by Ken Stremsky

In his response to my 'vox Populi' of 19 November 2009, Mr. Berg-Andersson wrote:

All these U.S. Attorneys, as well Attorney General himself, have that same "prosecuturial discretion" as is allowed to my State's Attorney General or its several County Prosecutors. Thus, absent some specific mandate by Congress via statute not allowing for same, Law enforcement remains an element of the Executive branch of the Federal Government, the very essence of the President's Oath of Office "to faithfully execute [his] Office" as well as "to the best of [his] Ability, preserve protect and defend the Constitution of the United States": therefore, the Attorney General - and, yes, ultimately even the President to whom the Attorney General is directly responsible- do get to decide if terrorists are tried in civil courts or military tribunals ... at least as regards a particular case.

Why is he ignoring Article 1, Section 8, clause 10 of the United States Constitution which says Congress has the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"? If this is not a specific mandate, what is? Why does he not realize that ignoring Article 1, Section 8 means that the Constitution is NOT being preserved, protected, and defended?

In War, countries often attack civilian population centers to make the people want to stop fighting or to change behavior in some way. Doesn't Mr. Berg-Andersson realize this?

Sometimes, they want to cripple financial centers or manufacturing bases. Attacking one of the most important financial centers of our country by citizens of foreign countries is an act of War. What does Mr. Berg-Andersson think the terrorists were trying to accomplish by attacking New York? Does he think they thought logically about hitting a very important financial center or does he think they picked New York by chance?

The terrorists trained to attack New York. The terrorists hoped to cause significant harm to our economy. The terrorists attacking civilians was an act of War they hoped would cripple us or would bring about changes.

What happened in New York was both a criminal act and an act of War carried out against civilians. Congress gets to punish terrorist attacks carried out by citizens of foreign countries because Congress and NOT the President gets "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Mr. Berg-Andersson should not be ignoring this.

Our country has abrogated Treaties, by the way. Sometimes, it makes sense to abrogate a Treaty and sometimes it does not.

People should think about whether they think it makes more sense to use hammers or hatchets against terrorists. Letters of Marque and Reprisal are hammers. I believe Congress using Letters of Marque and Reprisal would save the lives of many of our soldiers and the lives of many people from many foreign countries. Letters of Marque and Reprisal may be granted to citizens of the United States of America and to citizens of foreign countries. Congress gets to decide what Letters of Marque and Reprisal may be and how they may be used because the Constitution itself does not say what Letters of Marque and Reprisal have to be.

Article VI, clause 2 of the United States Constitution says

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

We are a Republic. Does the way our Republic wages War bother Mr. Berg-Andersson? Has he read Article 1, Section 8 of the United States Constitution? Doesn't he want members of Congress to fulfill their constitutional obligations discussed in Article 1, Section 8 of the United States Constitution or does he, instead, want the President to have too much power?

We have a President and not a King. People should not ignore the reasons why the Constitution gives members of Congress the power

"To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" (Art. I, Sec.8, cl.10)

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." (Art. I, Sec. 8, cl. 11)

"Rules concerning Captures on Land and Water" gives Congress the power to decide what happens to captured terrorists, captured enemy combatants, and prisoners of War.

It angers me when people ignore the Constitution and say the President gets to decide what happens to captured terrorists, captured enemy combatants, and prisoners of War. Read Article 1, Section 8. The American people should stop ignoring Article 1, Section 8. How captured terrorists, captured enemy combatants, and prisoners of War are treated matters and Congress gets to decide.

Ken Stremsky
kstremsky at live dot com

Mr. Berg-Andersson responds:

Well, I don't honestly believe I am one of those people ignoring the Constitution: Congress, as I've said in my earlier response to Mr. Stremsky, does get to decide-- by law, meaning specific statutory authorization-- just which department of the Executive branch (regulated, where not actually created, by Congress- again, via Federal statute) carries out the apprehension of those committing unlawful acts (whether, among these, ordinary crimes or terrorist attacks) and the bringing of such people to Justice.

Congress has, obviously, already created a Department of Justice, headed by the U.S. Attorney General, within which are United States Attorneys as prosecutors in each of the country's Federal court Districts charged with prosecuting those charged with Federal crimes; Congress has also created a Federal Judiciary- those "inferior courts as the Congress may from time to time ordain and establish" under Article III, Section 1 of the U.S. Constitution (as well as Article I, Section 8, clause 9, which gives Congress power "[t]o constitute Tribunals inferior to the supreme Court"): as a result, and much more usually, crimes against Federal law are adjudicated through the agency of a U.S. Attorney- or one of his or her assistants- prosecuting a given criminal case before a Federal District court in- to here use the language of the 6th Amendment to the U.S. Constitution- "the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law" (this last phrase requiring Congress to set up such Districts by statute ahead of time, so that everyone- prosecution and defense alike- can then know just which court [and, thereby, just which U.S. Attorney's office] has jurisdiction over the adjudication of a given criminal case).

