Free the Nuremberg 24!

In his Impromptus column yesterday, Jay Nordlinger remarks on the success of the mainstream media in inverting reality. Jay offers as examples the widely promulgated images of Bush as stupid, Cheney as evil and Sarah Palin as a bimbo. With respect to Governor Palin, Jay asserts: “In a nation full of bimbos, Governor Palin is one of the few who aren’t.”

Democrats and their media adjuncts have worked an inversion of reality with respect to essential components of the war on terrorism, such as the detention of enemy combatants at Guantanamo. The Bush administration meticulously adhered to existing legal and historical precedent in crafting its actions. Nevertheless, Barack Obama picked up the theme of Bush administration lawslessness and peddled it to at will during the campaign.

In his interview with ABC’s Jake Tapper this past June Obama advocated an approach to combating terrorism that is supposedly more attuned to legal issues than the Bush administration’s:

It is my firm belief that we can track terrorists, we can crack down on threats against the United States. But we can do so within the constraints of our Constitution. Let’s take the example of Guantanamo. What we know is that in previous terrorist attacks, for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

Andrew McCarthy provided the necessary corrective:

In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).

The convicted spiritual mentor of the 1993 WTC bombers is Omar Abdel-Rahman (“the blind sheikh”). According to Obama, the blind sheikh was “incapacitated” and therefore rendered harmless by his conviction and imprisonment. In fact, however, with the assistance of attorney Lynne Stewart, Abdel-Rahman continued to wage jihad from behind bars, issuing instructions to his followers in Egypt. (Stewart has been convicted for the assistance she lent to Abdel-Rahman.)

Speaking at a town hall meeting in Pennsylvania, Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:

I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.

The Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot.

The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945. In the event, 24 defendants were brought before the first Nuremberg tribunal. Most were convicted.

Twelve of the Nuremberg defendants were sentenced to death and ten were hanged. (Martin Bormann was tried and and sentenced to death in absentia. Hermann Goehring cheated the hangman by committing suicide.) Under the standards advanced by Obama, they should have availed themselves of their right of habeas corpus and sought additional procedural protections.

In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging for the Guantanamo detainees. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene. The Nazi war criminals were given no access to American courts and no right of appeal to any tribunal.

Now the New York Times reports that Obama plans to issue an executive order on his first full day in office directing the closure of Guantánamo. According to the Times, Obama also appears “committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.” (The military commission system for trying detainees is the one enacted by Congress, but never mind.)

Obama acknowledges that immediate closure of Guantanamo would be a challenge. There is the question of what to do with those detainees. There is the problem of finding countries to accept those detainees who might be releaseed. There is the problem of trying those (apparently in American courts) who should continue to be held. There is the further problem raised by Pentagon intelligence asserting that 61 former Guantánamo Bay detainees, or about 11 percent of those who have been released, appear to have returned to involvement in terrorism.

The shibboleths and canards peddled by liberals in general and the maintream media in particular may alter our perception of reality, as Jay Nordlinger points out. But reality has its claims too and, to borrow a phrase, reality bites.

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