Skip to content

Abuse Of The Constitution

November 17, 2009

Fox News senior judicial correspondent Judge Andrew Napolitano claimed on “The O’Reilly Factor”  last night that the Constitution and Federal trial rules required a civilian trial of Khaled Sheikh Mohammed and several of his al Qaeda cohorts in the jurisdiction where their ‘crime’ was committed.  Napolitano is so far off base on this issue that his credentials as senior judicial correspondent should be re-assessed by Fox News before he is allowed to appear again in the guise of a legal expert.  

In fact this latest Napolitano blunder is even more preposterous than his claim several weeks ago on “The O’Reilly Factor” that  it would be unconstitutional for Congress to ban illegal aliens  from participating in any health insurance plans,  particularly the public option.  His arguments amount to an abuse of the Constitution which, as Supreme Court Justice Robert H. Jackson once said, is not a “suicide pact.”

Khaled Sheikh Mohammed (or KSM for short) is an illegal alien combatant, who was caught abroad in the theater of war and who committed his offensive act of war of masterminding the 9/11 attack abroad.  He was obviously not on the planes that hit the World Trade Center, nor is there any claim that he had entered the U.S. prior to the attack as part of his planning and preparation for the attack.  The fact that the end result of the plot that he hatched occurred in New York does not give KSM jurisdictional links to New York that would entitle him to a civil trial in New York, as Napolitano asserts.    

In fact, even if KSM had been in New York as part of his planning and preparation, it would not make any difference under Supreme Court precedent.   In a case involving eight Nazi saboteurs who did enter the United States by submarine in two groups to launch their attack – one landing on the coast of Long Island, New York, and the other at Ponte Vedra, near Jacksonville, Florida –  the Supreme Court held that President Franklin D. Roosevelt had the authority to establish a military commission, which subsequently tried, found guilty, and suggested punishment for the aliens.  Roosevelt had issued Proclamation No. 2561 — “Denying Certain Enemies Access to the Courts of the United States”.

Napolitano claims that the current situation is different because KSM and his cohorts did not commit an act of war on behalf of any nation that was at war with the United States, as the Nazi saboteurs were preparing to do.  That is a meaningless distinction in this context.  Al Qaeda is an organized group that had been operating from bases given sanctuary in Afghanistan when the 9/11 attacks were planned and carried out.   Osama bin Laden had specifically declared war on the United States twice during the 1990’s. 

Military commissions, operating under procedures approved by Congress and subject to review by the federal courts,  provide alien enemy detainees with sufficient due process protections without creating a circus of propaganda for al Qaeda to exploit and without forcing the release of classified intelligence or endangering counterterrorism efforts, which the normal rules applied in ordinary criminal trials in our civil courts might well do. 

Evidently, even the Obama administration intends to try some of the Guantanomo detainees before a military tribunal.  What is the constitutional basis for bringing the most dangerous al Qaeda leader to New York and putting New Yorkers in danger of a reprisal attack while leaving the fate of lesser known terrorist suspects up to a military tribunal?  There is none.  This is all about causing political embarrassment to the Bush administration as details about CIA interrogation techniques, including waterboarding, come out as part of KSM’s defense.

We are at war with a ruthless enemy that wants to destroy the very Constitution that the Obama administration now wants to use to provide their leaders with full legal protections in a criminal law trial.  Any blood that spills directly or indirectly as a result of this circus will be on the hands of President Obama and his Attorney General Eric Holder. 

Advertisements
26 Comments
  1. November 17, 2009 8:09 am

    I’m not an expert on law, so I am attempting to read as much as possible on whether or not our country is properly following the Constitution. This trial has produced some extremely interesting give and take which has really left me on the fence. I am pleased that we are at least attempting to properly interpret the Constitution. I was very distressed, however, to hear Bill O’Reilly’s comment to Napolitano during their exchange last night. He flat out stated, “I don’t care about the Constitution.” That is an attitude that has gotten us in trouble in the past and one that is too often demonstrated these days.

  2. John Davidson permalink
    November 17, 2009 8:37 am

    Since the constitution was implimented at the onset of this nation, we have had too many people finding someway to bend it to their own needs; not for those whom it was written.

