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Feb. 11 2010 - 4:16 pm | 3,341 views | 5 recommendations | 24 comments

True conservatives condemn military tribunals for terrorists

When is a conservative not a conservative?

When they do a 180 degree turn away from their own ideology in order to curry populist political favor.

As the White House engages in a war of words with the likes of Sen. Kit Bond (R-Mo), Rep. Peter King (R-NY) and Rep. John Hoekstra (R-Mich.) – each a self-professed, committed ultra-conservative – over the Mirandizing of the Christmas Day bomber and the failure to place him into the military justice system as a way of avoiding rights due him in the Article III courts, none of these players seem to realize they have completely switched ideological sides.

Just ask Fox News Commentator and long-time conservative judicial and legal voice, Judge Andrew P. Napolitano.

According to Judge Napolitano, an avowed disciple of Barry Goldwater and Ronald Reagan, the very concept of a military tribunal for defendants of a “war on terror” is a blatant disregard of the U.S. Constitution.

The Judge’s argument is simple –

It’s a violation of the Constitution to use the panels without a declaration of war — and just calling it a ‘war’ on terror doesn’t count.
Via Los Angeles Times

Napolitano argues that no president has yet to appear before Congress to ask for a Declaration of War – nor has Congress ever made such as declaration. Therefore, there can simply be no Constitutional justification to create military tribunals to try alleged enemy combatants  as they are enemy combatants in a war that Congress has never declared.

This is not simply the opinion of one conservative.

Prior to 9/11, there had not been a military tribunal in America since WWII when it was used to try Nazi saboteurs who had came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., put on civilian clothes, and set out on a mission to blow up strategic U.S. targets. When the Nazis were caught, President Roosevelt determined that they should stand trial before a military tribunal for two reasons – Congress had declared war against Germany and the saboteurs had broken the rules of war.

In upholding Roosevelt’s actions, the Supreme Court ruled in Ex Parte Quirin that a formal declaration of war is the legal prerequisite to the government’s use of the tools of war.

And that is exactly how it was done before the Bush Administration decided to take their own novel approach, declaring that the Constitution allows for the use of military tribunals, a ‘tool of war’, whenever the president decides to call something a “war.”

As we know, every Supreme Court decision on the subject since 9-11 has come down against the constitutional interpretations of the Bush Administration.

For those who would argue that the Supreme Court of 1942 was operating in a world where  it was far simpler to identify an enemy nation rather than the terrorist groups of this era and, thus,  could not have projected the change in the future of warfare, this is not an unreasonable point. However, it is up to Congress to determine that the time has come to issue a Declaration of War against this new style enemy-not the Court. Until Congress decides to issue such a declaration, there is nothing that would change the Court’s precedent which remains  clear – a war is not a war until Congress (not the president) declares it a war.

So how do lifelong conservatives manage to cross over into highly questionable ideological and anti-Constitutional territory without being called out for desertion of their conservative principles?

By focusing on populist reaction rather than the responsibilities of their conscious and their office.

Rather than use their roles as national leaders to instruct on the importance of supporting the key principles behind the American experiment, today’s politicians find it easier, in a world of perpetual campaigning, to simply voice the anger they think their constituents want to hear. This is not leadership – this is campaigning for votes.

American conservatives would do well to listen to the words of Judge Napolitano as he makes his case in support of strictly construing the Constitution.

Here’s a sample –

The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government’s appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process — be that person a citizen or an immigrant, someone born here, legally here, illegally here or whose suspect behavior did not even occur here.
Via Los Angeles Times

Those who support the Constitution can’t have it both ways. You either respect the rule of law, even when it is inconvenient and a bit scary, or you don’t. That’s the whole point of having a Constitution.

And for those of you who are buying into the GOP and Tea Party temper tantrum over where terrorist trials should be held and what rights do or do not attach to foreign nationals accused of terrorist crimes against America, I challenge you to examine your own commitment to the ideals, principles and laws of the United States. If you don’t like the way the Constitution treats these matters, there is a process to change these things. Either work to amend the Constitution or quit professing your strong belief in the document at the same time you seek to undermine its most basic dictates.

Your leaders are hustling you, turning their alleged belief system inside out to score points with populist outrage – and turning the Constitution inside out in the process. These leaders are nothing more than scared little men and women caving into popular fear rather than doing their jobs.

Sure it’s a bit frightening to hold a terrorist trial in the middle of New York City. But the law says that this is the way it is supposed to be done in this country.  Of course we want to get as much information out of an alleged terrorist in order to help prevent other attacks. But if we sell out our core values in the process, then we’ve already been defeated.

Let’s be honest. What all of this comes down to is the desire to protect one’s life at the cost of protecting our American principles. It’s a good thing our greatest generation didn’t see it this way or we’d all be speaking German.

Don’t allow yourself to be suckered into the politics of the day. Our politicians are not leading – they are pandering. If we buy into the fear they sell in order to get our attention, then we become the same chicken-s—ts they are.

Americans are still better than that.


