David Guinn, my Constitutional Law Professor at Baylor Law School, used to say, “The Supreme Court is the only federal court in the country that does not owe its existence and jurisdiction to the United States Congress.” The U.S. Constitution in Article I, Section 8 says that the Congress shall have the Power “to constitute Tribunals inferior to the supreme Court.” Article III, Section 1 says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
A simple reading of the Constitution led many of us to believe that when the Bush administration put together a military tribunal plan without Congressional input, the Supreme Court would, as it did, find that such creation was not within the power of the Executive Branch. Congress later passed the Military Commission Act of 2006 and then amended it this year so that the horrid name “enemy combatant” could be changed to a kinder, gentler term — “alien unprivileged enemy belligerent.”
Those alien enemy belligerents are defined as “unprivileged” because they do not qualify under the terms of the Geneva Conventions for their protections. As applied to the guests at Guantanamo, “unprivileged” means that they probably did not wear a uniform or identify themselves as being at war before they planned the attack that killed more than 3,000 innocent people in New York, Pennsylvania, and Washington, D.C.
It is helpful to know exactly what the five terrorists who admitted guilt in their submissions to the military commissions said when they thought they were going to trial at Guantanamo. Here are some of their quotes from their personal pleading filed and declassified in the cases (after they spent most of three pages verbally attacking the United States, Christians, and Jews):
– “So, if our act of Jihad and our fighting with you caused fear and terror, then many thanks to God, because it is him that has thrown fear into your hearts, which resulted in your infidelity, paganism, and your statement that God had a son and your trinity beliefs. God stated in his book, verse 151, Al-Umran: ((Soon shall we cast terror into the hearts of the unbelievers, for that they joined companies with Allah, for which he has sent no authority; There[sic] place will be the fire; and evil is the home of the wrongdoers.)) ”p.4
– “So, our religion is a religion of fear and terror to the enemies of God: the Jews, the Christians, and pagans. With God’s willing, we are terrorists to the bone. So, many thanks to God. . . We will make all of our materials available, to defend and deter, and egress you and the filthy Jews from our countries.” p.5
– “We ask to be near to God, we fight you and destroy you and terrorize you. The Jihad in god’s cause is a great duty in our religion. We have news for you, the news is: You will be greatly defeated in Afghanistan and Iraq and that American will fall, politically, militarily, and economically. Your end is very near and your fall will be just as the fall of the towers on the blessed 9/11 day. . . So we ask from God to accept our contributions to the great attack, the great attack on America, and to place our nineteen martyred brethren among the highest peaks in paradise.”p.6
-“Signed: The 9/11 Shura Council, Khalid Sheikh Mohammed, Ramzi bin As-Shibh, Walid bin ‘Attash, Mustafa Ahmed Al-Hawsawi, ‘Ali ‘abd Al-‘Aziz ‘Ali, Sunday, 3/1/1429h, Guantanamo Bay, Cuba”
Our attorney general surely read those same pleadings and decided to bring these fine gentlemen to New York for a show trial that they could never dream of receiving in Guantanamo Bay. After all, they planned on simply pleading guilty and asking for the death penalty in Guantanamo, where they would not have the press accessibility (nor terrorist accessibility for that matter) that there is in New York City.
Why not bring them for a jury trial in a city where there are probably lots of prospective jurors who have not heard about 9/11 and have not then formed an opinion as to what happened? Never mind that once those terrorist feet hit United States soil, there are judges who would deem them eligible for many rights they have never even had in their own country.
It is hard to imagine the thought process that went into the transfer order, but the decision makers surely considered and approved of the fact that trying the “terrorists to the bone” in a New York federal district court would provide the terrorists with potential access to our most sensitive forms of intelligence during their newly prolonged preparation time and during the trial itself.
Another grand bonus would be the fear that many in New York would have from the potential for further attacks. Can anyone imagine a safer place to bring terrorists than one with city-wide underground trains, tunnels under massive amounts of water, bridges with lots of vehicles running back and forth, and skyscrapers?
Well, yes. There is at least one: Guantanamo Bay, Cuba.
If anyone thinks for a moment that New Yorkers’ concerns over terrorism have disappeared, then they should view the video of reactions in New York this year when an insensitive White House approval for a flyover of the Statue of Liberty by Air Force One followed by a fighter jet caused many to panic.