If 9/11 attacks were, indeed, crimes- and not Acts of War (I'll address this difference between me and Mr. Stremsky on this point in just a moment)- then neither the Attorney General, nor the President of the United States, are at all unduly exercising too much power in this regard, for they each are merely carrying out the powers and duties of their respective offices as provided for by Federal statutes which first set up, and have since regulated, both the Justice Dept. (a Cabinet department whose head- the Attorney General- is directly responsible to the President [though both are, yes, answerable to Congress, which is why Mr. Holder himself had to, just the other day, appear before a Senate committee in a hearing regarding his decision: Mr. Stremsky and I had a 'vox Populi'-discussed difference over 'responsible' versus 'answerable' on this website earlier this very year, by the way] as well as those which have provided for the entire Federal court system.

Obviously, however, the main difference between Mr. Stremsky and myself herein is that I define the 9/11 attacks carried out in New York City as having been crimes, while Mr. Stremsky sees them as having been Acts of War (please note that I have already acknowledged- in my original 19 November response to him- that the 9/11 attack on the Pentagon might very well be a different story, as that was an attack on a military installation [just as the attack on Pearl Harbor by the then-Japanese Empire of 7 December 1941 was], but I am not going to address the attack on the Pentagon right now because Attorney General Holder's decision [which, by definition, had to also have the imprimatur of President Obama] does not at all concern that particular aspect of the events of 11 September 2001: Holder's decision to try the terrorist defendants in civilian Federal court in the Southern District of New York is solely related to the attacks of that day on the World Trade Center).

The reason I see the 9/11 attacks on the World Trade Center as crimes, and not Acts of War, is- in part- based on something Mr. Stremsky himself has written above, where he writes [i]n War, countries often attack civilian population centers to make the people want to stop fighting or to change behavior in some way. Doesn't Mr. Berg-Andersson realize this?

Yes, I realize this (and I've read more than enough Military History to know so)... but Al Qa'eda (or, for that matter, whatever other rubric[s] under which Jihadist- or other- terrorists might operate) is not a country: that is, the 9/11 terrorists were not acting as direct agents of a sovereign Nation-State (as does a soldier, sailor, airman or marine fighting for his/her country) any more than does the minion of an urban drug dealer carrying out a drive-by shooting on the dealer's behalf!

And yes, 'tis true that Talibanic Afghanistan was serving as host, as it were, to Al Qa'eda training camps (which is why we- the United States and its willing allies- attacked Afghanistan, while still under Taliban control, beginning on 7 October 2001; it is, indeed, why our troops- and those of our allies- fight therein [in order to try and keep the Taliban from coming back into power as the government sitting in that country's capital of Kabul] to this very day) but the government of Afghanistan of the time was not at all in a State of War with the United States of America on the morning of 11 September 2001 (as the invasion of Afghanistan on 7 October was, quite obviously, nearly 4 weeks thereafter; the attacks precipitated said invasion- but we were not contemplating any such invasion at the time of the attacks themselves) and- as best as I can determine by going back and reading, on microfilm and DVD-ROM, the morning newspapers of that date already out on the newsstands as the 9/11 attacks themselves were occurring- the United States of America was, in fact, not at war with any sovereign Nation-State on that very morning.

Thus, what was done to the Twin Towers of New York City's World Trade Center- and, more importantly by far, what was done to those who were killed, maimed and injured as a result- on the morning of 11 September 2001 was, above all else, a crime under Federal law: Congress had already placed (whether these happened to be signed by a sitting President or approved over a sitting President's veto) statutes on the books regarding the criminality of terrorist acts (statutes which had recently been strengthened in the wake of the bombing of the Murrah Federal Building in Oklahoma City on 19 April 1995)... therefore, in truth, Congress has already decided where terrorist suspects can be tried and, where an unlawful act taken against civilians has been committed by those who are- effectively- "free agents" not directly tied to, or ordered by, a particular internationally-recognized regime, it is a crime- not an Act of War- and the proper place for prosecution of said crime is in a civilian court (unless Martial Law [that is: where civilian authority has been superseded by military governance] has been declared, which has not ever been the case in New York City at any time since 11 September 2001).

Now, I will grant Mr. Stremsky that, yes, Congress may- at any time- change this... only by statute, however.

