Exclusive: Should Tax Dollars Prosecute Terrorists or Pay for Their Defense Lawyers?

by MARGARET CALHOUN HEMENWAY January 21, 2010
Scott Brown's victory speech Tuesday night in Massachusetts included a sharp criticism of Obama's benevolent treatment of foreign terrorist suspects:
 
"And let me say this, with respect to those who wish to harm us, I believe that our Constitution and laws exist to protect this nation - they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them."
 
Many political pundits are attributing Brown's stunning upset yesterday in the Bay State to Obama's unpopular health care agenda, but Brown's ascent in the polls also coincided with the Christmas Day bombing attempt and its aftershocks, of Northwest Flight 253 by a 23-year-old Nigerian, Umar Farouk Abdulmutallab, and negative publicity stemming from missed warning signs by those in government who have been given a massive infusion of taxpayer resources to fight terrorism and prevent terror attacks since 9/11 (including an entire new federal agency dedicated to the defense of the homeland, the Department of Homeland Security and its subsidiary agency, the TSA (Transportation Security Administration).
 
To make matters worse, the Obama Administration decided to reward terrorist suspect Abdulmutallab with a civilian trial rather than turning him over to the military to be tried by military commission without consulting, according to Obama's Director of National Intelligence who testified before the Senate today, either the Homeland Security Secretary, the CIA Director or himself. It's been reported that the Nigerian underwear bomber was "singing like a canary" until provided a lawyer and magnanimously granted the special rights and privileges that uniquely accrue to American citizens per our Constitution and Bill of Rights. It is hard to conceive of what information will now not be gleaned from this suspect about the al Qaeda network and the Islamic cleric in Yemen that Abdulmutallab was in touch with (the same who claims helping to encourage Army Maj. Hasan in his lethal attack at Fort Hood on unarmed fellow soldiers) since the Obama Administration granted this illegal enemy combatant Fourth Amendment protections. 
 
The Clinton Administration tried the same failed approach now being revisited by Obama – of treating international terrorism as a law enforcement problem, rather than as a military problem and refused to connect the dots. After the first World Trade Center bombing, other Islamic terrorist attacks followed – the attacks on two U.S. Embassies in Africa, the near sinking of the Aegis cruiser, the U.S.S. Cole, in the port of Yemen – meanwhile Osama bin Laden and his clan recruited jihadis and plotted the devastating attacks on U.S. soil on September 11, 2001.  
 
Former Attorney General Mike Mukasey, speaking last week at a conference in New York criticized DoD Secretary Bob Gates on this point, invoking Gates' comment that we cannot kill our way out of this conflict. Mukasey's rebuttal was that we certainly can't convict ourselves out of it. Jamming U.S. courts with foreign/enemy terrorists and granting them the same rights of U.S. citizens – and treating terrorism like an ordinary domestic crime such as bank robbery or embezzlement – defies common sense and ignores the successful tradition and history of U.S. prosecutions during wartime.
 
As also pointed out at the New York conference by Andrew McCarthy (who prosecuted the first World Trade Center bombing), Franklin Delano Roosevelt designated the Nazi saboteurs who landed on Long Island and in Florida in 1942 as enemy combatants. These enemy agents met with swift justice, with a trial held just four weeks after their capture. Hearing that the German invaders were seeking habeas corpus to challenge their treatment as enemy combatants, FDR arranged to have word passed by his Attorney General to the Supreme Court Justices that he did not care what the Justices thought. 
 
Within less than eight weeks of their capture, six of eight saboteurs were executed. FDR acted as a President who understood his role as Commander-in-Chief; he was not going to permit enemy operatives to take advantage of the liberal protections afforded American citizens by the protections of the U.S. Constitution. FDR did not want to take chances with a civil trial where secrecy could not be guaranteed and legal technicalities could result in allowing the prisoners to go free. Instead, he established a military tribunal, the first to be convened since Lincoln’s day, and the Supreme Court upheld his authority to do so. Further back in history, Gen. George Washington used military commissions to prosecute the Whiskey Rebellion, and military commissions were also used to prosecute John Wilkes Booth's accomplices. 
 
Ambassador John Bolton has pointed out that the "law enforcement paradigm" simply does not work during war. Moreover, the "war paradigm" does not reject the rule of law as supporters of the "law enforcement paradigm" imply. The United States military has the Uniformed Code of Military Justice (UCMJ) which serves to prosecute perpetrators when violations occur - as happened at the Iraqi prison, Abu Ghraib. The prison at Guantanamo Bay was set up, in conformance with the requirements of the Geneva Convention, to deal with extremely dangerous prisoners. GTMO detainees are permitted Geneva Convention protections despite having violated its fundamental requirements which are to wear a military uniform and to avoid killing innocent civilians. Terrorists deliberately target civilians and refuse to abide by the civilized code of conduct that other nations embraced when they signed the Geneva Convention. Rewarding ruthless terrorists with civilian trials (indeed, with better treatment than our own POWs would be entitled to) simply undermines respect for, and the objective of, the Geneva Convention which is to encourage conformance by adversaries to rules during wartime. 
 
Khalid Sheikh Mohammed, the self-professed mastermind of the 9/11 attacks and who took credit for slitting the throat of Wall Street Journal reporter Daniel Pearl, supposedly boasted upon his capture by American forces, "I'll see you in New York with my lawyer." With the prosecution of the 20th hijacker taking four years to work its way through the domestic courts, and no indictment yet of the 9/11 hijackers, it is evident that civilian trials are simply a means to drag out prosecutions and afford a public stage and spotlight to our enemies for propaganda purposes, letting them exploit America's attributes to their own benefit, and to thwart the U.S. war effort. As Scott Brown declared, we need to finance weapons to stop them, not pay for their legal defense.
 
 FamilySecurityMatters.org Contributing Editor Margaret Calhoun Hemenway spent fifteen years on Capitol Hill, in both the House and Senate, and five years as a White House appointee serving President Bush at both DoD and NASA.
 
 

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