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Survival First, Lawfare Second: The Perils of Suicide-Pact Legalism

By on 3.26.10 @ 6:08AM

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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About the Author


Letter to the Editor View all comments (48) |

Andrew B| 3.26.10 @ 7:59AM

If our government is to be consistent, it should track down the families of the Nazi saboteurs we executed in World War 2 and, at the very least, offer them a formal apology. Perhaps we should throw in some sort of financial restitution.

If such treatment of enemy combatants is too terrible to contemplate today, surely it is a stain on our national honor.

I wonder if Major Andre or John Wilkes Booth have any living descendents. What can we offer them...

Alan Brooks| 3.26.10 @ 11:14AM

'[...] John Wilkes Booth have any living descendents. What can we offer them...?

Acting contracts for the next two Michael Moore flicks, 'Fahrenheit 1865' and 'Bowling for Columbia'

Liberal Reader| 3.26.10 @ 8:02AM

Ronald Reagan trumpeted America's willingness to give terrorists a fair trial as a sign of this country's great strength. George W. Bush's administration presided over the trials of more than 100 terrorists in federal courts.

Trying criminals is something federal courts do remarkably well. Incarcerating criminals is something federal prisons do remarkably well.

Terrorists are not warriors or soldiers. They wish to be regarded as such, but there are few people -- here or abroad -- who actually consider them to be warriors or soldiers. They are dangerous criminals.

To be sure, terrorism represents a threat to society unlike the threat of its nearest criminal cousin -- organized crime.

The government must be empowered to act more aggressively against potential terrorist acts, before they occur, than it is against other kinds of crime.

For this reason, the metaphor of "war" is probably not all that terrible. It helps us understand that the government is going to need unusual powers with respect to detecting and arresting terrorists, and we need to go against our good American instincts and give the government those powers. I freely admit that people on the left -- including myself -- were to jumpy when it came some of the measure the Bush administration put into place to fight terrorism.

But when we catch a man with a bomb in his shorts, and the criminal conspiracy is exposed, there is not better place for that man than federal court, facing criminal charges. Let him have his lawyer. Remember, extending him rights is FOR US, not for him, and such an extension shows the world our strength, like Reagan said it does.

Jeff| 3.26.10 @ 3:29PM

Liberal Reader,
Your response is nothing but liberal rhetoric. Regan may in fact have said that - he was a politician - the difference is that he would never would have done it. Answer this question: what would you do if you were called to jury duty for the trial for KSM and Osama Bin Laden issued the fatwa as noted by the author, that the Jury and their families be killed. Would you have the fortitude to risk your life and the lives of your family members or would you find a way to get out of jury duty so that someone else would have to make that awful decision? The loyal readers of this site know what you would do! Do us all a favor and put your head where it belongs, a place where it will do the most good for the American people - in the sand! By the way, Al-Qaeda doesn't kill by just putting a bullet in your head, they like to torture you fist so that they can watch you suffer.

Alan Brooks| 3.28.10 @ 1:07AM

"[snip] nothing but liberal rhetoric."

Liberal Reader is merely gullible; pure rhetoric isn't rhetoric if it is sincere.
The great flaw of liberalism is also the main flaw of utopian conservatism: naivite'.

John Wohlstetter| 3.31.10 @ 11:20AM

Liberal Reader -

Giving due process rights to common criminals is indeed, as you put it, something we do for US. But giving more legal rights to unlawful combatants in this war than we gave lawful combatants in prior wars is doing something for THEM. What incentive does anyone have now to fight lawfully against Americans, if they face no legal penalty for fighting unlawfully?

JW

Melvin| 3.26.10 @ 8:18AM

You know as an Marine Infantryman, I did not want to place an additional burden upon those Marines that I was responsible for with legal bull squeeze that changes with whomever is sitting on the throne in Washington D.C.
On the battlefield time is not a luxury to thumb through annals of law books, or call the local JAG if it was OK to shoot back as someone who was shooting at us.
At a Grunt's leve,l we hope to hell that all this legal crap is settled by the suits long before they send us into combat an not while the shooting is in progress.
It is easy for attorney's in their Armani's diligently debating in nice climate controlled court rooms for a more humane way in dealing with the bad guys. This legal bloatavating is not conducive to the moral and welfare of our fighting forces in keeping us from getting ate alive by RPGs.
When my platoon went into combat during the first Gulf War we were explained the laws of war, and how we were to conduct ourselves in combat and meeting with the enemy.
These were simple, easy to follow and didn't get Marines killed needlessly because they hesitated for fear of being prosecuted by the very government that place in into harms way to begin with.
When our fighting men and women are in the midst of a heated exchange of gunfire with the enemy is so much to ask for, that government bureaucrats please, !S T A Y T H E H E L L O U T O F T H E W A Y!

