Last week, one morning when I was driving from my home to the Temple, I found myself on Eastern Avenue, driving behind a fire truck.  As we drove along, I found myself looking at this large American flag flying from the back of the truck.  This was no small flag on its antenna, but a big flag; as big as any flag one would fly in front of their home.  The effect was really quite dramatic as the fire truck moved and this significant flag unfurled behind it.

But the more I looked at this flag, the more I realized that there was something wrong with this picture.  It quickly struck me what it was.  The flag was not red, white, and blue, but rather red, blue, and gray.  The flag was absolutely filthy.  Hanging on the back of that truck, it was constantly subjected to the diesel fumes of the truck’s exhaust.  And it looked it.

Now, I remember from back in my childhood - from my Boy Scout days - that there are all sorts of rules about how we treat the American flag.  There is a special way to fold it.  It should never be displayed at night unless there is a light shining on it.  We should never let it touch the ground.  The list goes on.  It is a list of flag etiquette.    And one of the things that I know is on that list is a rule about keeping the flag clean and unsullied.

It would appear that those fire fighters, in their heartfelt desire to publicly demonstrate their patriotism, have wound up desecrating the American flag rather than honoring it.  That was not their intention.  Indeed, it was the farthest thing from what they desired to do.  But that is what they have done nonetheless.

Nor are they alone in sullying the flag.  All sorts of people out there are committing all sorts of violations of flag etiquette.  In fact, just the other day, when we were dropping Joshua off at his group home in Iowa City, I noticed that the group home had mounted a flag on the railing of their stoop.  Unfortunately, the flag pole had slipped, and the flag was hanging into a bush.  That is not exactly how one honors the flag.

Tragically, these sullied flags are only symptomatic of a greater and growing problem in our country.  For not only is the American flag being sullied physically, as on that fire truck, it is also being sullied symbolically, and spiritually.  For the great patriotism which has gripped our nation since September 11^th, is beginning, in some sectors, to morph and to mutate into something rather dark; something diametrically opposed to what America and our flag stand for.

Before I go on, let me make one thing perfectly clear.  I have no problems with patriotism.  In fact, I think that patriotism - true patriotism - is really a wonderful thing.  The other day, I was with some clergy col­leagues, and we were discussing this issue, and some of them expressed concern, and worse, about everyone singing “God Bless America,” and displaying signs with that message.  Some of them felt that to ask God to bless America is elitist.  One said, I don’t see any signs reading “God Bless the World.”  I disagreed.  I told them that I felt that it was perfectly appropriate to ask God to bless America.  And to assume that if God blesses America, God is incapable of blessing anyone else, is to posit a perspective of God which is very small and very narrow.  My God can bless America and bless other peoples as well.

Along those lines, to be a true patriot can be a very good thing.  For a true patriot can hold that God blesses America, not because America and Americans are superior to everyone else, but rather because America and Americans stand for principles and values which are beloved in the sight of God.  A true patriot has a deep personal belief in those principles and values, and is willing to commit his or her life to upholding those principles and values.  True patriotism is far more about what we believe and what we hold dear about our country than it is about the flags that we wave and the songs that we sing.

Personally, I consider myself a true patriot, for I love this country and all that it stands for; at least all that it stands for on paper, if not always in deed.  I love the freedoms that it offers, the rights it protects, and the opportunities it grants to all who tread on its shores.  I am a native New Yorker, and I have always loved the Statue of Liberty.  As a Jew, it has always been a source of personal pride that the poem in­scribed upon its pedestal was written by a fellow Jew, Emma Lazarus.  I love that poem.  For me, it captures so much of what America is about:

            “Not like the brazen giant of Greek fame,
            With conquering limbs astride from land to land;
            Here at our sea-washed, sunset gates shall stand
            A mighty woman with a torch, whose flame
            Is the imprisoned lightening, and her name
            Mother of Exiles.  From her beacon-hand
            Glows world-wide welcome; her mild eyes command
            The air-bridged harbor that twin cities frame.
            ‘Keep, ancient lands, your storied pomp!’ cries she
            With silent lips.  ‘Give me your tired, your poor,
            Your huddled masses yearning to breathe free,
            The wretched refuse of your teeming shore.
            Send these, the homeless, tempest-tossed to me,
            I lift my lamp beside the golden door!’”^[1]

That is the America that I love.  That is the America worth being patriotic about.