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  1. collapse expand

    This reminds me of one of Palin’s recent – and very scary – jabs at Obama: “We need a commander in chief not a professor of law standing at the lectern.” I think I saw it first in one of her Facebook postings, but she put it in her Tea Party speech last week, and it got a huge response. To me, she’s basically saying a President should act first and figure out the constitutionality of his actions later, if at all. It brings to mind Nixon’s famous dark ejaculation, “If the president does it, that means it’s not illegal.”

    It’s outrageous. And stupid. I’m sure she just said it to get applause. Here’s how her thought process might go if that’s all she was going for: “Obama is a law theory guy. He doesn’t make decisions… decisively, like a commander in chief should. We need a commander in chief, not a dithering professor. Eureka! Todd, get your hand out of your pants and take a note…” At least I hope that’s how it went. The alternative, that this Tea Party crowd think the President should be able to twist around the Constitution like a noodle, is scary.

  2. collapse expand

    I saw the Judge on Fox Nuisance Channel recently (not by choice, barber shop channel). The discussion was about the Khalid Sheik Mohammed trial being moved out of NY, and I assumed he was going to rant about the conservative talking point of having a military tribunal.
    But to my amazement, when asked for his thoughts, he said the problem now becomes that they MUST legally hold the trial in some other US District Court, and a decision would need to be made of where that would be.
    I thought his reasoning was because he was charged with a Crime rather than being held as a prisoner of war. He never really went into the Constitutionality of it. But after reading your post and his LA Times article, even I can see where he is coming from.
    The most amazing thing about this is that a paid FNC pundit would actually not only throw the Constitution into the conversation, but also point out that the Congress has never declared war on anyone.

    I think the next sounds you will hear will be Roger Ailes shout ‘YOU’RE FIRED’, followed by his head exploding! Apparently The Judge never got the Frank Luntz talking point memo.

  3. collapse expand

    I’m afraid that right-wing nuttiness has reached the point where old-fashioned phrases like “true conservative” no longer have any meaning. Some astoundingly high percentage of people on the right seem to have become utterly deranged. Every day they top themselves with yet a new peak of irrationality and absurdity. Death panels, birthers, torture glee, tea partiers, Obama can’t talk without a teleprompter, snow in DC = global-warming-is-a-fraud….they’re like Alice in Wonderland on acid.

  4. collapse expand

    Thanks for putting this article together. I think when we encounter passionate argument we might have a tacit understanding of what is wrong with it, but we may not always have the ability to articulate it well. Your piece was brilliant for its declaration of principal over passion and we need a lot more of that in order to raise the bar in the debate. I can’t thank you enough for bringing a bit clarity to this issue.

  5. collapse expand

    The key word here is antinomianism. I’m expanding it a little bit from its religious connotations, but this implies that conservatives believe that if their faith is strong enough, the law doesn’t matter. If terrorists are evil, then no law can protect them from the righteous wrath of the true believer. The prime example of antinomianism in action is the C Street conspiracy. They have openly declared that they have no need to remain within moral strictures because all their crimes are committed for the faith.
    To the average person, the hypocrisy seems astounding, to the faithful, the hypocrisy is a requirement of their faith. Is there any wonder that we aren’t communicating?

  6. collapse expand

    Any terrorist caught on the battlefield out of military uniform can legally be shot as a spy, and should be, after we get all the information out of their twisted little muslim brains

  7. collapse expand

    So why doesn’t the president ask Congress to declare war on “terrorists”? Is it because the terrorists do not represent a nation, but instead an idea that has no nationality? Is it because if we did declare war, every nation in the world, not just those in the Middle East, would be vulnerable to U.S. attack? Are the nations of the world fearful now of that very thing? Or has Obama’s “Peace Prize” dissuaded them of that potential consequence of our “war on terror”? No, none of that can be correct. Communism is an idea, yet the war on it remained cold — perhaps because there never was a communist-caused nine/eleven on U.S. soil? But then Korea was never declared a war; officially it was a “military conflict.” Was Vietnam ever declared a war? Why do we continue to believe the Constitution means something, when our actions tell it is merely a prop in what amounts to doing what we want anyway, constitutionality be damned?

  8. collapse expand

    Excellent, excellent argument.

    Thank you for clarifying this for me and giving me some ammo for future debates.

    I never understood why we never declared war in Vietnam…Korea was given cover as a supposed United Nations action.

    The point lost on the tribunal fans is that nobody has met justice under a military system.

    • collapse expand

      Right you are. The tribunals haven’t worked out because of the conflict that exists between the law and the desire to use the format. No matter how much politicians want to push in the direction of the tribunals, until they find a way to create a tribunal that meets the legal test, or the Supreme Court alters its interpretation what what is and is not permissible, Guantanamo residents are going to continue to walk.

      In response to another comment. See in context »
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    I am an attorney in Southern California, and a frequent writer, speaker and consultant on health care policy and politics. To that end, I am active member of the Association of Health Care Journalists. Based in beautiful Santa Monica, California, I'm very pleased to have the opportunity to be a contributing editor to True/Slant. I've recently finished a book designed to make the health care debate understandable to the average reader, and expect it to be out in the next five months or earlier. In my 'spare time', I continue to write for television and, occasionally, for comic books.

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