I did not mean that the reputable Constitutional scholars are unanimous. Lawyers are trained to assert contrary positions and many certainly say some silly things while remaining reputable. However, most of the matters that I specifically referred to have been rejected as legitimate exercises of governmental power, and the Constitutional doctrines upon which they were premised have been overruled by more recent Supreme Court decisions. The notion of an open public hearing before one is deprived of significant rights established by pre-existing law is pretty basic to any view of Due Process.

The Catholic Church, or a Law School that is part of a Catholic University, however reputable it may be, does not strike me as the place to go for explanantions of Due Process that are sympathetic to the accused. It was the Catholic Church, after all, which refined and developed the secret trial through its inquisition. Its official position on the United States Constitution, as exemplified by its view of abortion, is that it is subordinate to the Church's view of God's law and the Church therefore rejects much well-established doctrine. An institution built upon the declared infallibility of its leader is not likely to be very high on the notion of due process (except where its infallible leader says its due).

With regard to Dean Kmiec's comment as quoted by DougR above (which is all I know about what he said since I have not seen the USA Today article), it really does not differ with anything that I have said, and I do not disagree with it. All that he says is that the President's order is not extraordinary when placed in the context of military campaigns. Many things, such as burning villages, killing women, children and even male non-combatants, the destruction of hospitals and other civilian facilities is not unusual in the context of military campaigns. That does not mean that those are good things. Neither does it mean that it is proper and right for such things to occur even in the context of military campaigns.

We are not living under martial law here at home and war has not even been formally declared abroad. Add to these facts some of the definitions of terrorist that have been thrown around by the Administration and those close to it, which would label as a terrorist just about anyone who has attended a demonstration and not immediately followed a police officer's direction to move or keep quiet, and the fact that most of those detained seem to have been picked up more on the basis of a racial profile than anything else, and you have a recipe for tyranny.

Our Courts function quite well in trying matters of great importance without sacrificing the ordinary requirements of Due Process. Our present situation does not cry out for an abandonment of such process. To the contrary, when I see the flag I think of our freedoms and our system of due process as among the most important things that it symbolizes. Take protection of those things away from the definition of what the flag symbolizes and the Country is about and we do not have a flag or a Country worth feeling patriotic about.

In thinking about these issues one can only achieve clarity of thought by considering the innocent person falsely accused and placing one's self in those shoes. What is fair? What is just? What process is due? If one takes the opposite approach and assumes that only guilty people are charged by our system, then one can justify almost anything. Those who applaud the administration's military tribunals for terrorists are those who cannot imagine themselves, or anyone who is not in fact a terrorist, ever being accused of such a dastardly status by our government. History, however, is replete with examples of the government persecuting and prosecuting the wrong person(s), even here in the U.S.A.

-Bennet D. Zurofsky, Esq.

P.S. I am from New Jersey and a Jew and I do not care for the anti-semitic pun on my State's name made above, however humorously it may have been intended.