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Historian Martin J. Sklar Makes the Case

Ronald Radosh

In his State of the Union Address, President Barack Obama skirted gingerly and quickly over the vital issue of national security policy, and how our country will address it. He gave boilerplate attention to the overriding issue of whether the United States and its European allies will do anything meaningful to stop Iran from gaining nuclear weapons, aside from once again saying that Iran must be stopped. While the President said all Americans stand united in protection of our national security, he said nothing about the growing debate over whether Khalid Sheikh Mohammed and the four other 9/11 terrorists should be tried in civilian court in New York City, and on the scandal brewing over the failure to adequately interrogate Umar Farouk Abdul Mutallab after his failed attempt to bring down Northwest Flight 253 on Christmas Day.

Let us reflect for one moment on what we have learned the past few days about what appears to be a short 50 minute interrogation before Mutallab was read his Miranda rights, and hence became silent as he prepared to lawyer up. While the administration claims the FBI learned whatever he knew about beforehand, others have received reports that in fact, the severely burned and incoherent Mutallab was unable to provide much information. Moreover, in the recent Senate hearings, it was made clear that none of our nation’s top national security personnel, including National Intelligence chief Dennis Blair, Homeland Security Director Janet Napolitano and Counterrrorism Center director Michael Leiter, were consulted about how to proceed. Nor were orders given to have Mutallab interrogated by a new agency created for just such events, the HIG- or High-Value Detainee Interrogation Group.

Now, Newsweek’s top intelligence correspondent, Michael Isikoff, has challenged their testimony. Iskioff says that in fact, Leiter and Obama’s counterrorism advisor, John Brennan, held a telephone conference call and a Justice Department lawyer briefed them and told them that Mutallab would be indicted on criminal charges the next day. Iskikoff writes:

Neither Leiter nor any of the other participants, including representatives from the FBI and the CIA, raised any questions about the Justice Department’s plans to charge the suspect in federal court, the officials said. “If you participate in a conference call and you don’t raise any objections, that suggests you were consulted,” said one senior law-enforcement official. Another added that “nobody at any point” raised any objections, either during the meeting or during a four-hour period afterward when Abdul Mutallab was informed of his Miranda rights to be represented by a lawyer.

When administration officials were queried about this by Iskikoff, administration spokesman meekly replied that they were “informed” about the decision but not “consulted” about it. In other words, they indeed knew what the administration’s course of action would be, and said nothing at all to indicate any opposition. Rather than admit this before the Senate Intelligence Committee, the responsible officials preferred to obfuscate by engaging in semantic wordplay.

All indication is, in fact, that the decision to proceed with a criminal indictment, as well as that of trying the five Al Qaeda prisoners in a criminal court in NYC, rather than before a military tribunal, came from Attorney General Eric Holder. All of this raises an important question. Congressional Republicans, and some Democrats, are making it clear that they will urge Congress not to vote funds to hold a trial in New York, and yesterday, Mayor Michael Bloomberg changed his mind and officially stated that the trial, if held, should take place elsewhere and not in the city he presides over as its chief executive.

Although Bloomberg said he hoped that Holder and the President would change their minds, little indication exists that they will. This raises two important political and constitutional questions: Is the decision to try them as criminals rather than as prisoners of war legal, and are those who made this decision to be held accountable? If it is not legal, and if it was indeed Eric Holder’s decision, is this an impeachable offense?

The case for impeachment of Eric Holder has been made boldly and forcefully by a friend and colleague, the distinguished economic historian of recent America, Martin J. Sklar. He has done so in a Memo on the issue of War and the Law that he has been privately circulating. He has given me permission to summarize and quote from what I consider to be a compelling case.

Written in mid and late November, Sklar’s argument holds up even more so given recent developments. His premise is that POWs are subject to the laws of war, and not to the civil or criminal law of the detaining country or government. If they are put on trial, they may not be tried in civilian courts, but only in military tribunals in accordance with the laws of war. As we know, this is indeed the course followed by FDR during World War II. As Morris Davis, chief US Military Commission prosecutor at Guantanamo, wrote in The Wall Street Journal in November of 2009, the classification of defendants as POWs rather than criminal defendants is consistent with Geneva Convention requirements. As he explained, “Military commissions satisfy the requirements of the Geneva Conventions, which are the source of the detainees’ rights. The rights in federal courts surpass the Geneva Conventions requirements and give detainees more than their status and the law demand.”

First, Sklar argues that neither the President nor the Attorney General has given any adequate reason why the five Al Qaeda defendants are any different than those who are going to be tried in tribunals. Moreover, the claim of both that civilian juries will find them guilty, so there is nothing to worry about, is of course prejudicial in itself and makes a mockery of any civilian trial, in which defendants are considered innocent until proven guilty. Of course, we already know in advance that they were guilty. As Sklar concludes on this issue, the statements of both Holder and President Obama “compromise the integrity of the judicial procedure, and may place it in a disruptive jeopardy.”