It just may be that emotional wounds have run deeper than the White House or Justice Department anticipated. In fact, it may well be that the entire event is transferred to New York City, tens of millions are spent in preparations for the show trial, only to find that venue must be moved. Of course, it is unlikely that a motion to transfer venue would be filed before the terrorists’ feet touch down for the first time in the United States. If it were filed before they arrive in the United States, they might just end up staying at Guantanamo after all, and the Administration would not want to do that.
Please also keep in mind that despite conventional wisdom, water-boarding did not take place at Guantanamo. For any that occurred, it happened before guests arrived at Guantanamo Bay. Also understand that the biggest problem at Gitmo these days is apparently from the urine and feces that are thrown daily on our United States military men and women who are guarding the prisoners. Since there are regular visitors from groups who monitor treatment there, the commanders do not want to deal with having placed prisoners in solitary for assaulting guards as they would at most other facilities. The guards are punished if they respond even with a shout. The prisoners doing the assaulting can, if the offense is serious enough, lose some of their movie-watching time or, if it is really serious, they may not get to go outside and play for as long as they normally do.
It should also be noted that the United States has spent millions building and equipping the best possible courtroom for trial of suspected international terrorists or “alien unprivileged enemy belligerents.” I do have to agree with Rep. John Shadegg that we may have been too harsh in using the term “enemy” in that string of adjectives. Perhaps, “wandering unprivileged inhospitable belligerents” would have been more accommodating.
Having examined the entire courtroom, work facilities, private consultation areas, and protected gallery areas, I was greatly impressed with the legal and engineering thought that went into the whole operation. There is no way that set up could be replicated in most cities in the United States from a safety standpoint without spending hundreds of millions of dollars, if even then.
Understanding the Constitution, I knew it was Congress that creates courts and decides on their jurisdiction. Then we heard that for the first time, “belligerents” or warriors or combatants who declared war on us, who planned or participated from foreign countries in acts of war against the United States, and who were captured in foreign lands, were about to be brought into the United States for trials. I knew something had to be done. The ranking Republican on House Intelligence, Pete Hoekstra, immediately came up with a bill to prevent the “belligerents” from being brought to the United States. I think his bill and mine make a very good package to deal with all aspects of the issue.
My apology goes to Ann Coulter, who may cringe to know that she and I were apparently having the same thoughts all week as I worked on the bill with Constitutional lawyers’ assistance and she worked on an article that was published the day before I filed the bill. There were a number of ways to limit jurisdiction or establish jurisdiction. However, those assisting me agreed that the simplest, least likely to be overturned (legally speaking) route was the best.
Accordingly, the bill I filed is HR 4127, and it simply amends the Military Commission Act of 2009 in Title 10 of the United States Code, Section 948c, so that it would now read that alien unprivileged enemy belligerents who are “subject to trial for any alleged conduct for which a term of incarceration or the death penalty may be sought or obtained may ONLY be tried by such a commission.” (emphasis added) There is no place for terrorist trials in a US District court. “Only” means “only”, even to the Attorney General.
After hearing the governor of Illinois and a US Senator from Illinois say that bringing prisoners to Illinois meant jobs for people there, I was not impressed that “jobs” were a good reason for bringing terrorists or their terrorism to our shores unnecessarily. I have even been told by a New Yorker that I am just afraid and that New Yorkers are not, that they are willing to take care of their own problems. The rest of us, the New Yorker said, can just bow out so they can look the terrorists in the eyes and sentence them to death.
That statement came from someone who has never looked a dangerous individual in the eye and sentenced him to death to someone who has. The rest of the country has a big interest in the safety and well-being of New York and New Yorkers.
We have an interest in the precedent that is set as well. To order alien unprivileged enemy belligerents to be tried under United States District Court rules of procedure and rules of evidence creates pitfalls that people unfamiliar with setting up logistics for a complex criminal trial cannot imagine. Everyone who has anything to do with the trial, whether it involves transportation, housing, supervising detention, clerical court work, or the prosecutors, judges, and jurors (even if the effort is made to keep names secret) and all of their loved ones, is at risk. Many of us who have been felony prosecutors and judges take the death threats as an inherent risk of the job. But there are an awful lot of others who would be involved in a terrorist’s trial who should not have to, if the Attorney General gave adequate consideration to those risks.
There are more than 40 Members of Congress who are helping with this bill as original cosponsors. You can check my website at www.gohmert.house.gov to check if yours is supporting the bill. Please urge your Senators to push the same bill at their end of the hall. It is a Congressional obligation and it should not be shirked. Heaven knows Congress has taken on many tasks lately that it should not have, but this is one that requires immediate action.