December 5, 2012 | 5 comments
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September 9, 2011 | 98 comments
In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves.
(Page 3 of 5)
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.
Like Lincoln and FDR, the Framers understood the limits of Constitutions. In Federalist 41 James Madison—whose leading role at the 1787 Philadelphia Grand Convention made him “Father of the Constitution” — set limits to its reach:
The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.
Writing in Federalist 36, Alexander Hamilton proclaimed:
And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.
Hamilton proved to have been an optimist. In a series of rulings from 2004 to 2008 the Supreme Court conferred rights upon unlawful combatants greater than those given lawful combatants in prior conflicts. In World War II America held 400,000 German prisoners of war — the vast majority lawful combatants, by standards of the day — and no habeas corpus writ was granted. In Hamdan v. Rumsfeld (2006) the Supreme Court, in tossing out the Military Commissions Act, treated the war with al-Qaeda as one local in scope, despite bombs bursting all over the globe, so that it could apply Common Article 3 to terror detainees. (The Court’s rationale, that because al-Qaeda is a stateless party the conflict is local, was a crashing non sequitur that could only be sustained in a parallel universe of Alice-in-Wonderland legalism where, per Humpty Dumpty: “When I use a word, it means just what I choose it to mean — neither more or less.”)
In Boumediene v. Bush (2008) the Court applied habeas corpus to Guantanamo Bay by stretching the definition of sovereignty beyond legal authority to pure physical control; such reasoning would hold Lebanon, whose government hasn’t controlled its full territory for more than three decades, as not legally sovereign. (Lakhdar Boumediene, the Algerian detainee who won that case, was released to French custody in May 2009.) It may be said of the Supreme Court’s performance since September 11, 2001 what Lincoln acidly noted in his 1862 Executive Order No. 1:
The judicial machinery seemed as if it had been designed, not to sustain the Government, but to embarrass and betray it.
In insinuating itself so deeply into wartime captivity and thus extending the judicial power to areas hitherto deemed the province of the legislative and executive branches the Supreme Court has partially disarmed us by constraining how elected branches conduct the war, and extended judicial power into areas historically — rightly — reserved for the other branches. It is in wartime above all that Americans are entitled to expect that decisions potentially affecting the outcome of the war be taken by those elected and thus accountable, rather than appointed judges insulated by life tenure.
Nor have the lower courts, and even military courts, been exempt from suicide-pact rulings. In November 2001 — while the fires were still smoldering at ground zero — the Foreign Intelligence Surveillance Court ruled that the USA Patriot Act, passed weeks before and designed to tear down the “wall” that compartmentalized intelligence gathering and domestic law enforcement, did not do so. Instead the Court reinstated the wall. One year later the Foreign Intelligence Court of Review reversed, holding that the Act had in fact done exactly what its language said: tear the wall down, which drafters blamed for much of the confusion in tracking terrorists prior to 9/11.
In August 2004 an al-Qaeda detainee rose during his combat status review hearing and asked to address the tribunal. He began by stating that he would describe his role in the 9/11 attacks. The presiding judge cut him off and said his evidence would not be heard. After conferring with his two bench mates, the judge reversed himself. Too late: the defendant said that he had since lost his train of thought.
In January 2007 a federal judge ruled that a Baghdad call between insurgents, whom our forces wanted to tap in search of three soldiers taken hostage, required a warrant for interception per the Foreign Intelligence Surveillance Act. The judge so ruled because the call, routed over the Internet through the United States, was thus a domestic intercept. Had the identical call been routed through international links only, the judge would have ruled no warrant was needed. The decisions that routed the call through the states were taken serendipitously in milliseconds, via “hot potato” routing by a series of digital computers. Months later, Congress did correct this interpretative absurdity, as not intended by the drafters of the original law.
Which brings us back to the 9/11 trial. If held in New York, what might be in store for a 9/11-terror trial next to Ground Zero? How about a Muslim militant getting on the jury by concealing his radical beliefs, voting for acquittal? How about an anti-death penalty juror preventing imposition of capital punishment? How about a juror enraged by “torture” at Guantanamo? How about Osama bin Laden issuing a fatwa (religious decree) calling for killing jurors who vote to convict KSM, and their families as well? Are we ready for twelve jurors, should they convict, being put into the Witness Protection program?
What if the judge excludes crucial evidence allegedly obtained via enhanced interrogation techniques that President Obama has called torture? And what of contamination of the trial by President Obama’s statement that defendants will be convicted and executed? What if, to win a conviction with vast American prestige at stake, the prosecution accedes to judicial rulings applying the Sixth Amendment Confrontation Clause that require disclosure of potentially sensitive material?
A civilian jury pool will include people profoundly anti-death penalty, viscerally anti-Guantanamo, plus those sympathetic to militant Islam. Muslim jurors cannot legally be excluded from selection. A hung jury means a retrial. Going back to a military tribunal would look like bait-and-switch. Will serial juries hang the case? It takes one juror of twelve to hang a verdict, while it takes twelve jurors to hang a defendant. And what if, due to evidence excluded, jurors reluctantly acquit?
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