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The Curious Case of the United States v. Khalid Sheikh Mohammed

Let me get this straight.  We need to try arch terrorist and admitted 9/11 mastermind, Khalid Sheikh Mohammed, in federal court to demonstrate the majesty of our system of justice.  On the other hand, Attorney General Eric Holder assures us that the case is beyond airtight—completely devoid of any realistic possibility of acquittal.  So much for a fair and impartial hearing—but, hold on, it gets even more peculiar. 

If, however, hypothetically, Hell freezes over, donkeys fly, Richard Dawkins finds God, Katrina vanden Heuvel becomes a Republican, and the case against KSM goes awry, the United States Department of Justice has a plan: they immediately re-arrest him on other charges—put him back in his hole and try again.  Hot damn!  You gotta love truth, justice, and the American way—Obama style!

A few brief thoughts:

1.  I hate show trials even more than I hate this guilty-as-Hell homicidal miscreant, KSM.  Even if everything goes our way on every procedural question in federal court, I will wince a little as we dance our way across the courtroom in a choreographed ritual of legal theater.  Even this cretin deserves the low-profile dignity of summary justice at the hands of the United States military.  We know he did it.  He knows he did.  The whole world knows he did it.  Try him and execute him in the less-public jurisdiction of the military tribunal, a process set out by Congress and approved by the Supreme Court for exactly this purpose. 

2.   Why give al Qaeda this particular stage?  This will be the trial of the century, set in the oldest district court in the United States judiciary, only blocks away from the scene of the crime, before a jury literally drawn from "ground zero," the neighborhood victimized by the most famous and traumatizing attack on the American psyche since Pearl Harbor.  The international coverage will be wall-to-wall. 
OJ will pale in comparison to KSM.  Why give this star-turn to Khalid Sheikh Mohammed?  Why give this international megaphone to the remnants of al Qaeda?  Why bestow world-wide celebrity status on this terrorist?  Why give KSM the martyrdom he so desperately relishes—in Herculean proportions? 
 
3.  MOST CURIOUS.  Nothing about the Khalid Sheikh Mohammed case seems remotely suited to adjudication in a federal civillian court. The Kuwaiti-born international terrorist is not an American citizen.  He was not living in the United States while he orchestrated the mayhem and destruction his jihadist soldiers visited upon us.  He was not apprehended and/or detained under domestic federal authority.  In fact, his capture was a military operation under assorted flags and carried out in the dead of night.  By all accounts, he was not read his rights.  He was not allowed to remain silent.  He was denied access to an attorney.  He was, in fact, interrogated with extreme prejudice—water-boarded 183 times—a procedure many reasonable people believe qualifies as torture.

If we were to sincerely and faithfully accord KSM the sacred rights guaranteed to Americans under the Constitution, even in the light of his dastardly deeds, he would most certainly go free.  How could any evidence obtained as a result of, or even remotely connected to, his “unconstitutional” arrest and interrogation be admissible in a federal court?  How could a federal proceeding in this case be anything other than farce?  Therefore, if we choose not to treat KSM as a regular defendant in federal court, which we clearly cannot do, why bother with federal court at all?

As Alan Dershowitz argued in his piece for the Globe and Mail this morning, “in this case, the United States will be on trial as surely as Mr. Mohammed.”

An Aside: the Dershowitz piece is worth the read, as he elucidates point by point the myriad disadvantages and obstacles present in trying this case in federal court.  Then, WHIPLASH ALERT, in something of a non sequitur, the famous legal scholar and civil liberties advocate wholeheartedly endorsed the actions of the Obama justice department.

Bottom Line: Khalid Sheikh Mohammed is a vanquished but unrepentant and still potentially lethal foe of the United States of America.  We need to either detain him indefinitely or kill him.  We have a process in place to accomplish this necessity.  We should utilize it.  Who would argue that there is NOT justice in that scenario?

On the other hand, what we should NOT do in any circumstances, consciously or unwittingly, is employ this miserable villain as a vehicle to castigate those who willingly braved the physical, ethical, and moral burdens to keep the rest of us safe.  With all due respect to Professor Dershowitz, we should not use the disposition of Khalid Sheikh Mohammed to assuage our own consciences and/or put America on trial.  We risk too much with that self-indulgent exercise.
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Election Day 2009: a mixed message

The Headline: GOP scores two BIG wins!!!
The Subtext: conservatives swallow a nagging and somewhat disconcerting loss

What did Tuesday mean?

LOUD & CLEAR

1.  The much-trumpeted Barack Obama-induced permanent party realignment looks DOA.  The Age of Obama may need much less ink in future history textbooks than previously estimated.  Maybe this is merely a bump in the road--and the next chapter in the Barack Obama story is a roaring comeback.  But, right now, the Democratic Deliverer seems all too human. 

Bottom Line in re Obama: we now know beyond a shadow of a doubt, on the right day, given the right circumstances, he can be neutralized and defeated quite handily.

2.  The reports of the Republican demise have been vastly exaggerated (my vote for the most apt cliche of the day).  Americans like the two-party system.  Americans like opposition.  No matter how dark things look for one of these two major parties, there is always light at the end of the tunnel.  Voters love to "throw the bums out."

