by R. Lee Wrights
BURNET, Texas (April 6) — On the day he quietly and subtly begin his re-election campaign, President Obama again demonstrated that he has no intention of upholding the oath he took to “preserve, protect and defend the Constitution of the United States.” The president had his attorney general announce that he has reversed his decision to try accused terrorists in federal court, and instead, will subject them to judgment by military tribunals.
While this president has no qualms about taking this nation to war without consulting Congress, or getting a Constitutionally-required declaration of war, he caves in when Congress interposes itself in the administration of the federal justice system; and, impedes the president’s duty and responsibility to enforce the rights guaranteed by our Constitution.
Military tribunals are an affront to the Constitution, the Bill of Rights, and the legacy of our national heritage. Those who fought for American freedom and independence were intimately familiar with a despotic government that rendered the military “independent of and superior to the Civil power,” which deprived people “of the benefits of Trial by Jury,” or which transported them “beyond Seas to be tried for pretended offences.”
Detaining people on the field of battle may or may not be legal or necessary, but once they are detained and taken into custody they are entitled to the same rights as all human beings. The same inalienable rights our Founding Fathers enunciated in the Declaration of Independence and guaranteed with the Constitution.
The rights of due process, a speedy trial, legal counsel, trial by jury, and the legal presumption of innocence until proven guilty, must never be denied or abridged, not even in a time of real or pretended war. The Constitution and the Bill of Rights don’t lose their meaning in time of war or crisis; on the contrary, that is the time they obtain their greatest meaning.
The Framers anticipated the necessity of wartime measures but were also keenly aware it was essential to install safeguards against the arbitrary exercise of power. They feared the excise of power because they had all witnessed first-hand its destructive results. They specifically limited the power of Congress only to defining and listing punishments for “offenses against the Law of Nations” (Article I, section 8). Neither Congress nor the president was given any authority or power to determine the mode of trial.
The Sixth Amendment guaranteeing civilian jury trials “in all criminal prosecutions” still applies, and it makes no exception for terrorism, or war crimes, nor does it allow the president to exclude a person from this guarantee simply by calling him an “enemy combatant.” The Constitution certainly does not give the president the authority to stack the court by appointing the judge (military officer), jury (military officers), prosecutor (military officer) and defense attorney (yes, another military officer).
It’s particularly galling to me that the president will use military officers to carry out this subversion of the very document they have also taken an oath to defend. Perhaps some of those officers will be better at living up to that oath than their commander-in-chief, especially since the military oath admonishes them not just to “… defend the Constitution of the United States” but to do so “against all enemies, foreign and domestic.” All enemies… foreign and domestic.
If I do become president there is only law I shall recognize and that is the Constitution of the United States of America. For a president, there is no other law. It is the law he has sworn to defend and protect. There will be no military tribunals if I become president, because there will be no war.
Those of us who fully cherish and revere America, and the “grand experiment” that’s been handed down through every generation of a nation, know that it is the love for liberty and devotion to freedom that has perpetuated a way of life that — before America — was unknown to mankind. We realize that in order for this way of life to be passed on to the next generation, to our children and our grandchildren, we must remain ever vigilant to preserve and protect its core value and very nature — that all men are created equal, that all men are endowed with these rights by their Creator, and that any encroachments on the liberty and freedom of any person diminishes the liberty and freedom of us all.
R. Lee Wrights, 52, a libertarian writer and political activist, is considering seeking the presidential nomination because he believes the Libertarian message in 2012 must be a loud, clear and unequivocal call to stop all war. To that end he has pledged that 10 percent of all donations to his campaign will be spent for ballot access so that the stop all war message can be heard in all 50 states. Wrights is a lifetime member of the Libertarian Party and co-founder and editor of of the free speech online magazine Liberty For All. Born in Winston-Salem, N.C., he now lives and works in Texas.
Wrights for President Exploratory Committee
Contact: Brian Irving, press secretary
[email protected]
919.538.4548
Military tribunals are an affront to the Constitution, the Bill of Rights, and the legacy of our national heritage.
This is in error and the issue is not as simple as black and white. During the early days of our country John André a British commander and spy was captured by George Washington’s army. André was tried by a military tribunal under the direction of George Washington. He was convicted of being a spy. He was sentenced to death. André was allowed to communicate with his superiors to try and get his release. George Washington wanted to exchange André for Benedict Arnold. The British refused and André was put to death.
Should John André been tried by a civilian court? I would say no because this was a time of war. And if he had been tried by a civilian court who would make up the jury? Would those colonists who did not support the Revolution be excluded from the jury? Would this have been fair to André? It is not so simple.
No, Lee, military tribunals are an abomination, showing the that the Bush and Obama administrations that advocated for them are disloyal to our country.
AroundtheblockAFT,
“So if there is no evidence independent of what KSM provided after the time when he should have been mirandized and wasn’t, then he walks.”
Not all judges will throw out all evidence provided in the absence of being “mirandized,” nor should they. Evidence provided between the time he should have been “mirandized” and the time he actually was, or the time he actually got access to a lawyer, evidence provided under torture, etc. probably would be, and definitely SHOULD be, excluded.
