Commentary

Americans’ First Loyalty Must Be to the Constitution

On Feb. 2 on Fox News, Democratic Sen. Blanche Lincoln of Arkansas was fulminating against the Obama administration bringing Khalid Sheikh Mohammed into our civilian federal court system along with four other high-value detainees. “They’re war criminals!” Lincoln shouted. If that is certain, I spoke to the TV screen, why put them on trial anywhere to show proof? Then the Fox interviewer spoke of Mohammed’s “alleged co-conspirators.”

“Alleged?” Was that interviewer one of those soft-on-terrorism ACLU-types? Or was he just trying to be fair and balanced?

Lincoln is acting on her indignation. She is part of a bipartisan group of six senators (including South Carolina Republican Lindsey Graham) moving to block any funds for federal criminal trials for 9/11 suspects.

Earlier this month, President Obama proposed an expenditure of $73 million to cover these trial costs - detention, litigation, security and transportation - for these notorious defendants.

Meanwhile, our chief law-enforcement officer, Attorney General Eric Holder, who made the decision to bring these defendants into federal court, appears to be trying to calm the protesters by assuring all of us - as I heard on Fox News and other networks - that he is confident Mohammed will be found guilty and meet his just deserts. “Failure,” said Holder, “is not an option” in this trial. Presumption of innocence, anyone?

The fierce opposition to try them here, however, has not been mollified. But the president, as of this writing, is firmly resolved to find a location for the federal trial. However this is resolved, there will be an ongoing blistering debate on whether certain terrorism suspects have any rights under our Constitution to be tried in our civilian courts. Or any rights at all, outside of military commissions. These latter courts have a substantial presumption of invalidity.

Entering into this debate is the Washington-based, undeniably bipartisan Constitution Project, headed by Virginia Sloan, whom I first knew years ago when she was on the staff of Congressman Don Edwards, whom I often described as “the Congressman from the Constitution.” A former FBI agent, Edwards opposed all evasions of the Constitution. So does Ms. Sloan.

Last December, 130 Americans, ranging from David Keene, chairman of the American Conservative Union, to Michael German, policy counsel for the American Civil Liberties Union (and a former FBI terrorism investigator), signed the Constitution Project’s “Declaration Supporting Federal Court Prosecution of Terrorism Suspects and Opposing Indefinite Detention Without Charge.”

That last reference to permanent imprisonment of terrorism suspects, who can’t be tried in any court - civil or military - because of statements already obtained from them by torture, is an intention of President Obama, who is trying to buy an Illinois state supermax prison to put away these ghost prisoners wholly outside the Constitution.

Obama is the only president we’ve had who continually treats the Constitution as putty to be shaped to fit his political needs. Others may have come close, but he has been the worst offender.

With regard to putting such dread figures as Mohammed in our civilian courts, the Constitution Project’s “Declaration” emphasizes that “Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

“We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.”

As for Obama Americanizing Stalinism by indefinitely imprisoning persons without charge in U.S. gulags, says the Declaration, this would so damage “our nation’s reputation with international allies … undermine U.S. counterterrorism and counterinsurgency efforts and thereby also increase the danger to American military and other U.S. personnel serving abroad.”

How much confidence can an ally have in so lawless a nation? Remember the international effect on our allies of the photographs of what we did to our prisoners at Abu Ghraib, while that evidence of our disrule of law gladdened recruiters for terrorist organizations.

Among the signers of the Constitution Project’s “Declaration” is Mickey Edwards, former national chairman of the American Conservative Union, a founding trustee of the Heritage Foundation and an unabashed defender of American constitutional exceptionalism. He says of those who declare that our American courts will not, or can not, convict terrorists, that they “claim to be patriotic - that is, to love their country - but they seem not to really understand what, exactly, America is, or what it stands for, or what ‘to be American’ really means.”

America, Mr. Edwards continues, is “a commitment to, well, ‘truth, justice, and the American way.’ And that’s why we have courts, not show trials and not summary judgments. It’s not because we love terrorists, it’s because we hate them and we are going to subject them to the thing they most fear - justice, democracy, the rules of a free society.”

Not everyone would agree with the following jagged way Mickey Edwards expresses his patriotism; but although I oppose the death penalty, I have to respect his further definition of American “fundamental values”:

America, he declares expansively, “doesn’t mind killing the bad guys and neither do I; find ‘em guilty of murder and string ‘em up; that’s fine with me - after they’ve been found guilty (by a jury, not a president).”

I keep going back to what James Buchanan of Michigan’s Hillsdale College, a Nobel Prize winner in economics, says: “In a constitutional democracy, persons owe loyalty to the Constitution, rather than the government. I have long argued that on precisely this point, American public attitudes are quite different from those of Europe.”

Hardly all Americans agree with him, but that degree of reliance on the Constitution is the legacy of our Founders. How can we pass this legacy on to our children, if - as is often the case in our schools - they don’t learn what it is?

Nat Hentoff writes on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.