But sad to say, the patriotism I have just described is not necessarily the patriotism we are beginning to see manifest in our land, at this very trying time in our history.  The patriotism we are beginning to see is, as I have said, something far more dark.  It is a patriotism which is mutating into an ideology of American natural superiority; a superiority born, not of what we do, but rather of who we are.  It is a sense of superiority which professes that Americans are great, and those who are not Americans are lesser, and are suspect.

One of the most frightening examples of this mutated patriotism is the presidential order to subject anyone suspected of involvement in the September 11^th attacks, and who is not an American citizen, to a trial by military tribunal instead of a trial in civil court.  The President issued this order on November 13^th, and according to its provisions, it is directed against, and I quote, “any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, is or was a member of the organization known as al Qeda; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threatened to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy, or has knowingly harbored one or more individuals described” above... The text goes on to state, “Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military com­mission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.  As a military func­tion... the secretary of defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions... Orders and regulations 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...With respect to any individual subject to this order, military tribunals shall have exclusive jurisdiction with respect to offense by the individual; and the individual shall not be privileged to seek any remedy or maintain any proceedings directly or indirectly, or have any such remedy or proceedings sought on the individual’s behalf, in any court of the United States, or any State thereof, any court of any foreign nation, or any international tribunal.”

When you dig through all the legal jargon of this text, this is what comes out.  Any individual who is not a U.S. citizen, and is suspected of any involvement in terrorist activities directed against the United States, will be tried by a military tribunal rather than a civil court.  Such tribunals are under the direct supervision of the Secretary of Defense, who establishes all the rules for their proceeding, including rules of evidence and qualifications of attorneys.  These rules may not reflect the American standards of justice as we know it in civil court.  Those individuals subject to such trials by military tribunals will have absolutely no recourse of appeal to any other court, domestic or foreign.

The implications of such an action are profound, and very frightening.  The Administration has already stated that these trials may very well be held in secret.  The rules of evidence will be relaxed.  People can be, and already have been, detained without charges being filed against them.  The defendants will have no right to lawyer - client confidentiality, and lawyer - client conversations will be monitored.  Proof of guilt may not necessarily be proof of guilt “beyond a reasonable doubt,” which as we all know, is fundamental to the American system of justice.  The decision as to who is an accused terrorist and therefore subject to a military tribunal is a decision made by the President himself, which places into the hands of the President an enormous amount of power over the lives and rights of individuals.

Even as the President was issuing this order, the Justice Department was requesting law enforcement authorities across the country to detain some 5,000 men, mostly from Middle Eastern countries.  Right now, there are still approximately 600 of these men in custody.

This order for the institution of military tribunals for non-U.S. citizens represents a dramatic attack on many of the civil liberties which we Americans have for so long taken for granted.  While there are many voices that argue that military tribunals are fair and just trials, each and every one of us has to ask ourselves, if we were accused of a crime, would we wish to be tried by such a tribunal rather than by a civil court and a jury of our peers?  I know that I wouldn’t.  Indeed, the very premise that these individuals should be subjected to a separate trial process is a direct violation of one of the foundation principles of American justice; that a person is considered innocent until proven guilty.  Determining that such a person should be subject to a military tribunal as opposed to a jury trial is already a reflection on the determination of their guilt.

The Administration has presented some disturbing arguments in defense of these actions.  One such argument is the argument of precedent.  They are quick to point out that this is not the first time in American history that a president has resorted to military tribunals to try civilians.  The examples that they use are from the Civil War and from World War II.  However, one major difference between those times and these is that both the Civil War and World War II were declared wars, not just by proclamation of the president, but by act of Congress.  In our situation, though all the rhetoric is a rhetoric of war, no actual war has been declared by Congress.  The legal experts argue, and rightly so, that an actual state of war does not need to exist for the President to exercise this power.  While that is true, the fact that these other instances took place during a time of “official” war should indicate how serious a step this is, and how extreme the situation should be before a president exercises such power. 