That’s not just about KSM; he’s only the instant case. If the government is allowed to secure evidence through illicit means without any actual sanctions, just “we’ll allow it this time, but don’t let it happen again,” then it will continue to secure evidence through illicit means.
Furthermore, if the government didn’t have any evidence against KSM before abducting him and imprisoning him, then why did they do so?
“Then we have to hope that somewhere between the courthouse steps and JFK airport, a 9/11 victim’s heir, or other
anti-terrorist, smears the p.o.s. all over the sidewalk”
That’s a lot smaller window than seems actually likely.
Suppose KSM is acquitted — which seems like a long shot, even if the judge is a complete tight-ass about excluding illegally obtained evidence. Short of going down to the nearest radical mosque and picking the jury pool from its prayer crowd, there’s probably not a very good chance of getting a jury that won’t convict.
Suppose KSM is not just released, but flown back to Pakistan at US government expense.
Do you think it will be more than five minutes from his feet touching the tarmac that one of the following things happens:
– A Predator drone takes out KSM — as “collateral damage” to some other identified target who happens to be standing next to him, of course.
– US allies in the Pakistani government swoop in, lead him away in legirons with a black hood over his head, never to be seen again, at least alive. White House: “Internal Pakistani matter. Don’t know anything about that.”
– Unknown gunmen riddle him with bullets. Langley: “We are unaware of any such operation, nor would we be disposed to discuss it if it did in fact exist.”
???
A more creative, but not quite as certain, solution would be for the US to strike several targets right before his release, and “let the word slip out” that KSM gave them those targets, and is being re-inserted into Pakistan as a US mole.
KSM is going to either spend the rest of his life in prison, or die horribly shortly after being released.
We don’t have to sacrifice formal due process protections for that to happen, nor should we even if it wasn’t going to happen.
#14, I understand. So if there is no evidence independent of what KSM provided after the time when he should have been mirandized and wasn’t, then he walks. Then we have to hope that somewhere between the courthouse steps and JFK airport, a 9/11 victim’s heir, or other
anti-terrorist, smears the p.o.s. all over the sidewalk, and that no jury in America will find
said smearer guilty of anything except littering!
The more likely scenario is that the defense would move to exclude any statements or confessions made under torture. If that’s the only evidence they have (a possibility), then the case would be dismissed for insufficient evidence, but not dismissed because of the constitutional violation.
There is an argument for it, namely that the crimes at issue are actually acts of war, the defendants are enemy combatants, and so the military system is appropriate.
I don’t buy it and didn’t buy it when it was advanced by the Bush administration. The real issue here is that Obama/Holder didn’t buy it either, until having a trial in NY was hard/expensive/unpopular.
Obviously, with the next KSM captured the feds need to proceed with the same due process granted to any other criminal. But what about KSM himself?? Due to the way the Bush admin. decided to handle his case, is it now impossible to hold any sort of non-military trial? How can witnesses testify or evidence be brought out for all the world to see if a defense attorney can move to dismiss the case before it begins because constitutional rights were not granted to KSM?
8 tk: I’m going to go all Capozzi on you…
me: Wow! I am honored. This one should be trademarked!
DC,
KSM is not the only one being denied due process.
He’s just the one those who favor denying due process like to hold up, as their “best case.”
For that very reason, KSM is the one we should push on.
Destroy their “best case” and the worse cases automatically collapse with it.
Make an exception for their “best case,” and they’ve established a beachhead which they’ll then try to expand to encompass their weaker cases as well.
I think pushing for KSM specifically is a bad idea, though generalizing his situation into a policy to denounce torture and a willingness to provide due process (in whatever form is legally and practically sensible) to our enemies because we are, in fact, better than them might work.
AroundtheblockAFT,
Those are good questions. I’m going to go all Capozzi on you and suggest that there aren’t really any pat answers.
Is KSM going to go free? About a snowball’s chance in hell of that — because he’ll almost certainly be killed if it comes to that. Maybe under circumstances of just barely plausible deniability, and maybe it wouldn’t be right, but I think we both know that’s what would happen.
It is not for KSM’s benefit that a speedy, public, jury trial in which the prosecution is required to present its evidence (which can be barred as inadmissible if gathered improperly, e.g. through torture) and the accused is entitled to confront the evidence and cross-examine the witnesses.
It is for OUR benefit. We can’t AFFORD a government that can just grab people and stick them in cages without demonstrating their guilt of crimes, because that kind of government is well down the slippery slope that ends with gas chambers and ovens at the bottom.
If the federal government isn’t willing to reveal its evidence, well, too bad for the federal government’s case.
If the federal government isn’t willing to name its witnesses and stick them in suits and have them show up for court, that should be the federal government’s problem, not KSM’s, and certainly not ours.
The situation of the last 10 years is that the federal government wants to be allowed to conduct itself outside constitutional constraints on one hand, while having the results of that conduct treated as legitimate on the other hand.
That’s what we can’t afford.