Secondly, aside from the issue of cost raised by Mayor Bloomberg, the trial will become a platform for the defendants to reverse their previous admission of guilt, to claim that they were tortured, and to use the courtroom as a vehicle for an indictment of “American imperialism” and “American War Crimes.” Sklar comments that hence “the trial may accordingly serve as the public-theater prelude to, and a reinforcing justification of, investigating, indicting…arresting, imprisoning and prosecuting civilian and military officers of the Bush/Cheney administration…deemed responsible for making or implementing war policy.” As we know, there are already cries to do just that for Israeli officials traveling to various countries after publication of the Goldstone Report. Sklar’s conjecture is therefore most plausible.

Sklar continues to argue that the decision for a civilian trial disarms our country and objectively arms our enemies. Ignoring this outcome, he argues, is malfeasance of duty, “a betrayal of the public trust and a violation of the constitutional oath of office.” He then makes this historical analogy:

The circumstances at present are strongly analogous to those of the Republican Party and pro-Union Democrats versus Andrew Johnson and the resurgent Secessionist/pro-slavery Democrats of 1866-68, the latter seeking to turn their defeat in war into victory via propaganda, demoralizing politics and terror, and constitutional usurpation.

If our course is not changed, Sklar warns, “we shall lie down pleasantly dreaming that the Berlin Wall is gone, state-command totalitarianism defeated in Europe and elsewhere, and the people of Iraq are on the verge of making their country free, and we shall awake to the reality that instead that the Obama regime has made state-command tyranny triumphant in Washington, and has made Illinois a Sharia state, along with all the others.” Paraphrasing Lincoln’s arguments in the House Divided speech of 1858, he quotes Lincoln’s words: “Have we no tendency to the latter condition?”

The larger question Sklar addresses is whether the Guantanamo detainees are to be no longer designated as enemy combatants, although their apprehension and detention were regarded as military captures under the laws of war, not arrests under civilian law. Attorney General Holder has in the past affirmed that the 9/11 attacks for which they are being held as the responsible parties were so regarded by the administration as an act of war. Thus the prisoners must be seen as POWs, not defendants under civilian law. Yet in March of 2009, President Obama directed that they were to no longer be designated as enemy combatants. But Attorney General Holder’s subsequent testimony before the Senate Judiciary Committee saying that their crimes were acts of war, undercuts the very basis for having them tried as civilians in federal court.

Eric Holder also claimed that he had not discussed the decision with the President before announcing it publicly, and President Obama confirmed his account. Sklar argues that “this could be considered a serious malfeasance on the part of the President, a not minor breach of his oath of office to preserve, protect and defend the Constitution, and a serious deficiency in a Commander-in-Chief, particularly in war time.” Moreover, Holder is an executive officer appointed by and removable at the will of the President, and hence subject to Obama’s authority. Legally, therefore, Sklar argues that if Obama does not countermand Holder’s decision, or remove him from office, the decision for civilian trial is as much his as the President’s.

Sklar proceeds to offer a complex legal analysis that is too lengthy to summarize. Essentially he argues with supporting legal precedents that he cites that the courts could reasonably conclude that the defendants, having been transferred to civilian authorities, were denied habeas corpus process before a civilian judge, which could be found to be an “unreasonable” period that lasted over five years. Moreover, it could also be found that the Attorney General had no constitutional authority to transfer the prisoners from military to civilian jurisdiction, and the transfer could be found not to ever have been valid, unless the President issued an Executive Order that they be transferred.

The arrests, detention and interrogation, and withholding of habeas corpus rights, therefore, could be ruled invalid and even illegal. Again, going back to the Civil War, Sklar writes:

It may be considered that in the case of Merryman (May 1861) President Lincoln ignored Chief Justice Taney’s habeas corpus order, on grounds of martial law, and in his capacity as Commander-in-Chief, Merryman was a U.S. citizen, not an alien, and he was detained by military authority on U.S. soil, not abroad, or on a ‘battlefield.’ Lincoln directed his military officers to ignore the Supreme Court order and to hold the prisoner. He subsequently reported and explained his action to Congress, and requested its affirmation, and post facto Congress affirmed Lincoln in his action, although it might have reprimanded him, or moved to his impeachment. President Obama has indicated no intent to request affirmation by Congress of the prisoner transfer.

The bottom line: As Sklar reasonably argues, Eric Holder can be found to have had no constitutional authority to ever transfer prisoners from military to civilian jurisdiction, or to order the military to hand over the prisoners to civilian authorities. Nor do the military authorities have authority to do so. It would need a Presidential directive to accomplish this. To date it has been said publicly that only Eric Holder made this decision on his own. To allow this decision to stand therefore subjects Holder to impeachment.

Legal scholars, of course, may come up with a different analysis and set of arguments. But I think historian Sklar’s analysis deserves serious consideration. With many in the Senate and House now reconsidering whether the defendants should be tried in civilian court, it may become moot. But if the administration proceeds and the trials are scheduled to be held in civilian court in NYC as now planned, possible impeachment proceedings are there to be considered as another avenue to stop this travesty of real justice.

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