Matt Yglesias screeches about the conservative uproar over the Undiebomber unconstitutionally given rights by Attorney General Eric Holder, trying to say that the terrorist is the same type of criminal as any other that goes through the civilian criminal justice system. The problem is that he utterly refuses, like so many leftists, to consider that he is absolutely wrong. Yglesias falls into the pattern leftists like him indefinitely maintain, one that is explained extremely well by Charles Krauthammer.
Below, I explain how Yglesias and every other leftwing “civil liberties” charlatan (especially Glenn Greenwald), including those on the Supreme Court, have completely undermined the rule of law of the United States, and putting at risk those rights that are supposed to be guaranteed under the U.S. Constitution. It’s long, but I believe well worth the full read. Full disclosure: I am not, nor ever been, a lawyer or constitutional scholar, nor formally studied the Constitution or the law. Despite how leftists have tried to complicate the Constitution and the law, reading, comprehension, and common sense can get through what looks like an endless muddle.
As Andrew McCarthy explains [emphasis mine]:
The U.S. Constitution is a compact between a primary source of power, the people of the United States, and the government they created. It is not a treaty between the United States and the rest of the world — indeed, it explicitly presumes that the rest of the world will include enemies of the United States…
In the Framers’ ingenious construct, the courts of the United States are supposed to be a bulwark protecting members of the uniquely American community — i.e., citizens of the United States and those aliens who, by their lawful participation in our national life, have immersed themselves into the fabric of American society — from the excesses of an oppressive executive or a legislature insufficiently heedful of their fundamental rights. It is the institution that ensures the law and order a free people must have in order to thrive.
But in the la-la-land of leftists, the Constitution does somehow extend to those individuals who are part of a foreign power the United States is at war with. Worse yet, leftists say Al Qaeda terrorists like the Undiebomber are allowed those rights because they don’t wear uniforms (in violation of the laws of war) and are therefore civilians, accorded all the rights of any alleged criminal arrested by the government. Leftists say that the fact that the U.S. is at war is immaterial. They are most assuredly wrong.
First, we have to go back a little to explain where we are as it relates to the Undiebomber. After the 9/11 terrorist attacks, the government passed the AUMF, a de facto declaration of war against those who perpetrated them. By tradition, precedence, and the laws of war, President Bush determined that any suspected foreign terrorist captured anywhere (the AUMF is not restrained by geography) could be held until such time that hostilities cease, whenever that may be. He also issued an executive order authorizing the military commissions that were to be used to prosecute these terrorists. Section 1(f) stated that under his authority as President, he was authorized to set the rules for these commissions as stated in Art. 36 of the Uniform Code of Military Justice (UCMJ) because it was not practicable to apply regular criminal procedures for these prosecutions (ignore the references to Chapter 47A since those were added by the Military Commissions Act of 2006).
The left had a fit. Lawsuits were filed and the whole process was thrown into an uproar; any prosecutions by the commissions were to be put on hold. Remember what I said about Yglesias and the lefties above; they believe foreign unlawful enemy combatants captured during wartime are the same as civilians being accused of committing any other crime. The Supreme Court, beginning in 2004, issued a series of rulings that completely undermined the President’s Commander in Chief powers and the laws that had been passed by Congress. Beginning with Rasul, the 6-3 majority (Stevens, O’Connor, Breyer, Ginsburg, Souter, along with a concurring opinion by Kennedy) claimed that federal courts were open to review habeas corpus petitions by terrorists residing in Gitmo who claim they were being illegally held. The majority claimed Congress never suspended habeas corpus and used a neat trick by saying that the portion of Cuba where Gitmo sits, being a U.S. military base, is like sovereign U.S. territory (I’m sure the Cuban government doesn’t think so, but the Court didn’t ask them). On the same day as Rasul, the Court ruled in the Padilla and Hamdi cases, with only the latter holding any relevance. With Hamdi, an American citizen claimed the government couldn’t treat him like an enemy combatant; this was actually a win for the government, even though Hamdi himself was eventually released. The majority ruled that an American could be considered an enemy combatant provided there is a review to determine it (Scalia and Thomas wrote blistering dissents, worth reading). So after Rasul and Hamdi, the Defense Department established the Combatant Status Review Tribunals (CSRT) to determine which Gitmo terrorists would remain imprisoned and potentially prosecuted under the Bush military commissions, and Congress passed the 2005 Detainee Treatment Act (DTA), authorizing that no habeas petitions could be filed in the regular courts by foreign terrorists and that only the D.C. Circuit Court of Appeals could hear appeals to certain cases pertaining to Gitmo terrorists.
