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The Constitutional Balance of Military Trials By: Joseph Klein
FrontPageMagazine.com | Tuesday, July 29, 2008

A partner at the esteemed law firm of Covington & Burling, who is representing a number of detainees at Guantanamo, decided recently to dramatize the plight of his clients by dropping his pants at a news conference.  This immature act was supposed to make us feel empathy for the humiliation supposedly experienced by the Muslim male prisoners who are subjected to full body searches and who – heaven forbid – are required to shave.

“I wanted to drive home the degree of humiliation that these searches cause by illustrating a typical body search,” said their zealous lawyer, David H. Remes., who went on to explain that “when the military punishes Muslim men by shaving off their beard, or by forcing them to disrobe — for a Muslim man that is a thousand times more cutting than a Westerner can imagine. And that’s what I was trying to dramatize.”

Remes described the shaving ‘punishment’ to a Yemini newspaper several weeks ago as “religious humiliation” that he compared directly to the “punishment…practiced by the Nazis against Jews in the 1930’s.”

Remes’ publicity stunt, and his obscene comparisons with the Nazis’ sadistic acts during the 1930’s that led up to the murder of six million innocent people in the Nazi death camps, only serve to illustrate the lengths to which the detainees’ attorneys will go to propagandize their cause.  While the exaggerated imagery is supposed to play to our sympathies, it often evokes the opposite response that ends up hurting their clients’ interests even more.

Likewise, the detainees have been hurt by their lawyers’ interminable appeals that have needlessly prolonged their confinement without trial.

Finally, after years of such delays, a military commission trial has actually commenced.  The latest delaying tactics by the attorneys for Salim Hamdan, the driver and confidante of Osama bin Laden who allegedly received weapons training in Afghanistan and transferred weapons to al Qaeda security, were rejected by Federal District Court Judge James Robertson.  Although Judge Robertson had gone along with Hamdan’s efforts to stop his military trial from proceeding three years ago, Robertson ruled this time that an injunction to stop the trial again in its tracks was inappropriate.  Judge Robertson correctly noted that this time “Hamdan is to face a military commission designed by Congress under guidelines laid down by the Supreme Court” and that Hamdan would still have the opportunity to challenge the verdict on appeal after his trial.

Let’s not fall for his lawyers’ beguiling argument that, since Hamdan is accused of crimes against the U.S. government, he should be accorded a normal criminal trial in a civilian court where all of his supposed constitutional rights can be protected in a manner that is not possible in a military proceeding.  Hamdan is no ordinary criminal.  He was captured in Afghanistan in November 2001.  There were SA-7 surface-to-air missiles in his car at the time he was captured.  In other words, Hamdan was captured with lethal weapons under his control in the midst of a battle zone where U.S. military forces had been sent to uproot the terrorist network that had launched the 9/11 attack on our homeland.  Under such circumstances, Hamdan does not deserve all of the rights accorded in the civilian courts to a normal criminal defendant.  His military trial is already demonstrating how a fair balance can be struck that reflects the circumstances of his capture and the different type of threat that he and his fellow detainees pose to the American people than the garden variety criminal taken into custody by our civilian police.

For example, Capt. Keith J. Allred, the military judge, handed Hamdan an important legal victory at the outset of his trial by ruling that certain of his confessions were inadmissible because they appeared to have been extracted through coercive means.  However, the judge at the same time rejected the argument of Hamdan’s attorneys that Hamdan should enjoy the same broad constitutional right against self-incrimination as a criminal defendant does in a U.S. civilian court.  The judge rejected the defense argument that Guantanamo was inherently coercive.  He decided to allow some of Hamdan’s statements to be introduced into evidence by the military prosecutors as long as they prove that he had made them voluntarily, even if Hamdan had not first been informed of the standard right of criminal defendants being tried in civilian courts to remain silent.

If Judge Allred had ruled in Hamdan’s favor on the broad self-incrimination issue, any further evidence such as documents or computer records gathered as a result of his self-incriminating statements would also have to be excluded from the trial because, in the lingo of constitutional lawyers, the evidence would have been considered the fruit of the poisonous tree – i.e., evidence gathered with the aid of information obtained ‘illegally’ as a result of  statements made by the defendant in custody before he was advised of his right to remain silent.  That ruling, in turn, would apply to similarly obtained evidence that the prosecutors might plan to use against the 9/11 mastermind Khalid Sheikh Mohammed when his turn for a trial comes up.  Indeed, if Osama bin Laden himself were caught and put on trial, his apologists would undoubtedly use such a precedent to place the man who declared war on the United States on the same constitutional level as the innocent American citizens whom he had ordered killed in the 9/11 invasion of our homeland.

