Speaking at a town hall meeting in Pennsylvania during the presidential campaign in June 2008, Barack 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.
Obama’s comments derive from what I facetiously call “the higher wisdom” that fueled his campaign and that is now operative in his administration. Attorney General Eric Holder perfectly reflects it.
In designating the mastermind of 9/11 and his co-conspirators who are detained in Guantanamo for trial in federal court in Manhattan, cloaking them with the rights of American citizens under the Constitution of the United States, Holder sought to give them their “day in court.” He also sought to “t[each] the entire world about who we are but also the basic principles of rule of law.”
The only appropriate response to Obama’s campaign comments on Boumediene is: “Not true.” The higher wisdom is founded on false precepts. The Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. Obama to the contrary notwithstanding, the Nuremberg defendants weren’t brought before a federal court or cloaked with the protections of the United States Constitution.
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 Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. 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. Their rights before the Nuremberg tribunal were governed by the charter annexed to the London Agreement.
The charter’s “fair trial” provision was extraordinarily brief. It required only the preparation of an indictment (to be translated into the defendant’s language) and accorded defendants an explanation relevant to the charges made against them in the proceedings; the translation of the proceedings into defendants’ language; the right to conduct their own defense before the tribunal or to have the assistance of counsel; the right to present evidence at the trial in support of his defense, and to cross-examine any witnesses testifying against him.
The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. The charter provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”
Following Obama’s higher wisdom, Eric Holder established an insane protocol. It is titled “Determination of Guantanamo Cases Referred for Prosecution.” The protocol adopts a presumption that explains the cases of KSM et al. and Umar Abdulmutallab.
The second paragraph of the protocol sets forth the “Factors for Determination of Prosecution.” It provides: “There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution.”
The Obama administration’s determination to give KSM and Umar Abdulmutallab their “day in court” is untenable. It is untenable as a matter of law and it is untenable as a matter of tradition. It is indeed, as Thomas Sowell holds, an obscenity. It is also untenable as a matter of politics.
Congress has adopted a system of military commissions for unlawful enemy combatants that conforms to the Supreme Court’s requirements. That is where the trials of KSM and Abdulmutallab belong.
The planned trials of KSM and Abdulmutallab in federal court join related errors committed by the Obama administration. These errors include the announced closure of Guantanamo, the repatriation of Guantanamo detainees to Yemen and Saudi Arabia, the termination of the CIA’s program of enhanced interrogation, the release of Justice Department memos that had authorized the CIA interrogation program, and the reopening of previously concluded investigations into CIA officers.
As word comes that the Obama administration has abandoned its plan to try KSM et al. in New York City, it lies upon us to recall the source of the error and the related errors that afflict us. The “presumption” that unlawful enemy combatants are to be treated like American citizens is an offense against law, tradition and reason, but it does not stand alone, and it does not derive in the first instance from Eric Holder.