by JOHN W. HOWARD November 18, 2009
The current administration is the most ideologically pure in the history of the nation. It is driven by ideology; its leader a committed leftist ideologue. President Obama is the culmination of the Alinsky project; a charismatic celebrity who has perfected the technique of telling people what makes them comfortable, the better to enlist their support in initiating programs that are contrary to their interests to advance his malign philosophy. His success is the product of a combination of forensic skill, popular discontent with the status quo and the unconscious affirmative action self-censorship that insulates black leaders from criticism.
There is no action undertaken by this administration that cannot be explained by reference to leftist ideology or technique. The Great Satan of the international left has always been the United States; its great project to undermine this nation. It has undertaken this destructive plan from within and from without. It has taken the great strengths of this nation – its freedom, its openness, its tolerance – and turned them within themselves, exploiting the vulnerability they carry with them, to destabilize.
In a vast academic project of historical revisionism, they have undermined our confidence by distorting our history and discrediting our heroes. They have dismissed the great Founders as slave-holding hypocrites. They have suggested venal motives for our greatest humanitarian projects. They have attempted to discredit our greatest achievements, from the Constitution that formed us to the economic freedom that created the great prosperity that, in part, defines our place in the world.
They have attacked the stabilizing institutions of our society by hammering on the flaws that exist in all human organizations and suggesting that the institutions themselves are contemptible, undeserving of respect and support. The list is endless: religion, history, traditional moral stricture, the law, business, private property, art, cultural values.
At the same time, they have invaded and infected many of those same institutions. The “March Through the Institutions” envisioned by Marxist theorist Antonio Gramsci has resulted in the takeover of church councils and the distortion of Christian thought. It should have come as no surprise when it was discovered that the World Council of Churches was guided to a great degree by board members who were agents of the Soviet KGB. The Gramscian march has resulted in the seizure of the institutions of education. It has seen the arts turned from their original aesthetic purpose for the exaltation of human endeavor, to the instrument of cheap political propaganda. 
The result has been the politicization of all aspects of American life. The overarching leftist project is in giving everything a political meaning; seeing everything through a political lens; working every angle for political profit. Never before in our history has a national administration been so completely driven by politics; so committed to the seizure of public policy for political advantage. 
Is it any wonder, then, that this President – this ideologue – should have taken such pains around the world to apologize for our history, for our fortitude, for our strength? Is it a surprise that he has implicitly discredited every president in the modern age – Republican and Democrat – by suggesting historical American overreaching in its world endeavors? Is it a shock that he virtually ignored the 20th anniversary of fall of the Berlin Wall – perhaps because he does not see that as a good thing – and made no mention of its architect, Ronald Reagan? It shouldn’t be.
Among the most enduring myths of the left is its suggestion that the courts are best qualified to deal with all problems. Perhaps this is an outgrowth of their great success in so distorting constitutional interpretation during the Warren Court years. Perhaps it grows out the left’s twisted transformation of the law’s protective function to one of coercion. Whatever the reason, it is dead wrong.
The American court system is based on a set of uniquely American parochial assumptions. It is based, first, on American law and on procedures unique to this country, its distinct populace, its culture and its tradition of freedom. It is supported by institutions that reinforce its effect and the respect of the citizens. It is dependent on cultural and popular embracement and largely on the good faith of its participants. It is not nearly as durable as those who populate its procedures would like the public to think. It is fragile and the balance is easily upset by bad behavior on the part of those with nothing to lose; no cultural investment; no sense of shame, let alone by those who despise its civilized procedure as cultural and moral weakness.
Those imbued with our culture get the cultural buy-in. The Bill of Rights extended institutional protection to those swept up in the great maw of the criminal justice system. American citizens have paid their dues. They accept the risk, the harm, responsibility and the benefit of the system we have devised. Our Constitutional protections have always existed so that American citizens committing American crimes on American soil will get the benefit that goes along with being an American.
We know there are rules and we expect everyone to follow them. Our nation was born in the idea that every citizen is free and everyone equal; that we are a nation of laws that apply equally to the mighty and to the weak; that we are a nation that ensures that every person who buys into our system is entitled to the protection that system guarantees and bears the responsibility that goes along with being an American. That is why we tolerate the suppression of evidence that results in the freeing of guilty people even as we complain about the constitutional interpretation that causes that result. We agree in an odd way with the idea that our society has to pay the price for the misbehavior of our agents. That is why we agree that coerced confessions should never be admissible to prove the guilt of a criminal defendant. We are Americans. We do not think Americans should be treated that way.
