The Green Papers
The Green Papers

The President and his Administration fold like a
card-player with many a losing poker hand over
constitutional criminal trials for 9/11 defendants

by Richard E. Berg-Andersson Staff
Mon 4 Apr 2011

[The President]... shall take Care that the Laws be faithfully executed...

CONSTITUTION OF THE UNITED STATES: Article II, Section 3 (in part)

On Monday 4 April 2011, Attorney General of the United States Eric Holder announced that, instead of civilian trials for those accused of planning, aiding and abetting the 9/11 terrorist attacks (at least insofar as those attacks that destroyed the World Trade Center 'Twin Towers' and other associated structures in New York City), the indictments handed up in US District Court in the Southern District of New York (which covers New York County=Manhattan) against said defendants were unsealed and dismissed by a Federal judge at the Justice Department's request, thereby allowing said criminal defendants to be tried before military tribunals (officially known as "military commissions", yes-- I know-- but let's call a spade a spade here!).

Ever since I wrote my first Commentary for this website on this very subject- and even more so with the posting of my follow-up Commentary thereon- I have received many an e-mail arguing (where not outright ranting!) that those who might have helped plan or otherwise aided and/or abetted the terrorist attacks of 11 September 2001 do not "deserve" the benefit of an ordinary criminal trial at Law. Doubtless, I am in the minority on this particular issue, to be sure; equally to be certain, however, my position is the correct one: for- as I now so well peruse my well-worn, dog-eared copy of the Constitution of the United States (with its clauses, as well as its Sections and Articles, numbered)- I can find no mention at all within same of some such concept as "deserved process" of law... rather: all *I* can find therein is reference to Due Process of Law!

Such "Due Process", indeed, requires the maintenance of all due constitutional and legal norms (including the use of the usual, ordinary civil courts of Law to try criminal offenses committed against civilians, as was so clearly the case at the World Trade Center in Manhattan that terrible day now nearly a decade ago)... more to the point, it enjoins the President of the United States to so "take Care" that the requirements of the Sixth Amendment to the Federal Constitution, as regards a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, be amongst the Nation's laws to so "be faithfully executed" by him and his Administration.

But, beyond this, an American President must lead- not merely follow- and, in this respect, the "excuse" (I can think of no other- nor better- word for it right now) that the turnabout in policy (going from holding civilian trials to having the criminal indictments against the so-called "9/11 defendants" dismissed in Federal court so as to allow for trial before a military tribunal) was primarily the result of all too much pressure from opposition in Congress is, in and of itself, altogether lame. Then again, President Obama has handled this whole issue badly from the very start: for when the original announcement of civilian trials for the 9/11 defendants in the Southern District of New York was made by Attorney General Eric Holder back in November 2009, the President of the United States was nowhere to be seen...

likewise, in the case of the second such announcement publicly proclaiming this recent turnabout, why- as was the case with the original announcement back in November 2009- was only Attorney General Holder present?

Where was President Obama? Nowhere to be seen, apparently...

*I*, on the other hand, would have been seen... then again- unlike our current President, evidently- I already have a pair!

I myself judge public officials (or, at least, try my best to do so)- whether elected or appointed- largely by what *I* would do in the same situation: often as not, this is not all that easy to do, for I recognize that said officials might well have access to information not necessarily publicly available; nonetheless, I earnestly- as well as fairly- try my best to use my now more than four decades of having researched and studied Constitutional Law, Comparative Politics, American and World History and the like (indeed, any and all the subject matter that one can so easily see as having long been of interest to me merely by perusing my many- however wordy they be!- Commentaries for The Green Papers posted hereon for more than a decade now) to come to some reasonable answer to the question 'What would *I* have done?'

In the case of the original announcement (for, had I been President of the United States, there would have been no second announcement, for there would've been no such turnabout in a Berg-Andersson Administration!), *I*- unlike President Obama- would not have allowed my Attorney General to make said announcement all by his lonesome. While I- again, had I been President- might well still have used the Justice Department, rather than the White House, as the venue for such a thing, *I* would have been there in person (for the decision as to how said 9/11 defendants are to be tried is, and so very clearly, a Presidential-level decision) and *I* would have made the original announcement- not my Attorney General (who, however, would have been standing beside me as I did so and would be the one to take questions on the logistical details after I had left the room after having said my piece). I would have publicly acknowledged the expected criticism of my so having authorized civilian trials for the 9/11 defendants but, thereafter, I would have noted that the President alone- unlike all other Federal officials, elected or appointed, from the Vice President on down to the lowliest buck Private in the U.S. Army- is required to "preserve and protect", as well as "defend", the Constitution of the United States... and then I would have pulled out, from the breast pocket of my suit jacket, my own aforementioned well-worn, dog-eared copy of that very Constitution and read out loud the actual words of the Sixth Amendment to that fundamental document and, thereby, reminded the American People (my real audience, of course) of the President's duty to "faithfully execute" those provisions no less than those of any other Federal law.

Even more disturbing, however, are the reactions in favor of this turnabout in policy on both sides of the aisle in the 112th Congress of the United States: what few voices of indignation there might be therein are already- as I type this- more than well drowned out by thunderous applause from conservative Republican and liberal Democrat alike- alleged constitutionalists all, who have taken a sworn oath to at least "support and defend" Our Nation's Constitution (so "alleged" because, while their self-proclaimed love of the American Constitution might well be splashed across colorful campaign literature and flashy websites, it doesn't seem to have made all that much of an imprint upon their respective hearts)...

next time these might have cause to so strongly ponder their being so willing to defend the Constitution "against all enemies, foreign and domestic", they might do well to keep at least one eye on the very person who stares back at them each and every time they happen to look into the mirror (that is: when they are not so preoccupied with standing up on American street corners going into next year's Federal Elections holding up signs reading 'WILL MONGER FEAR FOR VOTES'!)

In the mean time, the Prime Directive- Do the Right Thing- has here seemingly evaporated as if into thinnest air.

Modified .