The terrorist suspects’ lawyers argue that the Constitution’s full panoply of legal protections must apply identically to all persons subjected to our government’s legal authority since the term “person” is used in the 5th and 14th amendments to the Constitution.

In support of their fallacious position, they point out that the 5th amendment states that no “person” shall be “compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”.   Of course, this begs the question as to whether we are dealing with a standard criminal case in the first place.

Furthermore, the terrorist suspects’ lawyers argue, the 14th amendment (which the Supreme Court has applied to the actions of the federal as well as state governments) says that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The lawyers defending Hamdan and other Guantanamo detainees have taken the term “person” as used in these constitutional provisions completely out of its historical and textual contexts. 

For example, it is pure sophistry to ignore the fact that the term “persons’ is used in the sentence of the 14th amendment immediately following the above-quoted equal protection clause in a way that could not possibly be construed as referring to non-resident aliens:  “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

The original intent of the 14th Amendment was to ensure that the former black slaves freed as a result of the Civil War and living within the jurisdiction of the United States (including particularly in the Southern states) were deemed of legal equal status with their former white masters.   While the Amendment’s reach has since been extended to outlaw invidious discrimination in other situations under the core principle of equal protection of the laws, including in the continuing battle to fully secure equal rights for the African-American population, it is not a foreign enemy protection clause.

The term “person” in the singular or plural form is used in contexts throughout the Constitution as referring to the constituent members of the collective populace of the United States.  Whether we examine each clause containing this term or consider the purpose and structure of the Constitution as a whole, there is simply no basis for inferring that either the foot soldiers of al Qaeda like Hamdan or the leaders of al Qaeda like Khalid Sheikh Mohammed should morph from enemy combatants to persons entitled to all of the Constitution’s protections that are granted to Americans simply because the alien detainees are now within the custody of the U.S. government.

The Constitution is a compact between the people of the United States and their government, containing mutual rights, powers and duties.  Indeed, the preamble of the Constitution states its underlying purpose:  "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (emphasis added) 

Alien enemy detainees such as Khalid Sheikh Mohammed and Hamdan can by no stretch of the imagination be considered among the people of the United States who are part of this compact and entitled to all of its protections.  In fact, they threaten the “blessings of liberty” and “common defense” which the sovereign people of the United States have empowered their government, operating under the specific authority conferred by the Constitution, to secure.

Even assuming that Khalid Sheikh Mohammed, Hamdan and their fellow alien enemy detainees were intended to be within the scope of “persons” deserving of some measure of constitutional protection, the government is constitutionally permitted under Supreme Court precedents to distinguish among classes of persons where a compelling public interest is involved.   No public interest is more compelling than protecting our homeland from an external enemy that has already attacked here once, with the intent and wherewithal to do so again, and ensuring the safety of our soldiers who are fighting this enemy.

Sheikh Mohammed and Hamdan were certainly, in varying degrees, affiliated with the terrorist network that constitutes the enemy we are now fighting.  They were picked up in the course of our battle against this enemy on the terrorist network’s home turf.  The level of their involvement remains to be proven.  The military trial system that is finally being permitted to operate under legislation passed in accordance with Supreme Court guidance will determine their culpability while incorporating fundamental protections for the defendants that include a presumption of innocence, the right to a public trial, the exclusion of coerced confessions, the right to counsel and the right of appeal to civil courts.  If the military trials fall short, the civil courts will have the means to provide redress.  That is far more protection than Hamden or Mohammed would receive in their own countries’ judicial systems, not to mention what our soldiers could expect to receive if they were ever captured by al Qaeda. 

As has been often said, the Constitution is not a suicide pact.  Jihadists like the highjackers of 9/11 may want to kill themselves while wreaking terror in the service of Allah.  However, we do not have to put our nation’s freedoms on suicide watch by letting our enemies and their misguided lawyers turn our Constitution into another weapon to shield those who threaten our way of life and its blessings of liberty for ourselves and our posterity.

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