Internment, CSI and Eric Holder's Disarming of America

According to the American Historian Will Durant, “Animals claw each other to death, men consume each other by due process of law.” And with that sentiment in mind, it is easy to see why the Obama Administration has made one of the worst foreign policy decisions in American history.

Of course, I am talking about the decision to try terrorists for “crimes” in New York City in a criminal court using the laws of our land. Let us count the ways this decision is beyond negligent; it is a gross dereliction of duty:

1. An Unprecedented Act Providing A Terrible Precedent. Throughout our history, we have treated enemy combatants as those committing an act of war. That is so because (a) they are not US citizens, and (b) their acts were acts of war. In other words, they were not criminal acts of a US citizen committed during peace time. Now however, Obama has allowed at least one enemy combatant to be tried in a US criminal court subject to the constitutional laws of our country.

Here is what logically can flow from that legal precedent, keeping in mind that the first right granted is never the last:

a) Other enemy combatants will claim that they are not being treated “separately but fairly,” that they too have a right to due process, and so they will claim that they have a right to tried in a US criminal court as well – effectively ending military tribunals; and

b) Thereafter, enemy combatants will not only make use of our appeal process, they will also claim that they have a right to sue in our civil courts for any claimed “civil rights” injustices as a result of the process by which they were captured, detained and/or questioned – regardless of any existing laws to the contrary which they will claim are – you guessed it – unconstitutional; and

c) Non enemy combatants will seek access to the US system claiming that their lesser “criminal” conduct is no less protected, i.e. illegal aliens and on and on; all of which means that

d) Non citizens will eventually claim full constitutional rights – including rights to government programs – in other words the loss of our legal borders.

If you think that is an exaggeration, consider how far the US has come – at one time allowing for interment during World War II of US citizens (essentially taking away existing rights of people) to today granting foreign terrorists Constitutional protections (to which they never should be allowed to have). The latter would have been unheard of in the 1940’s. Now it is a reality. Those are far bolder steps than the steps that I have suggested above.

2. War Decisions Will Be Hampered by Due Process of Law Issues. Once you move from a military tribunal to a criminal court, issues of admissibility of evidence change dramatically. Given that these events happen on a battle field, are we expecting our soldiers to collect evidence? To read terrorists Miranda rights? Are we to call in CSI? Of course, that seems laughable given the dangers of the battle field, but as a lawyer, I can tell you that those issues will come up. Of course the solution to that for the military will be not to take prisoners but instead to simply shoot on sight – a decision that would lead to lawsuits as well. All of which will lead to the worst result of all.

3. Unilateral Disarming. Of course, Osama bin Laden, living in a cave, has no use for due process. He views such niceties as a weakness in his war. At no point will terrorists modify their behavior in response to separate but equal treatment – after all, someone willing to murder civilians by thousands does not specialize in equity. The US, on the other hand, has by its own hand weakened its ability to fight wars – it will have unilaterally allowed others to consume at least part of us by due process of law.

Of course, that may well be part of the Left’s strategy. So too tearing down the barriers between citizens and non-citizens – making terrorists citizens of the world. How long is the process from that decision to Obama then deciding that our Constitutional review of these terrorists must be judged by international standards?

After all, if he has disarmed us of our ability to fight, why not disarm us of our constitution or as they refer to it – Internationalism?

Taking all of that into consideration, incredibly, Obama admits that he didn’t sign off on the decision. Now that is the only crime I can see in this scenario.