3.  We live in an era of great uncertainty.  That translates into electoral volatility.  Hold on to your socks.  You are only as safe as your last election.

MORE MURKY

1.  It sure looked like it was the economy, stupid.  But, what does that mean exactly?  Was it unemployment?  high deficits?  sustainability?  health care?  cap and trade?  bailouts?  the impotent stimulus?  the profligate spending?  the weak recovery?  what?

2.  Neither has the Age of Glenn Beck fully arrived.  Not in NY-23 anyhow.  Sarah Palin, Tim Pawlenty, Fred Thompson, and talk radio used their clout within American political culture to ensure that NY-23 would be a featured national race.  But, in the end, the conservative horse faded down the stretch.  What does this say about the long-held conservative mantra, "run a true-blue movement conservative--and they will win"?

Hoff man ran as a Glenn Beck-loving, Tea Party-attending, Jimmy Stewart-esque, grassroots conservative.  If the Hoffman model had prevailed last night, we would have awakened to a new political world.  Stacked on top of the VA and NJ gubernatorial races, a Hoffman victory would have been an earthquake.  Palin, Pawlenty, and Thompson would have been holding court all day--on every channel with arms raised, smiling, and arguing over authorship of the Hoffman phenomenon.  Dems would have been running for cover.  Moderate Republicans would have been virtually ruined for at least an election cycle.

But, alas, Hoffman did not win.  Instead, NY-23 elected a Democrat for the first time in over a century.  Democrats can rally around this single bright spot, which actually has some meaning: one more Democrat in the House of Representatives.  More importantly, for the GOP, every middle of the road Republican is writing a column today in which he asserts that moderation is the true path to party resurgence (and he can make a compelling case based on the facts).

Take this to the bank.

What we know for sure?  November 3, 2009, was a snapshot.  It has meaning--but there is no guarantee that these three canvasses presage future events.  While it is true that the last time a Republican won election in New Jersey, the Republican Revolution of 1994 followed the next year, and the Democratic take-back of 2006 came on the heels of the election of a Democratic governor in Virginia in 2005, we cannot know what the political landscape will look like next fall.  Stay tuned.  Take nothing for granted.  The fight for the hearts and minds of the American electorate is in full bloom.
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Timeless Wisdom of the Farewell Address

Note to Readers: this essay appeared on HNN back in September under the title, "Why It's Time to Face the Hard Truths Embraced by George Washington."

In his celebrated Farewell Address, George Washington bequeathed to us a series of shrewd observations. Reflecting the vast experience of an extremely practical national leader, as well as the prevailing philosophy of the American Revolution, his valedictory instructions include a common sense economic roadmap for long-term national strength and security.

“Cherish public credit,” Washington counseled. Employ it sparingly. Spend public money frugally. Avoid costly and unnecessary wars. Judicious spending on defense is wiser than inviting aggression through weakness, and sometimes exigencies necessitate appropriating public money, but do not mortgage the future. Always pay your own way.

Each political age bears a solemn responsibility to pay down debt during times of peace and prosperity. Do not burden future generations with your profligacy. To pay down debt, government must tax. While taxes are always inconvenient and unpleasant, in a physical world in which consequences inevitably follow actions, taxes are obligatory.

Equally important, Washington asserted, good government is responsible government. Government must be worthy of our taxes. Our elected officials are ultimately responsible for holding down spending, but, in truth, public officials are hostages to public opinion. Expenditures will reflect the popular will. We the people must demand responsible government.

While much of Washington’s advice flies in the face of modern political practice, perhaps our lifeline in this tumultuous sea of uncertainty is a return to classic common sense.

Where are we now? We currently possess a national debt that is 57 percent of our gross domestic product (GDP). According to the latest projections, we are headed for a national debt that will grow in excess of 77 percent of our GDP over the next decade (and those predictions may well be optimistic).

How did we get here? In short, well-meaning twentieth century "tax and spend" liberalism, arguably necessary and successful for a time, ultimately yielded the stagflation, systemic insolvencies, and malaise of the 1970s. As a well-intentioned alternative to over-taxation, market conservatives offered what tragically amounted to "borrow and spend," which produced another season of high times but ultimately led us to our current desperate moment of reckoning.

Is there a solution in the wisdom of the past?

First and foremost, we must heed Washington’s admonition concerning taxes. As illustrated above, we are amassing a national debt that poses an existential threat to American independence. True commitment to American liberty requires that we raise revenue and cut expenses—and do BOTH of those things in a meaningful way.

An important tenet of the twentieth century small-government-conservative economic worldview held that low taxes would starve government into more frugal behavior. With less money available to spend, the theory asserted, Congress would necessarily cut back proportionately on expenditures. Our generation witnessed the failure of that experiment. Even as tax rates plummeted, government and government spending continued to swell at an alarming pace.

Given our present emergency and current trajectory, we must fall back on a more direct approach. Reason dictates that we collect revenue commensurate with our spending plus enough extra money to retire our colossal collective debt on a feasible schedule. As a consequence of our decades-long descent into extravagance, remedial taxation will be painful.

