The ACLU has applauded the shift of the trials of the terrorists who have confessed to leading the 9/11 attacks, from military tribunals to criminal trials in New York. This is unnecessary, under a unanimous decision of the Supreme Court. At least, the ACLU’s project to provide lawyers for these “high value” defendants, has been shut down due to a lack of money.

Some of he facts for this article, but none of the legal conclusions, come from an article in the Atlantic on 24 November, entitled “Justice for Detainees?” The article concerns two subjects, the first being the ACLU’s applause for the alleged decision by Attorney General Holder to try some, but not all, of the Islamic terrorists in ordinary criminal court in New York City.

The article quotes the Executive Director of the ACLU, Anthony Romero, as calling the decision, “a huge victory for restoring due process and the rule of law.” The author of this article did not talk to, or at least did not quote a single word from anyone who disagrees with Romero’s conclusion. And, apparently the reporter did zero independent research, because it is impossible to examine this subject honestly without encountering Ex Parte Quirin, a 1942 unanimous decision of the Supreme Court which concluded that:

People who seek to conduct bombings in the United States, against targets which would involve both military and civilian deaths, can be tried by military tribunals. Those tribunals are NOT subject to the rules of ordinary criminal cases, including the Bill of Rights. An aspect of that case makes it crystal clear that the German saboteurs in 1942 were not entitled to the Bill of Rights even if they were AMERICAN citizens.

One of the defendants in 1942 was born in America before going to Germany for training. Another claimed to be an American. The Supreme Court ruled 8-0 that citizenship did NOT matter, because of the nature of the acts, which took the defendants out of the protections of the Bill of Rights, and out of any international conventions on the law of war.

The Court discussed numerous instances of use of military tribunals, being with the trials and executions of Colonel Nathan Hall of the Connecticut Militia, and Major John Andre of the British Army. The Court concluded that all those defendants had obtained all the “due process and rule of law” that they were entitled to.

As for this being “the decision of Attorney General Holder,” it cannot be just his decision. The Attorney General has no jurisdiction over the American military. Holder has no power to order the military to turn these defendants over to the civilian courts. Only the President, as Commander in Chief, has the authority to order that. Either this is President Obama’s decision, or it is illegal and should be enjoined by the court in New York where an action to stop the transfer has been filed earlier this week.

In 2008, the ACLU began with much ballyhoo, the John Adams Project. It was created to provide maximum legal representation to “high value” Guantanamo detainees subject to prosecution before military commissions.” Although some terrorists are still being tried before military tribunals, the ACLU has quietly shut down the Adams Project. That Project had been set up with some creative financing.

Since then, Romero has announced that an anonymous donor who had been donating $20 million a year, has stopped those donations because of “market conditions.” And the Adams Project is one of the casualties of that decrease.

Money, interestingly, is the means of shutting down this legally false decision. Even if President Obama has to claim this decision, to get through the pending law suit, it still follows that the criminal trial in New York cannot occur if it is NOT funded. Congress can stop any military action by any president by cutting off the funding. Of course, the odds that a Democrat-majority House and Senate will vote to do that. But the effort to insist that such a vote be taken, should be made.

Source on the Net:

https://correspondents.theatlantic.com/wendy_kaminer/2009/11/_should_civil_libertarians_celebrate.php