It wasn’t good enough for the left. More lawsuits were filed, thus extending the delay of any commission prosecutions. In 2006 came the egregious Hamdan ruling. With Hamdan, the majority first stuck to its guns regarding Gitmo being de facto U.S. territory, thus overturning the no habeas for Gitmo terrorists section in the 2005 DTA. Second, they threw out the Bush commissions because the majority, without any appropriate legal precedent, claimed that the Bush administration wasn’t justified using the where practicable allowance in Art. 36 of the UCMJ to set it’s own rules for the commissions. Lastly, and this is the worst part of the ruling, terrorists were given protection by the Geneva Conventions. In a complete misreading of all four conventions the U.S. is required to adhere to, the majority said the Bush administration violated what is called Common Article 3, saying that the Bush commissions were not part of the regular legal procedures in place that are authorized to adjudicate terrorism suspects; they would have to follow regular court martial procedures. However, a court martial, like any civilian trial, assumes the defendant has all the due process rights with regards to discovery, evidence, etc. So, in effect, these terrorists, these foreign unlawful enemy combatants, have the same rights as you or me as Americans. But the majority in Hamdan totally ignores that terrorists are covered under Art. 44 of the 1977 Protocol I that was added on, which definitively means that these terrorists aren’t civilians as specified in Convention IV. However, the U.S. never signed or ratified Protocol I and it isn’t relevant to U.S. law. Therefore, since terrorists aren’t covered under either Conventions III (covering uniformed soldiers) or IV, and since Protocol I covering terrorists isn’t a part of U.S. law, Common Article 3 should never have applied and the original commissions Bush established should have been left in place. But to satisfy the activists on the Supreme Court, Congress passed the Military Commissions Act of 2006 (2006 MCA). As with the 2005 DTA, there were habeas restrictions, plus Congress codified the military commissions.
More lawsuits were filed, further extending the delay of commission prosecutions. Finally in 2008, the last of these outrageous decisions was made, the awful Boumediene ruling. The majority put its foot down regarding habeas corpus rights now given to foreign unlawful enemy combatants. However, they did say the commissions as specified in the 2006 MCA were allowed. The government removed all habeas restrictions and supposedly “refined” the commissions with the Military Commissions Act of 2009 (2009 MCA; it is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010).
The big problem with all of this is that the Supreme Court has taken the Geneva Conventions, an agreement between governments, and used them to extend the individual rights guaranteed in the U.S. Constitution to not only those who are not governed by the laws of the United States, but to those who commit illegal acts of war upon the United States. They’ve added a rewrite of the Conventions as well as the Constitution. Talk about judicial activism on steroids.
That brings us to the Undiebomber. As we know, he was injured, arrested, interrogated for less than an hour, then some time later Mirandized by order of Attorney General Eric Holder. As our illustrious AG provided in his recent angry letter, the only legal reasoning used to justify the action was because Bush did it (through a 2003 Presidential Directive). The problem with this thinking is that the last foreign terrorist (that I can think of) who tried to commit an overt act of terrorism (e.g., trying to kill people) was Richard Reid the shoe bomber back in 2001. But that was before the original commissions were put in place and before the detention facility at Gitmo was opened for business. So there really wasn’t much the Bush administration could with Reid other than charge him like they did. But it’s now more than eight years later and neither Holder nor Teh Won had to have treated the Undiebomber the same way.
