The President announced last week that the first six of the
terrorist suspects being held in Camp X-Ray and Camp Delta at
Guantanamo, Cuba, have been designated for trial by military
commission. Their cases now go to Deputy Defense Secretary Paul
Wolfowitz to determine which will be tried, and on what charges.
All are alleged to be al-Qaeda members, and all will probably face
the death penalty. As usual, any decision making it tougher on
terrorists will go down hard with the EUnuchs of the EU, and this
one is really generating an outcry. At the same time, the seventh
— Zacharias Moussaoui — has thrown the civilian criminal justice
system for a loop because John Ashcroft is playing Orrin Hatch’s
role, trying to pacify Sens. Patrick Leahy and Teddy by giving in
to them. Let’s pray that the whole mess doesn’t end up in front of
Anthony Kennedy.
The Eurowhine is on two levels. A great many Americans — given
the chance to volunteer for firing squad duty to do the honors on
OBL or any of his pals involved in 9-11 — would probably pay big
money to buy tickets for that lottery. But there is strong
opposition to any application of the death penalty in Britain and
continental Europe. The military commissions that may try the six
detainees will certainly have the authority to impose the death
sentence if they determine it is warranted. If the suspects plead
out to lesser charges they — like murderers in civilian courts
here — may well escape the death penalty. Hence the lead article
in the liberal Guardian, headlined “Confess or die, US
tells jailed Britons.”
But beyond the death penalty objection is the objection to
America proceeding without due regard for the EUnuch’s
sensibilities. The Brits and the others object to the fact that
under the rules approved by the President, military commissions
have different rules of evidence, and their judgments — in all but
a very few instances — cannot be reviewed by civilian courts.
Military commissions can consider more evidence than civilian
courts can. Hearsay can be admitted, and classified evidence heard
without giving access to the accused. Though military tribunals
like this have existed since the Civil War, Europe considers them
“kangaroo courts.” Though the Supreme Court and international law
have approved such actions, the Euros want to impose their law on
ours. And they have powerful allies who believe it should
happen.
Whether you agree or disagree with the Supreme Court’s decision
in Lawrence v. Texas (which held the Texas anti-homosexual
sodomy law unconstitutional), Justice Anthony Kennedy’s opinion of
the Court should scare you. Kennedy, writing for the 6-3 majority,
indicates clearly that the Supreme Court — in deciding cases such
as that one — should look not only to the U.S. law and
Constitution, but to what other nations and their creations
(especially the European Human Rights Court) do regarding
homosexual rights. The Texas law was unconstitutional because it
discriminated between heterosexuals and homosexuals with regard to
the same conduct. Fine. But why refer deferentially to European law
and standards? No American justice should even think of that.
Kennedy wants to import Eurolaw. That’s not his job. In fact, it’s
a violation of his — and the Court’s - constitutional
responsibility.
Think about what will happen if — as it may — a case against
one of the Guantanamo suspects makes its way to the Supreme Court.
Will Kennedy, O’Connor and some of the others defer — directly or
indirectly — to European law and sensibilities? If any of them
does, we should ask: why bother to have a president and a Congress
when we have the Supremes? This is a constitutional crisis in the
making. And it may be played out over the fate of terrorists such
as the denizens of Guantanamo, who Joint Chiefs Chairman Gen. Dick
Myers once characterized as so desperate they would chew through
the hydraulic lines of an aircraft they rode on to cause a crash
simply to kill the American crew.
Consider the two Brits, Messrs. Moazzam Begg and Feroz Abassi.
Begg was arrested about three years ago by British MI-5, their
internal security service. When he was arrested, police found night
vision goggles and body armor. Later released, Begg went to
Pakistan and was captured in Afghanistan fighting with the Taliban.
His father says Begg went to Afghanistan to “…help children
with their literacy.” Granted, it’s hard to read through night
vision goggles. Abassi is apparently another hard case like the
others. They are all charged with helping finance al-Qaeda,
protecting OBL himself, and recruiting more terrorists for the
network. The reason the six and their ilk should be tried by
military commissions is best proven by the mess that the Zacharias
Moussaoui trial has become.
Moussaoui — a French-Algerian member of al-Qaeda who was
supposed to be one of the 9-11 hijackers — is the poster boy for
military commissions. Not a U.S. citizen, here illegally, and a
part of the terrorist plan to kill Americans on 9-11, he meets all
the criteria set up for the military commissions. It was only when
John Ashcroft caved in to the demands of Sens. Leahy and Kennedy
that Moussaoui’s case was taken out of the military commissions
loop and put in a civilian court. But the civilian courts can’t
handle these cases.
One of the most fundamental rights of an accused is to have
access to witnesses. Moussaoui’s defense wants access to Ramzi
Binalshib, a high-ranking al-Qaeda leader in U.S. custody. They
claim Binalshib could clear Moussaoui of the charges against him.
The government says — adamantly and probably rightly — that
giving Moussaoui and his defense access to Binalshib would threaten
progress in the war on terror. But they forfeited the objection to
giving Moussaoui access to witnesses in their control by putting
Moussaoui into the civilian courts. No one — not even the worst
terrorist scum — can be deprived of that basic right in civilian
court.
Arguments to the contrary made in a recent hearing by Michael
Chertoff — head of the Justice Department’s criminal division —
were apparently so outrageous they would have embarrassed bad old
King John. Even King John didn’t have the power to choose a
defendant’s witnesses after he signed the Magna Charta. Apparently,
Chertoff thinks King John gave his power away too easily, and wants
to return to pre-Magna Charta days. This was too much for even the
conservative Fourth Circuit, which ruled quickly that the
government must give Moussaoui access to Binalshib. This is such a
mess that the government has only one choice: dismiss the case in
the civilian court and take it to a military commission. To do
otherwise is to risk too much. If Chertoff is embarrassed, that’s
good. Both he and Mr. Ashcroft should be.
The next big diplomatic scuffle we have with Europe will be over
the military commissions. Those arguments should proceed, but so
should the commissions. We cannot allow the Euros to undermine our
system of laws, including the military commissions needed to try
these people in secret, without divulging significant military or
intelligence information. For our Supreme Court justices to suggest
otherwise would be both shameful, and terribly damaging to our
Constitution. If Lawrence v. Texas is a taste of things to
come from this Court, we are under a far greater threat than the
war against terrorism poses. If Congress wants to adopt the laws
and practices of Europe, Heaven help us. If the Supreme Court
decides to, our Constitution may be beyond even Heaven’s help.
Jed Babbin was a deputy undersecretary of defense in
the first Bush administration, and now often appears as a talking
warhead on MSNBC.