The key is the national and cultural investment in the system. But the system exists in a discrete and controlled environment. It exists in America. It exists in a nation of people who understand and buy into the system; who know its limitations and who respect its majesty and its authority. It exists in a place where there are criminal laws and a criminal justice system geared toward dealing with criminality in an American setting; where both the police and criminals know the rules; where even in the criminal setting there is a certain predictability. It is not organized to deal with the uncontrolled rest of the world. Its system and its mannered, fastidious imposition of artificial rules and limitations – so necessary for a free people – are neither maintained nor intended for the chaotic environment of the battlefield or foreign nations that do not understand, respect or accept our legal way of life.
The system is largely right for the environment in which it was born and exists. It is not right as an international tribunal of war. That is why presidents since Washington have understood that those who do not have a cultural investment into our system are not entitled to the protection it offers. That is why presidents since Washington have understood that our fragile court system is not suited to trial of those operating in an international arena outside the confines of our national weal and our cultural norms and restrictions.
That is why the decision to try the terrorists who plotted the attack on this country on September 11, 2001 is so completely wrong.
We know that the trial will be hard fought and there will likely emerge some of the most high profile, skillful criminal defense lawyers in the country to offer their services to these defendants. They will, with stunning narcissism, argue that it is a lawyer’s highest calling to represent the most despised and they will self-righteously sniff that it is just this sort of defendant our system was put in place to protect.
The circus will begin with great fanfare as justice department lawyers announce the tremendous success of getting an indictment from the grand jury. Headlines will follow and prosecutors will get face time on the six o’clock news. But indictments are virtually inevitable since grand jurors only hear one side of the story – the prosecution – and are ill-equipped, as laymen, to assess whether what they are being told has any basis in law or in fact. It is long before the motions to exclude evidence are filed. Regardless, the administration will play it as if it were a conviction.
The drama will continue at the arraignment. That will be the first chance the defendants will have to make a speech condemning the proceedings and the United States and to proclaim the great injustice this prosecution represents. They will be shut down at some point, but not before they have the opportunity to pick at the collective scab that is New York and the families of the victims.
The defense will begin with a motion for change of venue on the basis that the defendants cannot get a fair trial in New York, of all places. Both sides will spend an enormous amount of money trying to prove what is obvious to everyone and that is that New Yorkers are not objective when it comes to this subject. The motion will probably be granted and the trial will be moved to some innocuous place somewhere in the Midwest where the enormous cost of setting up the security necessary to undertake a trial of this sort will be breathtaking. This is just another example of abysmal judgment by the Obama Justice Department which should know better. Handing the defense a ready-made and time-consuming victory is just bad strategy. Even if the defendants lose the motion, they will consume time and resources on an ancillary diversion that will serve only to delay and provide an opportunity for speechmaking.
Once they settle on a court, the defense will ask that the trial be set no sooner than two years out because, of course, they need time to gather evidence, interview witnesses and prepare a defense. The motion will be granted. Then the real fun will begin.
The defense will challenge any and all confessions regardless of their reliability on the basis that their clients were not given Miranda warnings. They will argue that the confessions followed “torture” and are inherently unreliable. To Obama’s delight and that of the Democrat Party and the international left, they will put the Bush Administration and the CIA on trial for its interrogation techniques. They will produce the photographs and videos the Obama Administration pretended in earlier cases to want to leave undisclosed because they are relevant to the issue of the reliability of the confessions. They will expose our techniques to international display and disdain and those who operated in good faith to great physical danger. But Obama will have put the Bush Administration on trial all the while cynically claiming he had no means of stopping it. It was just that independent court, you see, exercising its third branch prerogatives under the constitutional separation of powers.
If you think people around the world hate us now, wait until this procedure is done. It will finally give those who already wish us ill a very, very large stick with which to beat us for years to come, and, on top of it, the moral high ground from which to wield it, thanks to Mr. Obama.
The defense will argue that any evidence that was discovered after the defendants’ arrests is “fruit of the poisonous tree,” as the Supreme Court has dubbed it, and must be excluded on the basis of current legal authority. They will move to exclude even that evidence Attorney General Holder claims was obtained independent of the confessions because he will not be able to prove that it was obtained independently. They will argue that the case should be dismissed because the defendants were denied the effective assistance of counsel at the earliest time required under current Constitutional standards. Remember when Khalid Sheikh Mohammad asked for a lawyer when he was first interrogated? That will set up the argument nicely for defense counsel. They will move to dismiss on the basis that the defendants have not had the speedy trial guaranteed under the Constitution.
