Fox News senior judicial correspondent Judge Andrew Napolitano claimed on “The O’Reilly Factor” last night that the Constitution and Federal trial rules required a civilian trial of Khaled Sheikh Mohammed and several of his al Qaeda cohorts in the jurisdiction where their ‘crime’ was committed. Napolitano is so far off base on this issue that his credentials as senior judicial correspondent should be re-assessed by Fox News before he is allowed to appear again in the guise of a legal expert.
In fact this latest Napolitano blunder is even more preposterous than his claim several weeks ago on “The O’Reilly Factor” that it would be unconstitutional for Congress to ban illegal aliens from participating in any health insurance plans, particularly the public option. His arguments amount to an abuse of the Constitution which, as Supreme Court Justice Robert H. Jackson once said, is not a “suicide pact.”
Khaled Sheikh Mohammed (or KSM for short) is an illegal alien combatant, who was caught abroad in the theater of war and who committed his offensive act of war of masterminding the 9/11 attack abroad. He was obviously not on the planes that hit the World Trade Center, nor is there any claim that he had entered the U.S. prior to the attack as part of his planning and preparation for the attack. The fact that the end result of the plot that he hatched occurred in New York does not give KSM jurisdictional links to New York that would entitle him to a civil trial in New York, as Napolitano asserts.
In fact, even if KSM had been in New York as part of his planning and preparation, it would not make any difference under Supreme Court precedent. In a case involving eight Nazi saboteurs who did enter the United States by submarine in two groups to launch their attack – one landing on the coast of Long Island, New York, and the other at Ponte Vedra, near Jacksonville, Florida – the Supreme Court held that President Franklin D. Roosevelt had the authority to establish a military commission, which subsequently tried, found guilty, and suggested punishment for the aliens. Roosevelt had issued Proclamation No. 2561 — “Denying Certain Enemies Access to the Courts of the United States”.
Napolitano claims that the current situation is different because KSM and his cohorts did not commit an act of war on behalf of any nation that was at war with the United States, as the Nazi saboteurs were preparing to do. That is a meaningless distinction in this context. Al Qaeda is an organized group that had been operating from bases given sanctuary in Afghanistan when the 9/11 attacks were planned and carried out. Osama bin Laden had specifically declared war on the United States twice during the 1990’s.
Military commissions, operating under procedures approved by Congress and subject to review by the federal courts, provide alien enemy detainees with sufficient due process protections without creating a circus of propaganda for al Qaeda to exploit and without forcing the release of classified intelligence or endangering counterterrorism efforts, which the normal rules applied in ordinary criminal trials in our civil courts might well do.
Evidently, even the Obama administration intends to try some of the Guantanomo detainees before a military tribunal. What is the constitutional basis for bringing the most dangerous al Qaeda leader to New York and putting New Yorkers in danger of a reprisal attack while leaving the fate of lesser known terrorist suspects up to a military tribunal? There is none. This is all about causing political embarrassment to the Bush administration as details about CIA interrogation techniques, including waterboarding, come out as part of KSM’s defense.
We are at war with a ruthless enemy that wants to destroy the very Constitution that the Obama administration now wants to use to provide their leaders with full legal protections in a criminal law trial. Any blood that spills directly or indirectly as a result of this circus will be on the hands of President Obama and his Attorney General Eric Holder.