Alan Brooks| 3.26.10 @ 11:08AM

And notice, when someone's close relation or friend gets murdered, all of a sudden a defense attorney isn't necessarily a good guy anymore.

Like, even when a liberal gets mugged...

Tim| 3.26.10 @ 2:52PM

If someone breaks into my house in the dead of night, I sure as hell hope my call for help is answered by a man like Melvin.

Margie| 3.27.10 @ 5:02PM

I second that emotion.

Hamish Stewart| 3.26.10 @ 10:08AM

It is unfortunate that in your interesting article you should have repeated the canard about Churchill having known about the German intention to bomb Coventry. This claim has been absolutely refuted by all reputable historians of the Second World War including all the specialists in the use of Ultra during that war. I suggest you read the appropriate volume of the Offocial british History of Intelligence in the Second World War.

John Wohlstetter| 3.31.10 @ 11:31AM

Mr. Stewart -

My source for the Coventry story is "The Ultra Secret" by F.W. Winterbotham (1974), written by the intel officer who first revealed the Ultra story, in which he had been part in WW-II.

JW

Tim| 3.26.10 @ 2:50PM

We have armies because there comes a time where talk and fair play no longer make sense.

Some of you are fine with subverting the constitution for the sake of universal healthcare, but outraged over "enhanced interrogation.

Drew| 3.26.10 @ 3:27PM

Are you seriously arguing that because there was ONE U.S. serviceman onboard an RAF reconnaisance plane, (that helped the Royal Navy sink the Bismarck in 1941)- that we should junk the whole concept of Habeus Corpus?

You know - Habeus Corpus - probably the single most important legal doctrine to arise in the past thousand years or so, at least when it came to promoting a just balance between the rights of individuals and the power of the state.

What the hell are you smoking?

Nick| 3.26.10 @ 7:09PM

Hey, it's Drew, everybody! The Molech worshiping "progressive" troll.

John Wohlstetter| 3.31.10 @ 11:12AM

Ken -

Thanks much for your comments. I am glad you liked my article. I think that Pres. Obama got his worldview not as a child in Indonesia, then a place of moderate Islamic presence. Rather, it came from his radical connections in school & then in Chicago.

JW

John Wohlstetter| 3.31.10 @ 11:17AM

Drew -

One person is all it takes re FDR role from a legal standpoint. Re Habeas corpus, I regard, for reasons noted in my article, the Supreme Court's ruling as based upon a bending of the concept of sovereignty. The dissenters in the 2008 case cited a 1950 case, Johnson v. Eisentrager, that should have been controlling precedent in the case decided in 2008.

JW

Nick| 3.26.10 @ 7:23PM

I get frustrated whenever I read a column like this.

I am reminded of a story we are all familiar with, but of which not many know the details. The trial of Maj. Andre. I didn't know anything about it until a few years ago. I encourage you to look it up.

Maj. Andre was the cheif intelligence officer for the C. in C. of the British forces. He was caught, out of uniform, with the plans for West Point, given to him by Benedict Arnold. This was a violation of the Laws of War, drawn up by the Continental Congress.

Maj. Andre was caught, interrogated, held, charged, tried, convicted, and executed in TEN DAYS!

Gen. Washington even tried to trade Andre for Arnold during this time, but failed. Maj. Andre was an Officer and a Gentleman, not a lowlife terrorist, and he was still hanged in public.

This is what should've happened to all unlawful combatants, especially Saddam.

If it was good enough for the Father of Our Country, it's good enough for me.

Margie| 3.27.10 @ 3:29PM

Washington was a righteous man. I share in the longing for righteousness in the hearts of our leaders like you do. I think that's why we are told to pray for our leaders in the Bible. To me, with the present crop of leaders and their blatant Socialistic and really, Fascistic policies and methods of "leading" us, it is easier said than done, but pray we must. I pray they have a change of heart (and mind) and turn for their ways.
That said, I fully agree with your post. If it was good enough for General Washington, it's good enough for me.

Margie| 3.27.10 @ 3:37PM

* s/b turn from, not for, their ways!

John Wohlstetter| 3.31.10 @ 11:28AM

Nick (& Margie) -

Major Andre was not a terrorist member of a group seeking WMD to use against us. The Father of our Country lived at a time when gunpowder was the biggest threat from weapons we faced. Intel we gleaned from detainees told us more about al-qQeda than we had ever known before, yielding almost all the useful intel about the group's inner workings that we now have.

I refer you again to the quotation in my article from Federalist 41, on wars and the Constitution, from James Madison, Father of the Constitution.

JW

Nick| 4.4.10 @ 1:00AM

Mr. Wohlstetter,

Thank you for your reply.

It is the facts of your article that frustrate me, not the article itself. How our courts can be used in this way boggles my mind.

My point was, yes, Maj. Andre was not a terrorist. He was an Officer and a Gentleman. He was the head of British intelligence. Gen. Washington was a big believer in intelligence and spycraft. He knew the importance of Andre's capture.