If the federal government wants to run the US as a banana republic with an executive branch of unlimited power, unaccountable for its actions, let it unwrap that American flag from around itself and do so openly, and then we can openly decide whether to put up with it or overthrow it.
If, on the other hand, the federal government wants the credibility that comes with having written constitutional protections, it must be forced to ACTUALLY ABIDE BY THOSE CONSTRAINTS. That means public trial by jury whether it’s “convenient” or not.
5 around, yes, great point. We like Miranda as a clarification of constitutional safeguards (invented by the Supremes making law, as I recall, btw), but sometimes these complicated legal matters are outside the realm of political principles. Procedural wrangling — hate to say it — is sometimes best deferred to the lawyers. Politics can fix after the fact legal procedures that develop into dysfunctional patterns, but lay people weighing into legal proceedings may not know what the frak is going on, not getting the totality of the process and rules.
That’s why we need people like Squire Sarwark.
He aint closing Gitmo either , if Liberal/progressives arent completely disillusioned then theyre retarded or dead
OK, but what does the U.S. do with KSM?
Apparently he wasn’t mirandized, given due process, was subject to confession by torture,
didn’t get a speedy trial etc. There are several libertarian lawyers and judges out there: would a defense attorney be able to get KSM a get out of jail free card or not? And if that is what the LP is calling for, how well do you think that bodes for future electoral success? {I’m not saying electoral success should trump principles, just that we need to be aware of how unpopular that would make the LP.]
Counselor Sarwack, thanks for clarifying. For this layman, is it that Justice is serving as prosecutor, and the prosecutor has prerogative to, in essence, suggest the venue, with the Judge determining whether his/her venue is appropriate?
If so, does the AG have discretion to turn the case over to DoD? Is the theory that the 5a “except for” language allows the AG to do so?
It’s up to the Justice Department to decide where to bring the action, then a Judge decides whether venue properly lies in that particular court.
My reflex is to agree with RLW 100% on this effort. However, we Ls generally pride ourselves on being constitutional experts, but this particular instance unearths some areas where it’s not entirely obvious that pieces of the Constitution can be neatly applied. If anyone knows of a sober L legal theorist who has written on this case and addressed the gray areas, I’d like to see it.
A few comments and queries on this essay.
1) Yes, that BHO announces this decision and his decision to seek re-election on the same day is highly suspicious. The appearance that justice is taking a back seat to politics is offensive.
2) Excellent point that Congress has “interposed” itself in the federal judiciary. Of course, the same charge could be leveled at the Executive Branch…shouldn’t a federal judge be making the venue decision here?
3) In graph 3, Wrights quotes from the Declaration, not the Constitution. While there is precedent (as I recall) for incorporating the Declaration into the corpus of law, Wrights probably should have made that cite clearer.
4) This: “Detaining people on the field of battle may or may not be legal or necessary, but once they are detained and taken into custody they are entitled to the same rights as all human beings. The same inalienable rights our Founding Fathers enunciated in the Declaration of Independence and guaranteed with the Constitution.” is interesting. I’m not sure I quite agree. Yes, the Declaration speaks of “inalienable rights,” but the Constitution is a more practical document. The rights that the Constitution specifies or alludes to are more procedural than “natural” in meaning. For ex., the right to liberty is an abstract, natural right; the right to a speedy trial is procedural. If this case falls under the 6th Amendment as a “criminal prosecution,” then the rest of the language would seem to apply, at least on its face. However, which “district” did this alleged crime take place in? NY? VA? PA? MA? It surely did not take place at Gitmo!
The Constitution anticipates nothing even close to the concept of “enemy combatants.” Yes, 6A says “all criminal prosecutions,” but 5A says “…except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…” Read 5A as one will, but it seems clear that the Constitution does carve out an exception for some sort of separate form of military justice. The Constitution, then, specifies exceptions…”all” on one hand, “except in cases” on the other. Did “forces” only mean “US forces,” or might it extend to “enemy combatants”? I take no position on the matter at this time. Wrights later says, “The Constitution and the Bill of Rights don’t lose their meaning in time of war or crisis…,” yet 5A clearly alludes, at least, to SOME sort of carve out. Later, he says, “Neither Congress nor the president was given any authority or power to determine the mode of trial.” That seems true enough, yet 5A remains vague and indeterminate. Still further down, Wrights says, “The Constitution certainly does not give the president the authority to stack the court by appointing the judge (military officer), jury (military officers), prosecutor (military officer) and defense attorney (yes, another military officer).” Also true, but 5A remains a legal black hole.
5) Wrights’s, “If I do become president there is only law I shall recognize…” is language I’d lose in a NY minute. I strongly suggest depersonalizing this! If Wrights (or anyone else) gets the LP nomination, I and all of America will be virtually certain he or she will not “become president.” This language sounds delusional. The same point can be made by saying “A L president would recognize that the Constitution is the only law…” or something. Please!
6) Wrights’s last paragraph is truly beautiful! Truly!
Overall grade: B-. Easily could have been an A.
Nice piece Lee. Very Good!