Latimer on Law

Lindsay Graham's Big Problem

                                                                 Lindsay Graham's Big Problem

                                    "The big problem I have is that you're criminalizing the war...."

                                                                      -Sen. Lindsay Graham, R-SC

        "They committed murder here in the United States and we'll seek justice here in the United States,"

                                                                      -Sen. Patrick Leahy, D-Vt.

                                 "Military justice is to justice what military music is to music."

                                                                               -Groucho Marx

 "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

                                                                           - Benjamin Franklin

                  "My country right or wrong; if right to be kept right, and if  wrong to be set right."                                        

                                                                   -Sen. Carl Schurz, R-Wisc.

               The GOP's attack du jour on President Barak Obama is focused on Attorney General Eric Holder's decision to try Khalid Sheik Mohammed on criminal charges in the Southern District of New York.  We hear the usual right wing bellyaching, with allegations by "Rush" and others that Sen. Lindsay Graham "stumped" Holder because Holder refused to give a simple answer to a complex hypothetical question about where bin Laden would be tried if he were captured. 

               In fact, Graham revealed the basic phoniness of the GOP in his objection that Holder is "criminalizing the war."  Graham and the rest of the GOP desperately seek to have all Guantanamo detainees tried in military tribunals because that's the only way to legitimize the Decider's "war on terror," and they well know that apart from warmongering and carping about "liberals" the Republicans really have nothing to offer the American people.  

              The Republicans have no policy alternatives other than the failed policies they used to run America into the ground over the last eight years, and they've got no ideas.  So they cling to their tried and true agenda based on fear and obstructionism.  By insisting on military trials for Guantanamo detainees irrespective of where their alleged terrorist acts occurred, the GOP is in fact legitimizing them in the eyes of the world, and certainly in their own minds, as military combatants as opposed to the thugs and murderers they really are.

             We have a criminal justice system that recognizes the rights of the accused, unlike military tribunals, so foreign nationals tried in civilian courts will be accorded basic rights just like any other common criminal, say, Timothy McVeigh.  McVeigh, too, you will recall, claimed through his lawyers that he was part of the militia movement, an armed force opposed to the Government of the United States. 

            So why should Khalid, who is accused of killing civilians in a commercial office building here on American soil be considered an enemy combatant while McVeigh, who killed civilians in a federal government building, was considered a non-combatant? Both of them were driven by extreme ideology to commit mass murder here on American soil, targeting non-military facilities, and therefore both should be tried as common criminals here, in our criminal courts. 

            To do otherwise sends the wrong message to the rest of the civilized world and undermines our credibility, making us seem no better than how we viewed the Soviet Union under Stalin, or China today.  It is to tell the world that we don't trust the criminal justice system that is the hallmark of our basic liberties as a free people, a criminal justice system that is based on principle and not expediency or politics.  The GOP today is howling to sacrifice that principle solely in the name of expediency, based primarily on a politics that puts ideology ahead of the national interest.

            How does the GOP  differentiate between Khalid and McVeigh in principle?  Does it turn on the focus of their respective ideologies in the minds of Graham and the other GOP obstructionists, Khalid's Islamic jihad vs. McVeigh's right wing paranoia, ?  If so, that violates the essential purpose of the Constitution which is to protect the rights of the "people" and the individual "person," with no reference to citizenship, to ideology or to politics.

           The Fifth Amendment, particularly, states that no "person" shall be held to answer for a capital offense unless under presentment and indictment of a grand jury, i.e. a civil proceeding:

except in cases arising in the land or naval forces, or in the Militia, when in actual  service in time of War or public danger.

 It is quite a stretch to claim, as the GOP would have us believe, that 9/11 was an act of war as opposed to terrorism such as militiaman McVeigh's attack on the Murragh Federal Building. 

           If we're going to define these issues by hyperbole, then let's try all the Mexican drug and gun smugglers in military courts as well.  After all, we're in the middle of a 40-year  "war on drugs," and those Mexican thugs should therefore be treated as enemy "combatants" no less than Khalid and his fellow Islamic thugs who violated the law here on American soil.

          The braying that we're hearing from Graham and the right-wing media jackasses about trying these murderers in civilian courts claims that holding military trials for all Guantanamo detainees is based on issues of national security.  That is to say, unquestionably, it is a matter of expediency for them, and it is an expedient that defies and diminishes the moral authority of our Constitutional rights and our criminal laws which either protect everyone, every "person," or they protect nobody in the final analysis.

          This fits exactly within the meaning of Franklin's aphorism, where those like Sen. Graham and the right wing media hacks that parrot him are willing to compromise our essential Constitutional rights in the name of security and expediency.  Such people and their supporters deserve neither the liberty our Constitution guarantees nor the false security they seek to achieve by the expedient of trying Khalid in a military tribunal, the judicial equivalent of a military band playing "Onward Christian Soldiers" as Groucho suggested.

          The single most ludicrous statement to emerge concerning this affair is Graham's remark that Holder and the President are making "bad history."  Huh?  Where's he been the past eight years of the Decider and Darth Cheney making history, bringing us two costly unwinnable wars, increasing our national debt and trade imbalance geometrically and nearly bankrupting the country.  Are we to believe that was "good history?" 

          All Obama and Holder are doing is trying to follow Sen. Carl Schurz mandate -our country right or wrong, when right to be kept right and when wrong to be set right.  Given the past eight years of flat out wrong policy decisions by the GOP, they've got a lot of setting right to do, and trying mass murderers as such in civilian court, treating them as the common criminals they are instead of according them the dignity of enemy combatants, while upholding our fundamental constitutional principles, is clearly the right thing to do.

          Graham's real problem, meanwhile, and that of the GOP in general, is they really have no sound policy initiatives and no ideas other than more of the same small government, jingoist nonsense that created the eight year era of "bad history" from 2001 through 2008, so they keep trying to tear down Obama personally and obstruct his efforts to set things right politically.  And that's really a big problem -for the American people and for our constitutional democracy.