In N.Y. trial, a treasure trove for terror

Globe ^ | November 18, 2009 | Jeff Jacoby

[george76]

Senator John Kerry described international terrorism as “primarily an intelligence and law enforcement operation,’’ and urged voters to think of deadly jihadist violence as merely “a nuisance’’ that we need “to reduce’’ - akin, he said, to gambling or prostitution.

Kerry lost that election, and the Bush administration’s very different approach - treating terrorist attacks as acts of war, not criminal violations - continued for four more years. Pre-empting terror in advance, not prosecuting it after the fact, remained the overriding priority. Counterterrorism efforts under George W. Bush were aggressive and they drew much criticism. But whatever else might be said about them, there was no repeat of the Sept. 11, 2001, catastrophe on American soil during Bush’s presidency.

It was always clear that the Obama administration tends to see global terrorism the way Kerry did, as a criminal issue to be handled through the criminal-justice system.

But worse than inconsistent, the administration’s action is reckless.

As defendants in federal court, the Al Qaeda prisoners will be entitled to the full panoply of due-process rights, including the right to discovery of all of the government’s information about them, where that information came from, and the methods by which it was obtained.

“Nothing results in more disclosures of government intelligence than civilian trials,’’ writes former federal prosecutor Andrew C. McCarthy. “They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses - intelligence sources - must expose themselves and their secrets.’’

McCarthy should know. He was the prosecutor of Omar Abdel Rahman, the “blind sheikh’’ put on trial after the 1993 World Trade Center bombing...

No good can come from blurring the distinction between conventional crimes and acts of war.

[Retain Mike]

In reading articles about the New York terrorist trials I seem to hear discussions of consequences without discussions of the actions enabling the controversies. That is the motive for this Op-ed. I realize it is too long. The quotes alone are 364 words, but I do not see my words alone making a point. Frankly, I do not see my words ever getting published, but we are just beginning to suffer the results of a Constitutional crisis created by the Supreme Court. I would hope someone can make this point without ending up on a list of potential right-wing terrorists for having the temerity to quote from the Federalist Papers. Anyway, here it is.

TITLE: Supreme Court Encouraged New York Trials

Barack Obama’s and Eric Holder’s trial decision provide initial logical consequences of judicial malpractice by the Supreme Court. The Global War on Terror confronts this country with invasive, catastrophic dangers exceeding those of WW II. Every capability, be it material, political or legal, must align to defeat this enemy. Notwithstanding this urgency, justices Anthony Kennedy, David Souter, Ruth Ginsburg, Steven Breyer, and John Stevens rejected their responsibilities. They eviscerated the political departments of their Constitutional authority to provide for the common defense.

Alexander Hamilton anticipated this specter when noting the primacy of national security. He said in Federalist Paper 23, “These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can be wisely imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense”. Note powers must exist without limitation in relation to capabilities and intentions. They do not emerge after reflection over damage suffered.

The Legislative and Executive branches hold all powers related to common defense. Congress has power to declare war. The President as Commander in Chief of armed forces employs power to every aspect of military operations, including armed force application, intelligence gathering, and confinement and disposition of captured enemies. The Commander in Chief and Congress must sustain an impenetrable wall behind which citizens may enjoy the benefits of civil liberties, including access to judicial process. The two political branches, most sensitive to accountability by the American people, received tasking for this most sensitive of all issues concerning national viability.

In contrast the Constitution says no common defense powers reside within the unelected Judiciary. As Hamilton says in Federalist Paper 78, “The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment”. The Constitution limits judgment to cases in law and equity, and by separation of powers, limits judgment to reside within sovereign boundaries maintained by the political branches pursuit of common defense.

The essence of our Constitution embodies positively allowed actions. Intentionally, the multitude of actions not allowed by each government branch remains unexpressed. Therefore, the Judiciary commits malpractice by interpreting the “spirit” of the Constitution to establish a responsibility not enumerated. Hamilton in Federalist Paper 78 uses the term “manifest tenor” meaning clearly visible direction of thought and in Federalist Paper 81 rejects a popularly acclaimed “spirit’ when explaining judgment.

A paraphrase from justice Marshall’s opinion in Marbury vs. Madison appropriately defines our Constitution as it applies to the Judiciary. “The powers of the judiciary are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by a judiciary intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the judiciary on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution either controls any judicial act repugnant to it: or, that the judiciary may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary judicial act, and like acts of other branches, is alterable when the judiciary pleases to alter it. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the judiciary repugnant to the constitution is void”.

The justices committed an egregious crime in Hamdan vs. Rumsfeld by reaching into the province of common defense to fabricate an association of terrorists with Common Article Three of the Geneva Conventions. Wahhabi jihadists clearly participate in international armed conflict. They also lack pacific character in regard to hostilities, and do not meet any definition for legitimate armed forces found in Geneva Conventions.

Instead one must consult Article 13 of the First and Second Geneva Conventions and Article Three of the Fourth Convention. Terrorists are not armed forces, militias, volunteer corps, insurgents, or freedom fighters of any country or authority. They are not organized resistance movements carrying arms openly and have no distinctive identifier. Terrorists are not even spies and saboteurs covertly destroying the infrastructure, industrial capacity or armed forces of an opponent. Their campaigns perpetrate murder and mutilation of people defined as Protected Persons by the Conventions. No basis exists to consider such human abominations prisoners of war.

These justices made further intrusions into political branch Constitutional powers with consideration of Bonemediene vs. Bush. The President and Congress sought common ground by following the guidelines the five justices decreed in Hamdan vs. Rumsfeld. These guidelines were rejected before application to any cases. The Court unlawfully claimed original jurisdiction, substituting their pleasure for Constitutional duties of the political branches.

They confiscated common defense authority by fabricating a vague Habeas Corpus process, which by practice and Constitutional mandate has never applied to enemy aliens. By practice the writ was not applied to over 400,000 legitimate Axis prisoners transferred to the U.S. during WW II. Application to terrorists is indefensible. The Suspension Clause is inapplicable because the Constitution uses the words rebellion and public safety describing events within sovereign borders. If one also consults interpretation of Habeas Corpus within English common law, which our Founding Fathers did, again one discovers consistent applicability within sovereign borders.

These five justices perpetrated grievous judicial malpractice. Terrorists became citizens thereby entering a legal conduit and backdoor into our society where presently and prospectively their unlimited butchery equates to a civil murder. These judicial actions are comparable to surgical malpractice of leaving a bloody, festering rag inside a body cavity. Just as those doctors should forfeit rights to practice medicine, these five justices by impeachment should forfeit their right to practice law in the highest court.

Also, no politician should find shelter within these malignant rulings to indulge personal moral orthodoxies forcing this country into harm’s way.