The defense will move to exclude evidence that was obtained at the original detention because it was obtained without probable cause and without any sort of prior review by a court. They will claim that the entire process has been so tainted by the “torture” to which the defendants were subjected, that it is inherently unreliable, unfair and unconstitutional.
We do not know what will happen and it is just that not knowing that is the danger. We know the extent to which creative solutions have been fashioned by judges that have the effect of making convictions considerably more difficult. We have, over the years, been witness to the release by judges of clearly guilty people on the basis of these solutions. In this uncharted territory, we have no way of anticipating what new and innovative ideas the fertile minds of judges might conjure to tip the balance away from the conviction of a terrorist for the crimes he has committed. What we do know is that we cannot anticipate how a federal judge is going to react to all of this. I suspect that wide swaths of evidence will be excluded and that none of this is worth the risk.
Federal courts are simply not equipped to handle cases of this nature. Judges are cloistered and sheltered from the practicalities of the real world. It is easy for a judge to deal theoretically with real world problems but real world problems do not generally lend themselves to theoretical solutions. What judges can be counted on to do is to apply the law in a mechanistic way without regard for the consequences. The point is to keep terrorists off the street, not to vindicate American notions of Constitutional protection for the accused. If the judge is honest and carefully follows current precedent applicable to criminal defendants, he will likely grant many of the defense motions.
At the end of this month long process will come the trial itself, if proceedings get that far. That will be the opportunity for the defendants to disrupt and make their case to their public. It will also be the time the government will have to come forward with evidence that will compromise national security and the lives of those who might have provided information that will result in the evidence presented. Criminal defendants, after all, have a right to discovery; to see each and every item of evidence and its backup before it is presented at trial. They have the right to publicly confront the witnesses against them which means, of course, that they have the right to know who they are. Good luck, at the end of this process, with getting anyone to provide evidence to the United States.
It will be, of course, a no loss situation for the defense lawyer. He will get the tremendous publicity that will, after all, have been the real point of his representation. It will be worth millions in ancillary business. Either way the trial goes he will win. If he loses, he will say the system has been vindicated and he did the best he could against the overwhelming odds of trying a case against government lawyers. If he wins, he will say, well, that the system has been vindicated and that his client is entitled to the presumption of innocence. He will go on to darkly warn outraged Americans that his client is entitled now to the peace he has earned by acquittal and scold them for their anger and unwillingness to accept the wonderful protections of our system. And then the ringmaster will take a deep bow.
Until this moment I had not fully gauged the recklessness and cynicism of this administration. Bringing the 9/11 terrorists to the United States for trial in civilian courts is an irresponsible, dangerous and cynical act. But it is consistent with Obama’s leftist project. This decision is a purely political act having nothing to do with the high-minded rhetoric that accompanied its announcement. Obama is willing to risk the security of the American people to make his tawdry point. If Khalid Sheik Mohammed is convicted, Obama will declare the vindication of his view that terrorism is a criminal problem to be handled by the criminal justice system. He will, with the cloying self regard that accompanies most of his acts, proclaim that he has single-handedly elevated America’s reputation in the world and brought us out of the dark night of the Bush years.
If Khalid Sheik Mohammed is acquitted – and here is the really cynical aspect of this profoundly wicked act – Obama will, with his practiced look of pain and disappointment, tell us that it is all Bush’s fault. That if Bush had not allowed all of these terrible, unconstitutional things to occur, we would have gotten the convictions Obama so earnestly attempted to obtain. 
The cynicism of this act is breathtaking. The naked politics of it is rank. Obama gets to claim the moral high ground as he tries the Bush Administration by proxy, all the while, with plausible deniability, disavowing that that was his intention. At the same time, he will have the opportunity to play the no lose game of taking credit for convictions and credibly casting blame on Bush if he fails to get them.
It is the perfect leftist paradigm. Expose the United States to criticism and ridicule and cast it as a positive evil in the world. Make the political calculation that you can, at once, discredit your political opponents and take credit for trying to elevate the national reputation in the eyes of the world.
The national interest be damned. What is important is its denigration and the political advantage to be gained by the ideology that has tried so long and, until now, so unsuccessfully, to weaken the last, best hope of man on earth.
Family Security Matters Contributing Editor John W. Howard is a lawyer, specializing in corporate and business litigation who also founded a non-profit, public interest law firm specializing in First, Second and Tenth Amendment issues.

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