Article by Nat Hentoff.
When President Obama and Eric Holder succumbed to fierce bipartisan resistance to trying Khalid Shaikh Mohammed and four other charged defendants – for the 9/11 massacre of Americans – in our civilian federal court system, they were defied by Michael Daly, a stubbornly independent columnist for the New York Daily News: “The only right way” to bring them to justice, he wrote, “was with the very system they sought to destroy and so many courageous Americans have died defending. Instead, we … lost faith in our own courts and laws” (April 5). As Amnesty International reminds us, “Real justice comes from real courts.”
On the same day, a lead editorial in the newspaper that employs Michael Daly insisted: “Trying KSM in civilian courts could have been a disaster, given their strict rules of evidence.” Evidence extracted by torture is indeed not accepted in our constitutional civilian courts.
Inadvertently, Michael Daly’s employers sustain his insistence that this should still be America, even when trying KSM.
The president explained his turnaround by emphasizing that Congress had passed a defense appropriations bill forbidding the use of federal funds to transfer any prisoners from Guantanamo to the United States, including to a civilian court.
Obama, murmuring that this congressional action was unconstitutional, nonetheless signed the bill. That reminded me of then-Sen. Obama’s solemn pledge that he would filibuster a Bush-administration measure extending and deepening government electronic surveillance of our personal communications.
Once in the White House, however, Obama, along with his attorney general, have stoutly supported that very law.
In any case, KSM and the others will now be before a judge and jury of military officers in a Guantanamo military tribunal. What I did not know until New York Post reporter Geoff Earle disclosed a rule “buried in a 2010 (Guantanamo military commission) procedural manual” that gives Obama ultimate authority over these very high-level defendants: If they’re convicted, “A punishment of death may be ordered executed only by the President”
All too obviously, since 9/11, George W. Bush and Barack Obama have scorned the Constitution’s mandatory separation of powers.