Remember America before Sept. 11? That was when we lived by the rule of law.

        President George W. Bush is tarnishing the memory of those days by rewriting the laws and arbitrarily deciding who is entitled to their protection in America's hunt for terrorists. He wants to start with the wholesale roundup of 5,000 people who have entered the country legally from elsewhere, primarily the Middle East. The plan is to then sweat them until they cough up the names of other people the government can go after.

        Under a special military order signed by the president, these people can be held indefinitely, so if they want to ever walk free, they likely will provide some new names for their interrogators. When the president decides the government has gotten its hands on someone who may have done something, he can have that person sent before a military tribunal.

        Tribunals are like courts without all the rules. Prosecutors will be able to use hearsay and withhold exculpatory information they think might jeopardize U.S. interests. In the end, if they convince a two-thirds majority of the military officers hearing the case that the suspect is guilty, then that's the end of it. Oh, except that the same officers then get to mete out punishment, which might include execution.

        You won't read about these cases — the president's order allows them to be held behind closed doors, preferably outside of the United States, maybe even on a ship out in the ocean somewhere. That means you won't know who exactly is being tried by your country this way. For all you will know, it may be some of the more than 1,000 people the government already has detained since Sept. 11. We don't know who all of those people are — the government hasn't charged most of them with anything and has refused to release their identities. We are not even sure exactly how many “detainees” there are. The government used to tell us, but they stopped last week because, well, because they got tired of the question.

        The administration defends the president's special order by saying that extraordinary times call for extraordinary measures. We are at war with terrorism, they say. Terrorists should be treated like agents of war, not lawbreakers. What else should we do if we catch Osama bin Ladin? Get him a public defender and read him his rights?

        Yes, this is a war, and no, I am not suggesting that we Mirandize Osama bin Ladin before we drop a bomb on his head.

        But this presidential order isn't about what's happening on the battlefield. It's about what can happen right here at home. It's about giving government agents the power to knock on doors and take people away in the middle of the night without needing to explain anything to anybody.

        Advocates of this policy say that it doesn't apply to us, to real Americans. It's only a way to deal with foreigners — those of our neighbors who may be just visiting or who have not yet finalized their citizenship papers. So much for the legacy of Ellis Island and “yearning to breathe free.”

        So what happens when the next executive order targets those who are naturalized citizens, or who have married people from a foreign country, or who have friends from the Middle East?

        We already have a court system that has shown it can adequately prosecute those who commit terrorist acts. We used them to convict those who blew up our embassies in Africa.

        In the unlikely event that Osama bin Ladin is taken alive, we already have the option of an international prosecution for crimes against humanity. What worked with Herman Goering and Slobodan Milosevic ought to work with Osama bin Ladin.

        Still, the administration argues that our history offers precedent for this extraordinary order. One oft-cited example is the military tribunal that dealt with the conspirators in the assassination of Abraham Lincoln. The army arrested dozens, tried eight and hanged four. Those executed included Mary Surratt, who may not have been guilty of anything more than knowing some of the others.

        Ironically, the Supreme Court later objected to the use of the military tribunal in the Lincoln case and ordered Mrs. Surratt's son John, another alleged co-conspirator, tried on identical charges in a civilian court. John Surratt was found not guilty.
       

        Contact David Wells at 768-8310; fax: 768-8610; e-mail: dwells@enquirer.com. Cincinnati.Com keyword: Wells.

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