18 February 2010
By Jacob G.
Hornberger I tuned into conservative Bill O’Reilly’s show on
Fox News last night to see what libertarian John
Stossel had to say, and in the process I was treated
to one of the most inane arguments I have ever heard
in my life, not from Stossel, of course, but rather
from arch-conservative Ann Coulter, who was appearing
as a guest in a separate segment. So, Coulter was trying to distinguish George W.
Bush’s treatment of shoe-bomber terrorist Richard
Reid, an admitted member of al-Qaeda who was treated
as a criminal defendant, from Obama’s treatment of
accused Detroit bomber Umar Farouk Abdulmutallab, who
is being treated in the same way. Coulter suggested that the reason that Bush treated
Reid as a criminal defendant rather than as a enemy
combatant was because the Pentagon’s Gitmo prison camp
was mired in litigation, including Supreme Court
rulings adverse to the government, followed by
congressional approval of a military tribunal system,
followed by more litigation. Coulter suggested that
all this litigation mess motivated Bush to prosecute
Reid in the federal criminal justice system rather
than in the military-tribunal system. Like I say, ridiculous and inane! Litigation mess
or no mess, there was nothing preventing Bush from
treating Reid as an enemy combatant. After all, didn’t
he continue treating Jose Padilla and Ali-al-Marri as
enemy combatants for years, notwithstanding the
litigation mess, not to mention all the men held as
prisoners at Gitmo for several years while the
litigation was taking place? We didn’t see Bush
transforming them into criminal defendants because of
the litigation mess, did we? In fact, the only reason
that Bush suddenly converted Padilla from enemy
combatant to criminal defendant was to avoid a Supreme
Court review of a Court of Appeals decision upholding
Padilla’s status as an enemy combatant. What Coulter and O’Reilly obviously want to avoid
confronting is the wholesale transformation of our
constitutional order that Bush and his people effected
after 9/11, without even the semblance of a
constitutional amendment. It’s a transformation that
even makes FDR’s infamous court-packing scheme look
like child’s play, a transformation that Obama has
obviously embraced with relish. Terrorism is a federal crime listed as such in the
U.S. Code. That’s why suspected terrorists have always
been indicted and prosecuted in federal district
court. Examples include Ramzi Yousef, the 1993 WTC
bomber, Zacharias Moussaoui, the 9/11 conspirator
bomber, and Timothy McVeigh, the Oklahoma City bomber.
What changed? After 911, Bush and Vice President
Cheney simply decided to call 9/11 an act of war,
which they claimed empowered them to treat suspected
terrorists as enemy combatants, subject to being
turned over to the military and denied all the
procedural rights that criminal defendants had long
been accorded. That’s it! Just a simple decision by Bush and
Cheney, but one that constituted a revolutionary
transformation of America’s constitutional order.
Cheney confirmed this in his recent interview with ABC
News’ “This Week”: “I think it’s — it’s very important to go back and
keep in mind the distinction between handling these
events as criminal acts, which was the way we did
before 9/11, and then looking at 9/11 and saying, This
is not a criminal act, not when you destroy 16 acres
of Manhattan, kill 3,000 Americans, blow a big hole in
the Pentagon. That’s an act of war. And what the
administration was slow to do was to come to that —
that recognition that we are at war, not dealing with
criminal acts.” Yet, in deciding that this particular crime was an
act of war rather than a criminal offense, what Cheney
failed to point out was that he and Bush did not
totally abandon the criminal-defendant route
established by the Constitution. After all, let’s not
forget that after making this momentous decision, they
actually treated 9/11 co-conspirator Moussaoui as a
criminal defendant, securing a federal grand-jury
indictment against him and prosecuting him as a
criminal defendant. So, why have both Bush and Obama continued to treat
some suspected terrorists as criminal defendants.
Because they’re still not sure how far to push their
new order of things. Their ideal is obviously to have the power to round
up anyone they want, including Americans, incarcerate
them, torture them, and even execute them, all without
a genuine trial and due process of law and all by
simply labeling people terrorists But to ensure that Americans don’t get too alarmed
over this wholesale transformation of their
constitutional order, as Americans did, for example,
when President Franklin Roosevelt proposed his
infamous court-packing scheme, U.S. officials are
still preserving and using the judicial system
established by the Constitution in terrorist cases
while no doubt hoping to abandon it entirely at some
point in the future for full military jurisdiction
over terrorist cases, including those involving
Americans. Too bad that O’Reilly didn’t ask Coulter to justify
this dual-track, ad hoc, arbitrary system established
by Bush and continued by Obama. It would have been fun
seeing her come up with a justification for it. Jacob Hornberger is founder and president of The
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