For The Memorial Day Weekend: The Semper Fi Fund, Mark Steyn on the President’s Speech, and Dueling Law School Deans Discuss Gitmo
Jim Geraghty will sit in for me Friday, but I will be back on Monday with our annual fundraiser for the Injured Marine Semper Fi Fund. Each Memorial Day for the past four years 15 or so Marines, sailors, and soldiers join me to discuss the wounds they have suffered in the war and their recoveries. Each time they do this I, the program’s staff and the program’s audience are humbled and inspired. Don’t miss the program, or the opportunity to give to the fund which you can do online here.
For your weekend reading please, here’s the transcript of my conversation with Mark Steyn on President Obama’s speech Thursday, and here’s the podcast. “I thought the President’s speech was revolting and contemptible,” Mark began, “and one that he really should not have given.” Read the whole thing.
Here’s the transcript of my conversation with Mitt Romney, also from Thursday, and also about the president’s speech (as well as the rush to rationing that is the result of the radical Obama/Pelosi/Reid restructuring of American medicine, and the deeply gloomy prospects for a government-run Detroit.) Here’s the podcast of that. “Barack Obama is still very a politician on a campaign trail,” Romney began. “He really has not yet made the transition from politician to president, and I thought his remarks were extraordinarily twisted and disjointed. And a careful examination of them would find that they’re quite inaccurate as well.” Read the whole thing.
Next, and with it in mind that President Obama declared in his Thursday speech that the Supreme Court had “soundly rejected” the proposition that Gitmo was beyond the ordinary jurisdiction of American courts, read the transcript of the interview with Dean Erwin Chemerinksy of UCI Law School and Dean John Eastman of Chapman University Law School. The podcast is here. Key excerpt:
EC: Well, I think we would agree that we never ask justices for commitments in how they’ll rule for cases that come before them. Stenberg V. Carhart in the Year 2000, 5-4, struck down a pan on partial birth abortion. Gonzalez V. Carhart in April, 2007, upheld a ban on partial birth abortions. No nominee, Republican or Democrat, is going to give you a promise what they’ll do when the issue comes before them. Now I personally believe that both Republican and Democratic nominees should share with others their views on key issues like abortion, but my prediction is the Democratic nominee will do the same thing that John Roberts and Samuel Alito did, and refuse to answer questions about their views on controversial issues.
HH: But this has been decided, hasn’t it? This is over. This is done. It’s soundly rejected the attack on the statute.
EC: Antonin Scalia refused to answer questions about Marbury V. Madison in his confirmation hearings. The trend every since 1987 has been even more so, that they’re not going to give views saying they can’t talk about issues that will likely come before them.
HH: Well, they might not, but I’m asking you specifically as a Con Law professor, it’s settled, they ought to…
EC: You know, the only question is what you mean “settled.” I think you’re giving a lot of weight to that word. It was a 5-4 decision that reversed a 5-4 case, effectively, from seven years earlier. Is that settled? I don’t think “settled” can be used in that context. I think the most you can do is ask what are you views on the issue of abortion. I doubt they’ll tell you that, and they’re sure not going to tell you their views on how they’ll vote on partial birth abortion.
HH: Oh, Erwin, I got you. Let’s listen to the President earlier today.
BHO: Part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law, a proposition that the Supreme Court soundly rejected.
HH: Erwin Chemerinsky, has the Supreme Court soundly rejected that proposition?
EC: Well, I think the Supreme Court soundly rejected the view that the Constitution and habeas corpus don’t apply in Guantanamo Bay, Cuba, yes.
HH: Wasn’t that a 5-4 decision?
EC: Well, again, it’s in the context in what you’re asking me. Should a nominee say that he or she is going to vote a particular way when the issue comes before the Court? No, I don’t think that the nominee will any more take a position on that than they will on partial birth abortion. Do I think that you have a 5-4 decision of the Court that holds that way? Sure, just like you did with regard to the partial birth abortion cases.
HH: But John Eastman, what I’m driving at is the President profoundly misrepresented today the decision of the Supreme Court when he said it “soundly rejected” the idea that Guantanamo Bay was beyond the ordinary jurisdiction of American courts. Do you agree or disagree with that?
