This column by ACRU Senior Legal Analyst Ken Klukowski was published March 8, 2013 on Breitbart.com.
Supporters of national security and the Constitution are rightly outraged about learning that Sulaiman Abu Ghaith–the al Qaeda spokesman who is also Osama bin Laden’s son-in-law–appeared today in federal court in New York City. And it raises the next stage in the critical debate that started with Sen. Rand Paul’s filibuster earlier this week.
Suddenly, the public learned that a senior member of al Qaeda–who furthermore is a member of bin Laden’s immediate family–is right here in the United States. He was brought before a judge in the U.S. District Court for the Southern District of New York on charges of conspiracy, essentially being put on the hook for the deaths of almost 3,000 American citizens on 9/11. And he pleaded not guilty.
Under a recent (and terribly wrong) Supreme Court precedent, Boumediene v. Bush, there would be no question that enemies captured by our military were not entitled to the due-process restrictions of America’s court system. Then in 2008 the Supreme Court held 5-4 that the writ of habeas corpus extends to terrorists held by the U.S. military on Cuba’s foreign soil at our military base in Guantanamo Bay (Gitmo). All the conservative justices (including John Roberts) dissented, arguing this overturned 200 years of precedent and terribly weakens the ability of our military to win wars.
This is even worse than that. By bringing this terrorist onto American soil and charging him in federal court, the full range of protections in the Bill of Rights applies. Abu Ghaith must now be presumed innocent. The government is bound by the tremendous restrictions of the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. He was reportedly held for some time in Turkey, but anything he confessed under what was likely the very unpleasant treatment he got in a Turkish prison (maybe including torture?) should be inadmissible in federal court.
He has the right to remain silent, the right to an attorney, the right to a jury trial, the right to face anyone who wishes to testify against him in open court, the right to explore those witnesses’ backgrounds to attempt to discredit them in court. (Of course, those people’s identities would probably become public, and they may now become targets for terrorists seeking revenge.)
The government will have to prove every element of his involvement in the 9/11 attacks beyond a reasonable doubt under all those restrictions listed above, plus many more, to the satisfaction of every juror. And if the government fails on any of those technical issues or cannot produce airtight evidence, then if a single juror has any doubt about Abu Ghaith’s guilt, he cannot be convicted and brought to justice.
This is a disaster. He is a military target and an enemy combatant, and should have been tried by a military commission on foreign soil. Regardless of the outcome (which could take many years in any event), putting this terrorist into our civilian system designed for our citizens is wrongheaded on a galactic scale.
This also paints President Obama’s administration–including Attorney General Eric Holder–as nothing short of schizophrenic. How is it that the government has power to sometimes kill American citizens with a drone strike, but needs to put foreign terrorists in civilian court with all its limits on government power?
But this also revisits the issues spotlighted by Rand Paul’s filibuster this week of John Brennan’s CIA nomination. I first wrote about how Paul might not understand the tremendous differences under the Constitution between military operations and law enforcement prosecutions, then later wrote praising Paul for the things he was getting right, but raising questions about issues he might be getting wrong.
As I fully explore in my book on constitutional conservatism, Resurgent, the Constitution sets up a completely different system for military targets than it does for criminal defendants. One is designed primarily with American citizens in mind, while the other is designed for foreign enemies. One errs on the side of liberty–often allowing guilty people to go free, while the other is designed to protect our nation–even at the cost of collateral damage.
The Constitution is not a suicide pact, as Justice Robert Jackson famously wrote. This administration needs to be held to every restriction the Constitution imposes on government power. But some civil libertarians need to seriously study the original meaning of the Constitution’s separation of powers, and realize that the Constitution doesn’t automatically mean whatever diminishes government power.
We need to be protected by abuses from our own government. But we also need to be protected from foreign terrorists who want to kill as many of us as they can–including our children, even in our own homes. Properly interpreted according to its original meaning, the Constitution achieves both.