  3. Theodore Blunt permalink
    November 17, 2009 8:39 am

    The framers of the Constitution were the best minds of their day, Their ability to state ideas in plain language does not exist today. The Constitution can be read by those not so well educated and understood. Where it gets murky is when lawyers try and do read things into the Constitution that were nerer stated there. Lawyers make jobs for themselves. I believe it wes Mr Lincoln who stated that if there was one lawyer in town he would be a pauper, when another settled there, they would soon be the richest men in town

  4. November 17, 2009 8:56 am

    I think the Obama administration is quite correct in dealing with Guantanamo and the unresolved limbo status of these individuals. I am student of FDR and a member of the Roosevelt Institute. I have read extensively on the saboteurs, who were captured after landing on Long Island and I do not see that situation as a precedent for the all time. For my own money, I would do away with them. But we are a country of laws and we have had a problem here and overseas with the perception of having a double standard when it comes to justice. The Bush Administration fostered that perception by using every tactic available to circumvent our own law. Do not blame Obama and the Justice Department for trying to right the wrongs of the previous administration that has dug us deep holes when it has come to unfunded, expensive, foreign quagmires, energy dependency, porous borders, financial failures, a prolonged recession, and unhappiness of our allies. The Bush legacy of deficits and deceit won’t be cured over night. The haters on the right seem to have no interest in the welfare of our country, but put the greedy over the needy at every turn. How much division do we need? The right should look for solutions, not unjustified venality.

    Richard J. Garfunkel
    Host of The Advocates
    wvox radio 1460 am – NY
    http://www.wvox.com

    • John Davidson permalink
      November 17, 2009 9:12 am

      I am glad you started your summation with the words, “I think”, because the substance of your disertation implies that the Democrats have nothing to do with all the problems beset this nation.

      How preposterous can you be? If you can’t see that both parties must assume responsibilty for this mess, then your viewpoint demonstrates cleary why we cannot solve problems.

      Promote your talkshow somewhere else, too.

      • Kevroc permalink
        November 17, 2009 11:09 pm

        No worries, anyone with half a brain in NY listens to 970am.

        Except 9:00am where there is a difficult decision to make between Gallagher on 970am or Beck on 710am.

        Personally, I listen to Mike and I subscribe to Glen and listen to the stream online later in the afternoon…

        Also, as a lifelong NYer, if one drop of blood spills on our streets because of this circus, they should throw them all out of office. I’m dead serious, this city is not a punching bag. I don’t want this target on our backs, thanks for asking… oh wait, you didn’t.

        But, again.. you know what is best for us, right Barry?

    • Joseph Klein permalink
      November 17, 2009 10:05 am

      It is time to stop blaming the Bush Administration for Obama’s many failures as President over the last 10 months. Even with unemployment up nearly 40% since Obama took office, a deficit that has tripled, dithering on changing or upholding his own previously announced strategy in Afghanistan while more American soldiers are dying, and Obama’s ineptitude in handling Iran which is making a mockery of his efforts at “engagement”, the Obama administration’s decision to put New Yorkers at peril and risk compromising intelligence sources and methods in order to show how ‘fair’ we are to our worst enemies is their most atrocious decision to date. To criticize the Obama administration for abusing the Constitution in this way is not right-wing “venality”. It is common sense.

      • BARB permalink
        November 18, 2009 6:14 am

        READ THE NAMES

        http://icasualties.org/oef/ByTheatre.aspx

    • November 17, 2009 10:47 am

      Typical animatronic response, R.G. Such canned rhetoric would play well in some Disneyesque “Dogmatic Liberals of the Caribbean.” It’s not like we haven’t heard this tedium before. But your cards really blow up in your face with the biggest poker tell that ever comes from the Left: “The haters on the right,” reveals everything one needs to know about the hand you’re holding. It’s weak.