I don't rightly know if, given the political breakdown currently seen in each house of the 111th Congress, any such change could be done right now in any event (I also suspect that any bill that might actually be passed by Congress which would reverse Mr. Holder's decision would be vetoed by President Obama and that an override of such a veto would not be at all easy to come by). Thus, if only for the nearer duration, the decision of Attorney General Holder (who, after all, can only act- at least if he wants to keep his current job, that is!- with President Obama's at least tacit approval) as to the venue in which these terrorist defendants are to be dealt with will stand in any event...

as it should stand, for I have already illustrated why the 9/11 terrorist attacks in New York City were crimes and not Acts of War- but allow me to now turn to why it is better that they be so considered, apart from the above general constitutional interpretation along with its concomitant more arcane legal hermeneutics:

Mr. Stremsky writes above that [p]eople should think about whether they think it makes more sense to use hammers or hatchets against terrorists. Well, treating the 9/11 attacks against civilians as Acts of War and, as a result, being able to try terrorist suspects in military tribunals is certainly a "hatchet" as compared to the "hammer" of seeking Justice through the Due Process of the ordinary Federal criminal justice system!

Mr. Stremsky also notes, correctly, that the terrorist attacks of 9/11 were carried out because, thereby, those who carried them out- as well as those who backed them- not only hoped, but even expected, that the attacks would cripple us or would bring about changes. It must be fairly noted, however, that- among the changes hoped for, if not even expected, by those within, or most attracted to, Al Qa'eda and its ilk- were large-scale abandoning of our own principles of personal and religious Liberty (one of the very things that modernist Muslims find attractive about that same West which Al Qa'eda and its wannabes so loathe [in large part (and as regards both modernists and Jihadists) because a modernist Muslim does not really wish to have to live his or her life under puritanical Islamic governance (for example: a lot of what took place on the streets during- and after- the most recent Presidential Election in Iran was itself a very reflection of this same feeling)]).

Jihadists all around the world would have loved nothing more than to have had the United States- in response to the 9/11 attacks- round up ordinary Muslims here in the United States, including those who are American citizens, and force them into camps a la the Japanese internment camps in the Western United States during World War II and, had we- as a Nation- been silly enough to have actually done so, we all could thereafter have well intoned the words of the late Oakland A's owner Charlie Finley (where he was describing his fellow Major League Baseball owners of the 1970s), where he said:

If we had half more brains, we'd all still be idiots.

Treating what was, after all, the largest mass Homicide in American History as more than the horrific crime it, in fact, was would be just about as stupid because it would be a failure to, here using what I wrote in that very piece which has engendered this discussion-via-'vox Populi', fearlessly continue to prosecute crime and institute appropriate punishment through that Due Process which normally applies: a legal procedure- with all its checks and balances, with all its protections for those facing trial (no matter how despicable the criminal defendant), that an adversarial system such as that of Criminal Justice needs to provide for in order for Trial by Jury to be far more a search for truth and the Justice that such truth advances than a mere "witch hunt" carried out unfettered by- or, at least, on behalf of- those seeking mere revenge.

I am not at all in favor of unnecessarily abandoning due legal procedure under our own Constitution, as cumbersome and intricate as it may well prove to be, in the course of bringing anyone associated with what took place on 11 September 2001, even foreigners, to justice (at the very least as regards the attacks on the World Trade Center), as I am not in favor of doing that which only seems to go a long way towards more serving the interests of those who are in league with- and/or have supported- such terrorists than it does the interests of maintaining our own Civil Liberties (for, if you can so easily try crimes committed against civilians via Military Tribunal absent Martial Law, what next then? I am here rather strongly reminded of the concern of one Sir John Harington who, upon being apprised that King James VI of Scotland- while enroute south to be crowned James I of England [keep in mind that, yes, this was the same monarch who would soon give his name to the King James Version of the Holy Bible!]- summarily ordered an accused thief to be executed without trial, is reported to have said:

If the wind bloweth thus, why may not a man be tried before he hath offended?)

Likewise, I am not in favor of American abrogation of Treaties, including those the United States signed onto long ago as regards Letters of Marque and Reprisal. Again I should here explain- if only because the concept is rather obscure, where not also obsolete- Letters of Marque and Reprisal legally allow(ed) private persons to seize merchant ships and their cargo flying under the flag of a Nation-State considered to be an enemy of the Nation-State so authorizing just such Marque and Reprisal.

I'm not quite sure how Mr. Stremsky might intend to apply Marque and Reprisal to early 21st Century terrorists, but the main objection to its use- back in the 19th Century- was that actions defined as such were carried out by persons not part of government- and, hence, not at all accountable to government scrutiny (thus, it was a privilege that could be- and often was- so easily abused by so-called "privateer"s): Marque and Reprisal, therefore, was considered a detriment to Freedom of the Seas which is why it was first outlawed, by Treaty, at the same time the Crimean War was being brought to an end in 1856. As I have already pointed out on this site, the United States had- by then- already signed treaties regarding Marque and Reprisal with countries in our own Hemisphere and- after 1856- became signatory to further Treaties building upon the original Treaty making Marque and Reprisal an offense against the Law of Nations.

In the main, the notion of private individuals getting themselves legally involved- through the vehicle, thus under cover, of Marque and Reprisal- in conducting, apart from ordinary government-overseen and directed ventures (including covert operations under government auspices), various and sundry aspects of a War on Terror does not strike me as a particularly good idea.