Here are the due process considerations that could have taken place if the Undiebomber would have been treated like the foreign unlawful enemy combatant that he is, especially as they relate to the fact that the U.S. is still at war. By law, it is up to the CSRT to say whether someone is an enemy combatant and a member of a foreign power the U.S. is officially at war with (the 2001 AUMF, in this case). That means that the Undiebomber, even though captured in the U.S., can be held until such a determination is made without charges being filed. If that determination is made, and because the Undiebomber doesn’t fall into the description of an American as specified in Hamdi, he can be held until hostilities cease between the U.S. and the powers it is at war with. That’s it; that’s all that is necessary to satisfy due process. Had the Undiebomber been a lawful enemy combatant, a uniformed soldier, he wouldn’t even have habeas rights.
However, the Undiebomber was not only an enemy combatant, but an unlawful enemy combatant because he wasn’t a uniformed soldier and because he deliberately targeted civilians in violation of the laws of war. As soon as the Undiebomber strapped on a bomb to blow up an airplane, he became an enemy combatant; and because the U.S. is at war, that plane became a battlefield, just like Flight 93 was on 9/11. That means the U.S. can hold the Undiebomber until hostilities cease, or he is released due to a successful habeas petition he can file as a result of the wrongfully decided Boumediene. It also means the government can question the Undiebomber all the while he is in custody, without having to charge him with anything. If he is charged with violating the laws of war, and because he is not an American as defined by Hamdi, he can be sent to Gitmo and prosecuted in a commission as specified in the 2009 MCA, subject to the rules and regulations of those courts. That is the extent of the due process that must be observed for unlawful enemy combatants. Other than habeas rights given the Undiebomber, the terrorist has no rights guaranteed to an American under the 4th, 5th, 6th, or 14th Amendments while the U.S. is at war.
In fact, charging and trying the Undiebomber under the civilian criminal justice system, but especially trying KSM and the other 9/11 terrorists in the civilian courts, undermines the rights of every American. Any procedure producing the evidence necessary to convict these war criminals could potentially be used to convict Americans for shoplifting or any other crime. I mean, Teh Won said he wanted his administration to break away from what was done by the Bush administration, but left just about all of it in place. Now he wants to add on to it in the civilian courts, even though he says (without any justification) it won’t affect the rights of Americans. He just isn’t believable. Granted that in peacetime, a foreign person committing a crime is guaranteed rights, but clearly not all of them. But in wartime, a foreign unlawful enemy combatant belonging to a group the U.S. is at war with has none, except those given by the Supreme Court in Rasul, Hamdan and Boumediene.
Thanks to these three rulings, the activist Justices on the Supreme Court gave unlawful enemy combatants like the Undiebomber terrorist rights no other such individual ever had before in the history of the world. To again quote Andrew McCarthy (from the same link as earlier), the Supreme Court [emphasis from original]:
…put on its we-are-the-world blinkers and unilaterally decreed that this was what its rarefied conception of due process demands: a process that assumes, to borrow an increasingly-apt phrase, that every organism on Planet Earth is an American waiting to happen, vested with fundamental rights — whether of constitutional, statutory, natural, or even international pedigree — accorded ever more generously by a society that is enlightened . . . and suicidal.
In such a place, there is no area — geographically or substantively — where the courts are not supreme. It is often said that the judicial function is to say what the law is, and the law, it turns out, is everywhere. What difference should it make that mere professional soldiers thought the people shooting at them were the enemy? It’s just not fair to leave it at that. It’s offensive to our bien pensant sensibilities that anyone could be really deemed an “enemy” until he’s had his day in court — that is, in our courts, against our government, in the middle of a war against us.
And now thanks to Holder and Obama, the Undiebomber was given the additional right to remain silent.
Teh Won has given Holder a ton of power no Attorney General has ever had. With what’s going on with determining where the 9/11 terrorists can be tried to affecting how intelligence through interrogation is gathered, the AG has been given the authority to act like the loose cannon that he is, while Obama has been satisfied to take a back seat to the whole thing. Harry Truman famously said “the buck stops here,” stopping with him. With Teh Won, the buck stops…somewhere else.
What it also means is that Teh Won and Holder are acting like the leftist “civil liberties” charlatans who have just about thoroughly undermined the rule of law in this country, and put the rights of all Americans at risk. But because they don’t even consider the arguments brought forth by conservatives, they are in complete denial about what they are doing.