  5. In the Know permalink
    November 17, 2009 9:11 am

    Please, continue to cut and paste leftist talking points. Look for solutions? Do yourself a favor, rent a car and drive out of your leftist fortress; then, LISTEN. You say the right has not provided solutions, BS! You have been given acceptable, affordable healthcare reform that would help the people who need it. It excludes the Unions, special interests, LAWYERS (yes trial lawyers who make money they do not deserve) and greedy corporations (who you claimed were so evil for 8 years and now shack up with every night). Those solutions from the right never see the light of day on your networks (controlled by elitist ideolouges), in congress (killed in comittee by “bipartisan” leftists), or in the states (bludgeoned by federal mandates that force states to comply or “suffer the consiquences”). So, Mr. radio personality, did you do any research regarding these solutions or, did you copy and paste talking points that your network masters fed to you?

  6. SanePerson permalink
    November 17, 2009 11:13 am

    I was pretty surprised to hear Judge Napolitano voice these opinions. I thought he had some sense. Now he sounds “out there”.

    • Colette permalink
      November 19, 2009 12:43 am

      ……I THINK he is a “V”……

  7. November 17, 2009 12:11 pm

    “I have read extensively on the saboteurs, who were captured after landing on Long Island and I do not see that situation as a precedent for the all time. ”

    Well, that’s one way to deal with inconvenient precedential jurisprudence.

    “For my own money, I would do away with them. ”

    Of course you would. So would Hugo Chavez, the Castro Brothers, Mahmoud Ahmadinejad . . . You’re in good company.

    “But we are a country of laws and we have had a problem here and overseas with the perception of having a double standard when it comes to justice. ”

    And we wouldn’t want the world (which is still mostly a very dark place, with leaders like those above being the norm) to have the wrong impression of us, would we? The world should LOVE us, and nothing is more important than universal LOVE of the United States by ruthless totalitarian regimes like Iran and North Korea.

    “The Bush Administration fostered that perception by using every tactic available to circumvent our own law. ”

    Tactics like going before the U.N. numerous times, trying desperately to prod that august deliberative body to actually DO SOMETHING? Tactics like liberating millions (MILLIONS) of Muslim women and children from bondage in Afghanistan and torture/rape rooms in Iraq? Those kinds of tactics?

    “Do not blame Obama and the Justice Department for trying to right the wrongs of the previous administration that has dug us deep holes when it has come to unfunded…,”

    Unfunded like the trillions of dollars of our future great grandchildren’s wealth that Obama has squandered to pay off his political cronies?

    “expensive, ”

    Expensive like the federal takeover of the health care system aka “Obamacare” that will be funded on the backs of seniors who will simply have to face reality and take a pain pill?

    “foreign quagmires, ”

    Foreign quagmires like Afghanistan that Obama has been dithering over for MONTHS, prolonging a war that could be well on the way to it conclusion by now had our Ditherer-in-Chief the stones to commit the troops necessary back in March of this year?

    “energy dependency, ”

    Oh, and Cap and Tax Tax Tax will surely make us less dependent on foreign oil, right? Embracing 19th century technology (solar and wind) will NOT make us less dependent on foreign sources of energy. It’s contralogical, irrational, and just plain STUPID.

    “porous borders, ”

    Bush and McCain tried desperately to pass so-called “Immigration Reform” (aka Amnesty, aka Reconquista), but failed mainly because my friends and I rose up en masse and shouted in one clear voice “NO!” Don’t blame Bush alone for porous borders. Blame every POTUS since Kennedy. Even Reagan. The so-called “Border Fence” is slowly being built, much to the chagrin of democrats.

    “financial failures,”

    Fanancial failures like Fannie Mae and Freddie Mac, overseen by the like of Democrats like Dodd and Schumer for a generation? Financial failures like Medicare, Medicaid, and Social Security that have unfunded liabilities in the umpteen trillions of dollars?

    “a prolonged recession, ”

    Don’t blame Bush alone. He may have toyed with the fantasy using socialism to save capitalism, but Obama is pushing full steam ahead, no holds barred. This recession may last a generation, thanks to Obama. And make no mistake – This is Obama’s economy, not Bush’s. Whatever happens down the road is all Obama.

    “and unhappiness of our allies. ”

    Unhappiness of our LEFTIST allies, perhaps. Great Britian, Australia, France, Japan, others seem OK with us.

