I tuned into conservative Bill O’Reilly’s show on Fox News last night to see what libertarian John Stossel had to say, and in the process I was treated to one of the most inane arguments I have ever heard in my life, not from Stossel, of course, but rather from arch-conservative Ann Coulter, who was appearing as a guest in a separate segment.
So, Coulter was trying to distinguish George W. Bush’s treatment of shoe-bomber terrorist Richard Reid, an admitted member of al-Qaeda who was treated as a criminal defendant, from Obama’s treatment of accused Detroit bomber Umar Farouk Abdulmutallab, who is being treated in the same way.
Coulter suggested that the reason that Bush treated Reid as a criminal defendant rather than as a enemy combatant was because the Pentagon’s Gitmo prison camp was mired in litigation, including Supreme Court rulings adverse to the government, followed by congressional approval of a military tribunal system, followed by more litigation. Coulter suggested that all this litigation mess motivated Bush to prosecute Reid in the federal criminal justice system rather than in the military-tribunal system.
Like I say, ridiculous and inane! Litigation mess or no mess, there was nothing preventing Bush from treating Reid as an enemy combatant. After all, didn’t he continue treating Jose Padilla and Ali-al-Marri as enemy combatants for years, notwithstanding the litigation mess, not to mention all the men held as prisoners at Gitmo for several years while the litigation was taking place? We didn’t see Bush transforming them into criminal defendants because of the litigation mess, did we? In fact, the only reason that Bush suddenly converted Padilla from enemy combatant to criminal defendant was to avoid a Supreme Court review of a Court of Appeals decision upholding Padilla’s status as an enemy combatant.
What Coulter and O’Reilly obviously want to avoid confronting is the wholesale transformation of our constitutional order that Bush and his people effected after 9/11, without even the semblance of a constitutional amendment. It’s a transformation that even makes FDR’s infamous court-packing scheme look like child’s play, a transformation that Obama has obviously embraced with relish.
Terrorism is a federal crime listed as such in the U.S. Code. That’s why suspected terrorists have always been indicted and prosecuted in federal district court. Examples include Ramzi Yousef, the 1993 WTC bomber, Zacharias Moussaoui, the 9/11 conspirator bomber, and Timothy McVeigh, the Oklahoma City bomber.
What changed? After 911, Bush and Vice President Cheney simply decided to call 9/11 an act of war, which they claimed empowered them to treat suspected terrorists as enemy combatants, subject to being turned over to the military and denied all the procedural rights that criminal defendants had long been accorded.
That’s it! Just a simple decision by Bush and Cheney, but one that constituted a revolutionary transformation of America’s constitutional order. Cheney confirmed this in his recent interview with ABC News’ “This Week”:
“I think it’s — it’s very important to go back and keep in mind the distinction between handling these events as criminal acts, which was the way we did before 9/11, and then looking at 9/11 and saying, This is not a criminal act, not when you destroy 16 acres of Manhattan, kill 3,000 Americans, blow a big hole in the Pentagon. That’s an act of war. And what the administration was slow to do was to come to that — that recognition that we are at war, not dealing with criminal acts.”
Yet, in deciding that this particular crime was an act of war rather than a criminal offense, what Cheney failed to point out was that he and Bush did not totally abandon the criminal-defendant route established by the Constitution. After all, let’s not forget that after making this momentous decision, they actually treated 9/11 co-conspirator Moussaoui as a criminal defendant, securing a federal grand-jury indictment against him and prosecuting him as a criminal defendant.
So, why have both Bush and Obama continued to treat some suspected terrorists as criminal defendants. Because they’re still not sure how far to push their new order of things.
Their ideal is obviously to have the power to round up anyone they want, including Americans, incarcerate them, torture them, and even execute them, all without a genuine trial and due process of law and all by simply labeling people terrorists
But to ensure that Americans don’t get too alarmed over this wholesale transformation of their constitutional order, as Americans did, for example, when President Franklin Roosevelt proposed his infamous court-packing scheme, U.S. officials are still preserving and using the judicial system established by the Constitution in terrorist cases while no doubt hoping to abandon it entirely at some point in the future for full military jurisdiction over terrorist cases, including those involving Americans.
Too bad that O’Reilly didn’t ask Coulter to justify this dual-track, ad hoc, arbitrary system established by Bush and continued by Obama. It would have been fun seeing her come up with a justification for it.