obey the Constitution.

3) Obey the law-- including current international agreements, in particular, the UN charter, the Universal Declaration of Human Rights, and the Geneva Convention.

4) Perform their lawfully appointed duties faithfully and well.

5) Cease and desist from all attempts to usurp and/or frustrate the legitimate authority of the Congress and the Supreme Court.

That's all I'm asking of them. To put it country simple: I want them to do their jobs, and quit all this phony whining about how it's too hard unless they get more "tools".

This is the most powerful nation that has ever existed: they had all the tools they needed to deal with this the day they took office. The only tools they lack are honesty and understanding.

If they don't think they can handle their responsibilities, or if or recent events have convinced them they can no longer honor their oaths of office because they no longer believe in the laws which they swore to uphold, then they should simply resign en masse so we can replace them with people more competent and loyal than they are.

"These critics seem untroubled that someone like Osama bin Laden might, under these terms, go free because he wasn't given the Miranda warning."

True: I am fully confident that if Bin Laden is captured and given a fair trial under either US or International law, he will be dealt with properly and effectively.

What troubles me is the obvious fact that George Bush is a far greater threat to the safety of this country and the world than Osama Bin Laden is.

It's not that I think that our system is perfect; it's just that I've studied enough history to understand that however imperfect our system is, it's far better than a dictatorship (even a limited dictatorship), especially if the dictator happens to be as dishonest and ignorant as George W. Bush.

"No wonder Ashcroft has said he won't be able to spend more than a few hours addressing Leahy's concerns come Dec. 6. Any more would be a waste of time."

No, he's just afraid that the Senators will expose him to public scrutiny and make him look like a liar and a hypocrite, because that's exactly what he is.

* * *

So like I said-- feel free to tell me where I am wrong. Even better, feel free to publish this letter and my attached article in the Denver Post and tell me in public. Maybe you will see the light when you read this. It's really an open and shut case when you add everything up.

If not, consider yourself challenged to a public debate on the issues in print . I know I need an editor, but I also know that my position is solid as a rock-- and I still think you have the integrity to see that on the merits.

The Bush administration is doing everything they can think of to stifle any real debate on this, because they're conning the public by playing on their fears and they don't want anybody pointing out the facts. Tyrants are always afraid of an honest debate. How about you?

Regards, Charly