    “The Bush legacy of deficits and deceit won’t be cured over night. ”

    Wow. This has to be the worst case of BDS I’ve seen in a long, long time. And I suppose the world record-setting deficits of the radical Obama administration don’t count? It’s not the highest deficits in a generation. It’s not even the highest deficits in the last 100 years. These are the highest deficits in WORLD HISTORY at about $80,000,000,000,000.

    “The haters on the right seem to have no interest in the welfare of our country, but put the greedy over the needy at every turn. ”

    Haters like Jeremiah Wright? Bill Ayers? Bernadine Dohrn? Van Jones? This is a classic example of The Pot calling the Kettle Black. The real haters are on the Left side of the political spectrum. Intolerance is on the Left. True racism is in evidence every single day on the Left. Greed? You want a great example of rapacious greed? Take a look at Al Gore. How much is this snake oil salesman worth nowadays? Hundreds of millions? How about Michael Moore? Talk about rampant, unbridled capitalism! Oh, and George Soros. What about him? Isn’t he motivated by greed? And what about the Hollywood elite? Aren’t they greedy?

    “Greedy over the needy.” Sounds like something Jeremiah Wright would should from the pulpit.

    • donnamarie permalink
      November 18, 2009 3:22 pm

      Excellent response. I could not have responded better myself-and I even tried to do it before I read yours but I was so angry that I was not making any sense.

      I still would like for him to name which nations are more fair or just than the United States.

  8. November 17, 2009 12:15 pm

    Correction: “Greedy over the needy.” Sounds like something Jeremiah Wright would shout from the pulpit.

  9. Cas Balicki permalink
    November 17, 2009 2:25 pm

    Oh, and Cap and Tax Tax Tax will surely make us less dependent on foreign oil, right? Embracing 19th century technology (solar and wind) will NOT make us less dependent on foreign sources of energy. It’s contralogical, irrational, and just plain STUPID.

    Here is another thing for you to think about Chris Rowan:

    There are two formulae for measuring energy, the first E=mv2 (E=mv squared) and the second E=mc2 (E=mc squared). The first formula would be used to calculate the energy produced by, say, wind or water, in which case ‘v’ equals at maximum velocity of sixty to seventy miles per HOUR. In the second instance the formula expresses nuclear energy potential. For those not hip to the jive, in this second equation ‘c’ equals 176,000 miles per SECOND, the speed of light.

    Does anyone want to guess which form of energy is likely to be the wave of the future? So, unless you’re on a bicycle tour of Holland, don’t bet the farm on windmills giving you much satisfaction.

  10. Abraham83 permalink
    November 18, 2009 4:57 am

    This is not the first time that Judge Napolitano has come down on the side of terrorist ‘rights’. There is a YouTube video of a speech he made attacking the Patriot Act as an infringement on civil rights, part of a general attack then being launched by the Democrat Party and the left. He used two elderly women victims as his case in point and his clinching counter-example to otherwise nullify a law protecting the US from terrorist acts.

    As usual, such counter-examples are used as debating points–and as standins for legal precedent in the courtroom. However, the two are not co-equal as the the later only has merit after considered judicial opinion in specific cases, and the former only works in closed, logical axiom systems, not the real world. For instance, McCarthy’s bombast and occasional wild accusations in the 1950s have always been used by the left and their supporters generally to protect themselves from charges of sedition and cooperation with our enemies. Japanese internments, also, are brought up as an argument-closer when it comes to controlling alien supporters of our enemies: we now have to live daily with the ubiquitous fear of jihadist attacks and Islamist penetration of our government and society because of such arguments.

  11. John L Work permalink
    November 18, 2009 5:38 am

    Naolitano is beginning to sound like Obama’s minions in the White House – the ones with Marxist backgrounds.

    Sorry, Judge, you’re just plain wrong. This dude is not an American citizen, he was not in the country when he was arrested, he’s a terrorist and in a sane world he would be tried in a military tribunal and shot dead as a non-uniformed combatant.

    Eric Holder is deliberately bringing this to New York to put the Bush Administration on trial as torturers of Muslims, to move Obama’s political agenda along the path.

