Six Should Be Seven - The American Spectator | USA News and Politics
Six Should Be Seven

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.

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