But, Maj. Andre broke the Laws of War. He became an unlawful combatant the minute he put on civilian clothes. He was hanged like a criminal, even though he requested to be shot. like a soldier should.

Even though Andre was a treasure trove of intel. He was the equivalent of capturing Ayman al-Zawahiri, al Qeada's #2. Gen. Washington was even willing to trade Andre for Arnold.

Also, in preparation for Operation Overlord, the British took all the German spies they had captured, and told them they would be tried the next morning and shot, if they did not agree to help them deceive German intelligence.

Why didn't we at least do that?

Dona| 3.27.10 @ 12:49AM

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Ken (Old Texican)| 3.27.10 @ 7:26AM

John C.
Excellent article, and an extremely well constructed argument. Thank you for the effort that went into it.

I lived and worked all over the middle east, and my responsibilities required a LOT of interface with the rulers and their "aristocracies" for lack of a better term.
I think I have a pretty good first hand understanding of how they think...and act...in their own "Uhma" (sp?) and out of it in Europe and America.
Their world views are absolutely "Klingon" to ours to use Tom Clancy's term.

First, they have that little "shrug" palms up, when they state from the heart..."I am merely a slave to Allah".
Second, everything ...everything ...is hierarchical in interpersonal relationships. (You are above me, or below me.)
Heh, I managed to remain "above" them, in the sense that my men and I could accomplish stuff they simply were incapable of doing for themselves.

Third, historically, their civilization has grown in such absolutely destitute circumstances, that simply picking up trash along the side of the street, can result in one's hand being chopped off for theft.
(That trash might be someone's evening cook-fire fuel.)

.....just a few of the reasons that make me conclude that they do the muslim equivalent of ROTFLMAO when we even discuss...constitutional rights or protections...for captured "warriors".

Sir, the harsh question that must be asked:

Is Mr. Obama possessed of those world-views/interpersonal views from his earliest days in that culture?
Thoughts?

Nick| 3.27.10 @ 8:51AM

Ken,

Is that why there is garbage in the streets of their towns? I've been wondering about that for almost 20 years!

I was in Saudi and Iraq for Operations Desert Shield and Storm. Every time we drove through some town out in the desert, it had garbage piled up on the outskirts, and trash in the streets.

Jubayl and Dhahran were clean by comparison. If you don't count all the sand in the roads.

Thanks for solving that mystery!

Margie| 3.27.10 @ 5:01PM

Ken,
I learn so much from your posts and I so appreciate you for who you are, and what you've done. You really bring a lot of wisdom to us here.

My thoughts on your question about Obama and his outlook are that yes I think he possesses Muslim views from his youth, though I know not how deeply. But since the Bible says that, "for out of the abundance of the heart the mouth speaks" (Lk. 6:45) and since he said he would stand with his Muslim brothers, (he did say that, didn't he?) and since he has been clear that he bows to leaders who are not our friends (Saudi Kings and Communist Chinese leaders), yet has no problem snubbing our friend and ally, (Israel's Bibi Netanyahu), what are we to think?
When he says blatantly that he believes that our Constitution is OBSOLETE and sets forth to destroy it by replacing our free market system with takeovers and Socialized medicine in order to do the Marxist redistribution of the wealth of our citizens, what are we to think?
He cannot be defended by any right thinking human being.
The only question I have left is: what's next?

Ken (Old Texican)| 3.27.10 @ 8:06PM

Margie, thank you.

To answer your really pretty "zeroed in" question, let me answer this way.

We have read and heard about "obstructed elections" in November. Heck, I have expressed the same fears.

I think we must seriously consider "October surprises" from the communists, (pardon the shorthand).

I am thinking about a "September Surprise" for them....ie: the national sit-down strike by productive people you have read me write about.

Yeah, it would cause a hardship for each of us. Might screw up our respective credit ratings etc.
I am going to sit down with my employees next week and poll them on how long they could "defer paychecks" before it really bites.

See, that way we interrupt the "cash flow" to the gubmint, reminding them not to screw with the elections.

Can you imagine if 50 million one-month withholding deposits on W-2s across the country...delayed...or simply foregone ...happened?

heh 1/10th of the gubmint's cash.....just doesn't show up.

I will post this again Monday, to see if we can get some traction on the idea.
Best regards

Ken (Old Texican)| 3.27.10 @ 9:20AM

Nick,
I think the larger cities may have (finally) "authorized" specific persons to collect trash.
Also another thought. A "slave" doesn't even see trash, and poor "TRASH" don't even see the rusted out cars in front of their house.

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Active Duty| 4.7.10 @ 11:54AM

Solution:
Close Gitmo...Release all terrorists...Drop them off in the desert...Have CIA operative or Marine Recon call in potential terrorist targets...send drone and eliminate targets

We do this everyday. Judge, Jury, Executioner

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