By Ed Gold
After all the fine speeches about the rule of law, adherence to the Constitution, our nation’s devotion to civilian leadership and our federal court system, reports from Washington indicate Obama may be caving in to the Cheney gang, which insists all jihadists accused of criminal activities should be tried before a military tribunal rather than a federal court.
After much study, Attorney General Eric Holder last fall recommended that Khalid Sheikh Mohammed, allegedly the master planner of the 9/11 disaster, and four of his cohorts be tried in federal court, in New York, near the scene of the crime.
Ironically, this was the same legal position taken during the Bush administration when, in 1993, the blind sheikh and his followers did the first bombing at the World Trade Center. They were tried in federal court, in New York near the scene of the crime. Justice was served and the sheikh and his aides all received hefty prison terms.
There was no temper tantrum at that time from the far right, which now contends that trying Islamic criminals in a civilian court means you are soft on national security.
The first setback for the Holder decision developed in regard to the trial location. Mayor Bloomberg at first backed a New York trial, but then pulled the rug out from under Holder by reversing himself, after hearing protests from unhappy realtors. He also mentioned security problems, as if the city was incapable of keeping the alleged terrorists from roaming city streets. So the Obama administration beat a hasty retreat and said the trial would have to be held elsewhere.
But that wasn’t enough for the Cheney gang. They insisted that prisoners at Guantanamo represent a new category called “enemy combatants,” who do not deserve criminal trials in civilian courts, but instead should be tried before military tribunals.
One problem with military trials is that some democratic nations will not extradite any of our terrorist suspects or provide trial evidence unless the accused go before a civilian court.
But more important, civilian court trials have proven very successful. More than 300 alleged terrorists have been found guilty by federal court juries. Only three accused terrorists have been tried by the military and two of them received very light sentences.
Neither the success of civilian trials, nor the fact that civilian lawyers have been much better prepared to handle criminal cases, has had any impact on the nation’s yahoo membership. Senators Lieberman and McCain are now preparing legislation that would prevent any civilian trials for alleged terrorists!
The attack on civilian prosecution of suspected terrorists has now taken a more hysterical turn. Liz Cheney, who thinks her father is commander in chief, claims that Justice Department attorneys who have provided legal assistance to Guantanamo prisoners — an American principle that all those accused of crimes deserve legal assistance — are in fact Al Qaeda agents! Even some Republicans have winced at that nonsense.
Should Obama remove criminal trials from civilian jurisdiction, millions of Americans who had hailed his defense of due process and his promise to resist attacks from the militant right will feel betrayed.
The A.C.L.U. summed up that feeling in a full-page ad in the Times:
“Many of us,” the ad stated, “are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. … Our criminal justice system will resolve these cases more quickly and more credibly than the military commission.”
Obama, the A.C.L.U. adds, “must decide whether he will keep his solemn promise to restore our Constitution and due process… .”
Obama said at his inauguration that supporting the rule of law would be trying, but that he was up to the task. Now he has the chance to prove it.