Another argument presented in support of these tribunals is an argument based on the issue of security.  This argument claims that the evidence and information that would be required for a civil trial may compromise United States security and intelligence efforts.  In other words, to protect the security of our country, the defendants can be denied access to information that may alter the outcome of their trial, in their behalf.  This is an argument that claims that national security is more important than civil liberties.  All I can say to this argument was better said by Benjamin Franklin, when he stated, “Those who sacrifice liberty for security deserve neither.”

It should be considered no small matter that these tribunals are solely directed against people who are not citizens of the United States.  If their primary function is to try suspected terrorists, then it should not matter whether or not their defendants are U.S. citizens.  That citizenship does matter is chilling.  For the very fact that citizenship matters is a clear testimony to the belief that those who are not officially Americans - who do not hold citizenship - are less deserving individuals; are not worthy of the same civil liberties that the rest of us enjoy.  That message is totally un-American, for it has traditionally been the American ideal that all human beings are deserving of the protection of their civil liberties.  In this country, all people accused of a crime are supposed to be entitled to a fair trial by jury.  That this is not happening has led Barry Friedman, a constitutional law professor at New York University School of Law to say, “We’re fighting to defend freedom, democracy, and the rule of law - let’s use those things the way we usually do.”^[2]  That we have chosen to single out “foreigners” and deny them their civil liberties is indeed a spiritual sullying of our flag.

On Yom Kippur, we read the “Al Chet” prayer, the litany of our sins.  In Hebrew and in English, it is an alphabetical listing of sins.  When the GATES OF REPENTANCE first came out, we probably all laughed at some of the choices they had to make in English to fit the sins to the alphabet.  And we probably laughed the most over their “X” sin, for there are not too many sins that begin with the letter “X”.  Their “X” sin - “xenophobia.”  Many of us, I am sure, myself included, did not even know what that word meant.  We had to look it up.  It means, “fear of strangers.”  What a strange sin!  However, today it doesn’t seem so strange.  “Xenophobia,” fear of foreigners.  That is what the military tribunals are all about.  When Middle Eastern men, between the ages of 18 and 33 are detained without formal charges, and when charged, are subjected to a form of justice in which their legal protections are significantly diminished, simply because they are foreigner, that is xenophobia.

When Middle Easterners, and those who are mistaken as Middle Easterners, are harassed on the streets, in the schools and in the work places, that is xenophobia.

Even in our own community, when those who manage the Bix race change the rules so that foreigners can run in it, but only Americans can win the prizes, that is xenophobia.  I know that the Bix people say that this decision has nothing to do with September 11^th, and that it is only meant to encourage American Olympic hopefuls, but even if they believe that, they are not being completely honest.  For there was a time when they welcomed Kenyan runners to their race.  Those runners made their race world class.  Now, as our nation fills with this spirit of perverted patriotism - America first, America only - only now could such a decision be rendered and, indeed, welcomed.  And we should be left asking ourselves, “Is it the American way that the winners of a race not be acknowledged as the winners?”

Of all people, we Jews should be sensitive to these issues of xenophobia.  For we have been its victims for far too much of our history.  We know all too well what it is like to be discriminated against, to be treated unequally, to be persecuted, simply because we were different.  We know what it is like, and we know how much we did not like it.

We also know how wonderful America can be.  America has been our haven.  And, as God blesses America, so has America blessed us.  We fled to this country precisely because of the freedoms and the protec­tions and the opportunities that it offered us, and we have cherished them.  Most of us today are neither immigrants nor children of immigrants, but rather the grandchildren and the great grandchildren of those immigrants who found their dreams fulfilled on our shores.  We are their heirs, not just to their names but also to the freedoms that they acquired in coming here.  And through all of this - through our people’s history and our families’ histories - we know what America is supposed to stand for.

We, of all people, should be looking upon these changing attitudes in our country, and be filled with disdain.  An America which singles our foreigners for “special treatment” is not the same America which welcomed our ancestors.  It is not Emma Lazarus’ America.  It is not America at its best.  It is not America being all that it could and should be.  In the face of these changes we cannot remain silent.  For silence is a betrayal of our ancestors and of the America we love; the America which has nurtured us and has given us what no other nation on earth offered - freedom and equality.  As we value our freedom and we value our liberties, so must we hold dear the freedom and liberties of all, citizen and non-citizen alike.

AMEN