JE: Well, yeah, I think he overstated. This is a very closely contested question. Most of the terrorism cases before the Court have involved multiple opinions and lots of nuanced readings. And in fact, 90% of them, of the rulings during the course of those decisions, actually upheld Bush administration policy. Much of that gets overlooked in the bottom line on the one or two things of Bush administration policy the Court took issue with. And then those opinions are read kind of in hindsight as striking down everything in the Bush policy. Many of these things are much more nuanced than that, the Supreme Court’s decisions, for example, about habeas corpus, includes caveats about the full due process rights that could be conveyed by a properly constituted military or war crimes tribunal. And Congress and the executive working together are creating those kind of rules, and which would undercut some of the claims of walking into civilian court. So I think this is very much in flux, and the Supreme Court itself did not define what kind of rules it would expect to see in these tribunals, and that remains to be worked out in many instances as well.
The president yesterday attempted to imply that the question of the legal status of Gitmo had been an obvious one, implying that the Bush Administration had terribly botched an easy set of wartime policies. In fact all of the legal questions surrounding the Gitmo terrorists and their status on the island or anywhere else, as well as the status of all enemy combatants currently in custody or who will be in our custody in the future, are incredibly complex given the erratic and inconclusive series of opinions handed down by the Supreme Court, usually by the margin of 5-4. The president’s casual dismissal of the difficulty of these issues was a revealing moment in a speech full of partisan manipulation of the war for the benefit of the left edge of president’s electoral coalition. If the president misleads the public on the difficulty of the legal issues confronting his predecessor, how can you trust his representation of the legal issues going forward? His refusal to fully confront all the potential consequences of a move of terrorists from Gitmo to the U.S. is similarly slippery.
President Obama and his supporters are oiling past the obvious unanswered questions surrounding the promised move of these hardened killers to U.S. soil. Many callers and e-mailers yesterday raised the obvious question of creating a target community or communities for fanatics, and an experienced corrections officer reviewed the myriad way which our court system allows inmates to travel within it and use it to run criminal enterprizes, including the often-used option of a killer deciding to represent himself and all the legal rights and opportunities to communicate that bestows on him.
More obviously, if the terrorists are dispersed across the U.S., new questions about the jurisdictions in which and the judges before whom they will lodge their hundreds or soon thousands of habeas petitions will arise, and even Congress somehow tries to continue to corral the subsequent legal proceedings, a move from Gitmo will set in motion a terrorist scramble into as many venues as possible in search of the judge who will set aside national security and order up if not release than more humane conditions of confinement. (The terrorist Bar must be hoping that some of the terrorists land in the Northern District of California or at least somewhere within the 9th Circuit.)
Here’s more from the Chemerinsky-Eastman conversation on this point:
HH: Erwin Chemerinsky, if the Gitmo detainees are disbursed across the United States, as counsel to one of them, and an observer of all of them, do you expect that those cases will be tried in different venues? Or do you expect the consolidation attempt will remain valid?
EC: I don’t know. Last week, President Obama said he wanted to use military tribunals. I very much disagree with this. If there are military tribunals, they could be done throughout the country and likely would be done throughout the country. If they’re going to be in federal court, my guess is they’ll probably also be in different federal courts. Already we’ve seen that Padilla got prosecuted in one, al-Marri’s being prosecuted in another. Yet another prosecution’s going to be in a third federal district court. So my guess is we’re not going to see centralization, no matter what.
HH: John Eastman, this is why I believe moving them from Gitmo greatly enhances the complexity and likelihood of erroneous decision making, is that we’re going to spread them out. And even if there’s a military tribunal, you’re going to have habeas petitions in a dozen different courts if they’re sent to a dozen different places.
JE: Well, you are. And there’s something else going on here, and that is a return, and I’m pleased to say that President Obama has taken steps this week to stop this from happening, but a return to the notion that these are just ordinary criminal matters rather than war matters. And moving people from Guantanamo to Leavenworth, for example, putting them in prison rather than in a detention camp, starts treating them as common criminals rather than combatants. Now they are also unlawful combatants, which means they can be tried under war crimes tribunals, and that’s what these military commissions are. They’re not criminal things, they’re war crimes tribunals. But here’s the real problem. You put them into Leavenworth and start treating them like criminals as if they were trying to rob a bank rather than take out civilians in a war action. What do you do with those that you can’t convict because you don’t have evidence beyond a reasonable doubt, but you know as soon as you release them, they’re going to return to the battlefield? The reason we treat these people like combatants is to keep them away from the battlefield so that they don’t launch other attacks against us. And that’s appropriate. Guantanamo was set up perfectly for that. It’s one of the most elegant detention camp facilities ever created in human history. And the notion that this is somehow an embarrassment on the United States is much too much into the bullet points in the rhetoric, rather than looking at what that place is on the ground.
HH: But again, you’re back into policy, and today, I’m just trying to really focus on the practical consequences of bringing 200 plus terrorist to the United States. I think it unleashes a wave of litigation, and wherever, however many jurisdictions that they are located in, with however many different circuits they are spread across, and it greatly increases the likelihood of chaos in the courts, Erwin Chemerinsky.