In regard to changing long-term patterns of national behavior, perhaps the only answer lies in taxing ourselves so that we ALL feel the pain of taxation. By “all” I mean every single American—no matter his or her socioeconomic rank. For those who pay no taxes, every government program is a good one. On the other hand, if we all pay taxes, we are all invested in good stewardship and a more responsible government.

We must summon the discipline to rebuke politicians who pledge lower taxes for 95 percent of us while promising more government services for all. We must transcend the tantalizing sophistry that the masses will benefit from a tax structure that only "inconveniences" the fortunate few. It is time to face reality. Those numbers do not add up.

It is time to commit ourselves to frugality and moderation. We should embrace the manifest truth that sustainability, living within our means, is our primary national priority. The transition back to fiscal health will not be pleasant—but it is time to transform our indulgent way of life.

While George Washington certainly suffered partisan thorns in his flesh, he was the first and last president of the United States elected without the benefit of a political party. I am not advocating the demise of the two-party system in America, but maybe we can all walk to the middle together—at least temporarily. To survive, conservatives must necessarily give up the dream of a benevolent global "Empire for Liberty." Likewise, liberals will have to concede that a welfare state is impractical.

Of course, this compromise is easier suggested than implemented. The concessions will be painful, even more so for Americans unaccustomed to accepting limits. With a more modest federal government, our domestic safety net will have holes and good people will slip through the cracks.

When the United States stands down as policeman to the world, a large cohort of friendly and peaceful nations will need to militarize in order to protect their own interests. The world will be a much less stable place without American military might guaranteeing the free flow of oil and commerce all over the globe. We can only guess what chain of events this new world order will initiate.

On the other hand, what are the alternatives?

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Liberty and Power

Note to Readers: I originally wrote this piece in the midst of the debate over presidential authority during the spring of 2006. While that original context is necessary, I continue to believe that this basic historical narrative offers a constructive shorthand explanation of the essential tension in the American political system.

LIBERTY AND POWER: a necessary and constructive tension

Benjamin Franklin purportedly cautioned: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” Although the provenance of that statement is not without questions, the quote accurately reflected the spirit of the Imperial Crisis and the American Revolution. When Franklin and his compatriots finally “pledged their lives, their fortunes and their sacred honor” to a War for Independence, they perceived themselves fighting to maintain their rights against a renegade government illegitimately accumulating power and threatening liberty.

Once liberty was defended and independence won, however, Americans found governing more problematic than many of the revolutionary slogans had implied.Motivated by the conviction that “power was the enemy of liberty, but too much liberty was also the enemy of liberty,” the convention in Philadelphia in 1787 yielded the Constitution, which created a more centralized government and traded some liberty for stability.The framers created a federal system in which the national government shared sovereignty with the states, at the same time asserting the supremacy of the new consolidated government.

Although the Constitution backed away from the rhetoric of 1776, the framers showed respect for their revolutionary experience and bowed to their political reality. They placed limits on the new government, and they divided power into three branches, charging each component with oversight of the other two in order to provide “proper checks and balances.”

The framers would be struck by the current form of their handiwork as it has evolved over the course of two centuries. Notwithstanding, the problem that they identified as the central dilemma of Republican government, the tension between power and liberty, has remained constant in American history.  And the antidote that they prescribed, competing sources of power, “counteracting ambition with ambition,” creating institutional interests and pitting them against rival interests, has served remarkably well to protect liberty from power over time.

The ancient problem and the eighteenth-century curative speak to an important current question: how much power shall we allow the President to exercise in exchange for security in a hostile world?  How much power is too much?  When does the power of the presidency pose an unacceptable threat to our liberty?  These questions are not unprecedented. Much of our present dilemma is systemic and historical. 

There is no place on Mount Rushmore for presidents who remained satisfied with the scope of their power; Generally, presidents attempt to enlarge the power of the presidency; it is an institutional instinct. Having said that, no practiced student of American history would trust ruling presidents to determine wisely the limits of their own power.That role falls to the other branches.

In addition to those provided in the founding document, extra-constitutional interests have emerged in contemporary politics as powerful players in the oversight of presidential authority. These agents include the opposition party in our two-party system, the free press and the giant federal bureaucracy, all of whom have contributed to the current examination of presidential power.  As a result of this healthy debate, the legislative and judicial branches, which remain potent and jealous interests, ultimately and rightly, will determine the extent of presidential authority in this latest chapter concerning power and liberty.  

Of course, all of these institutions serve merely as surrogates for the people. The power undergirding all these branches (constitutional and otherwise) is rooted in popular sovereignty.Benjamin Franklin, commenting at the close of the Constitutional Convention, optimistically predicted that a well-administered Republican government could last indefinitely. But the pragmatic Franklin also worried that self rule could easily “end in despotism…when the people shall become so corrupted as to need despotic government, being incapable of any other.”  The gravest threat to liberty comes when the people abdicate their crucial role in the process. May an enlightened debate with regard to the balance between liberty and power continue to flourish.
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