EC: I don’t think there’s any basis for that, and I’ve got to respond to what John said. These are not individuals who were apprehended on the battlefield. That’s how we’ve used detention in prior wars. These are individuals who were picked up of being suspected of being tied to al Qaeda. They can’t be held just because someone in the executive branch thinks they’re dangerous. There has to be due process. There has to be a trial. Never in American history have we just picked up people because we suspect them that they might be dangerous, and then held them forever without due process. That’s just never been done.
The American left is lawyered up to become, even more than it is now, the Legal Aid Society for Terrorists. Pressed by his political base, President Obama is pushing forward with a dangerous and unnecessary course based on the absurd mantra that the very existence of Gitmo recruits terrorists (and Supermax confinement won’t?) or an equally absurd proposition that the safe and humane detention of killers besmirches our reputation in the world. What Vice President Cheney said Thursday about the proposition that enhanced interrogation techniques are a recruitment tool applies with equal force to Gitmo:
Another term out there that slipped into the discussion is the notion that American interrogation practices were a “recruitment tool” for the enemy. On this theory, by the tough questioning of killers, we have supposedly fallen short of our own values. This recruitment-tool theory has become something of a mantra lately, including from the President himself. And after a familiar fashion, it excuses the violent and blames America for the evil that others do. It’s another version of that same old refrain from the Left, “We brought it on ourselves.”
It is much closer to the truth that terrorists hate this country precisely because of the values we profess and seek to live by, not by some alleged failure to do so. Nor are terrorists or those who see them as victims exactly the best judges of America’s moral standards, one way or the other.
Critics of our policies are given to lecturing on the theme of being consistent with American values. But no moral value held dear by the American people obliges public servants ever to sacrifice innocent lives to spare a captured terrorist from unpleasant things. And when an entire population is targeted by a terror network, nothing is more consistent with American values than to stop them.
As a practical matter, too, terrorists may lack much, but they have never lacked for grievances against the United States. Our belief in freedom of speech and religion, our belief in equal rights for women, our support for Israel, our cultural and political influence in the world–these are the true sources of resentment, all mixed in with the lies and conspiracy theories of the radical clerics. These recruitment tools were in vigorous use throughout the 1990s, and they were sufficient to motivate the nineteen recruits who boarded those planes on September 11, 2001.
Former Vice President Cheney’s speech yesterday was a model of clarity and serious argument about the most serious subject. The president’s speech, like his address at Notre Dame, was empty of reasoned argument but brimming with cant and conclusory self-congratulation and stuffed with straw men. The unwillingness of President Obama –it could be his inability, but I doubt it– to deal with the serious arguments surrounding the conduct of the war is the greatest failing of his young presidency, followed closely by the release of the interrogation memos as well as his Gitmo pronouncement and the witchhunt he launched when he said it would be up to the Attorney General whether or not to prosecute Bush Administration lawyers. President Obama has stumbled badly on these crucial issues and has lowered the defenses of the U.S. as a result while causing every front-line participant in the war to second-guess their actions now that politicization and even criminalization of the war effort has arrived in the Executive Branch.
In the dozen town halls hosted over the past four months by Bill Bennett, Mike Gallagher, Michael Medved, Dennis Prager and myself, we have all been asked and provided answers to the question “What has new president has got right?” I always pointed with approval to the decision to retain General Petraeus and Secretary Gates and to add resources to the fight in Afghanistan as well as noting with approval Mrs. Obama’s very strong, nonpolitical start as the First Lady. Others pointed to other successes, as Bill did every time he was asked this question by pointing to the dispatch of the pirates. “Credit where credit is due” was and remains our collective theme.
But there is no credit due the president on this Memorial Day Weekend for his incoherent approach to the treatment of the terrorists we already have in our custody and the precedents he is laying down for the next however many years we are obliged to fight this war. This is the first Memorial Day since 9/11 when it is possible to say that we are quite obviously returning to a 9/10 mentality when it comes to Islamist fanatics in our custody. Our guard is being lowered even as our extraordinary servicemen and women fight on in Afghanistan, Iraq, and scores of other places that don’t make the headlines. It is impossible for the fecklessness of the policies concerning interrogation of prisoners and the custody of terrorists at Gitmo and elsewhere not to impact over time the situation on the battlefield, if only because our enemies watch the news and see in these moves by President Obama a slow-motion stand-down.
We are less safe this weekend than we were a year ago, and the world is getting more, not less, dangerous.