    While Napolitano has the right to say what he wants to say, he’d be a much better fit on MSNBC or CNN. I’m sure those two networks would welcome him with open arms.

  12. BARB permalink
    November 18, 2009 5:58 am

    A previous commenter posted :

    “I am pleased that we are at least attempting to properly interpret the Constitution. I was very distressed, however, to hear Bill O’Reilly’s comment to Napolitano during their exchange last night. He flat out stated, “I don’t care about the Constitution.” That is an attitude that has gotten us in trouble in the past and one that is too often demonstrated these days.”

    I was also SHOCKED when I heard O’Reilly YELL out “I don’t care about the Constitution”. Hearing that stmt…I lost all respect for him.

  13. Mike permalink
    November 18, 2009 6:29 am

    The Constitution was written very clearly and plainly, and it is irrelevant to the discussion whether we were attacked by an organized nation or a gang of thugs. It is an act of war perpetrated on the American people, and should be dealt with as such. The Constitution applies to those who are organized as Americans and accept it as a governing document, the terrorists do not acknowledge its power and authority, therefore, they are not privileged to enjoy its protections.

  14. doubleblack4 permalink
    November 18, 2009 12:03 pm

    Dear Mr. Garfunkel,

    Our country is not a country of laws and no country on earth has ever been a country of laws.
    To wit: All countries are both men (women) and laws. As Justice Breyer said, to paraphrase, all writing is subject to interpertation. In a short sentence this is how it is. Men write the laws, men interpert the laws, men adjudicat the laws.
    That is why lawyers exist and of course make their money.
    Get the picture?

  15. Colette permalink
    November 19, 2009 12:47 am

    If this happens in New York, don’t we as citizens have a right to meet for, let’s say….
    “A Day of Prayer At the Park” like they did in 2007?

  16. Victor permalink
    November 19, 2009 1:11 am

    Man here we go again .. FIRST OFF:

    Has anyone ever wondered why there is only ONE pic ever shown for this guy?

    … HHMM

    Ill tell you why, CUZ HE IS DEAD, he died in a Pakistani raid years ago.

    You may be asking,
    … why did they say he’s alive a year later after his reported death?

    Well the answer is TO KEEP THIS WAR ON TERROR GOING ON FOREVER.

    I mean if he is dead then its over, if Bin Laden is dead, its over but its not.
    Ever wonder why there is no more VIDEO released by him only so called Audio?

    When forces apparently caught Sheikh Mohammed they had a hood over him as he was quickly put in a car and taken away. It could have been ANYONE under that hood…. WHY NOT SHOW HIS FACE FOR THE WHOLE WORLD TO SEE?
    … HHMM

    Whoever slit the throat of Daniel Pearle had their faces covered, WHY WHY
    I mean why not stick it to the USA by showing your face, who would care your out fighting and if it was Sheikh that did it then why cover your face.

    Again this sad depressing pic of Sheikh Mohammed is the same one use, OVER AND OVER AND OVER AND OVER AND OVER AND OVER
    .. something is wrong with that, dont you think

    I mean they showed video pics of Saddam Hussein’s sons whey they were killed, so why not show Sheikh’s face … hhmm

  17. Victor permalink
    November 19, 2009 1:15 am

    Did he Die, or NOT ?

    http://www.atimes.com/atimes/South_Asia/DJ30Df01.html

  18. Will permalink
    November 23, 2009 5:52 pm

    The Judge’s analysis is in fact correct. Since the Bush administration did not seek nor receive a declaration of war from congress, in which they could have legally named al-qaeda as a non-state adjunct of afghanistan, the only constitutional venue for these crimes is in civilian court. The precedents from world war 2 that the author cites took place under a formal declaration of war and are only applicable when such a declaration is given. This is what happens when those in power in washington play fast and loose with the constitution.

  19. December 5, 2009 12:11 pm

    Eleanor Roosevelt happened to say, “The greedy vs the needy!” The right wing fiction writers, inside and outside of Congress, are trying to spread the blame to the Democrats for the Bush Administration’s incompetance. Rave on! The Bush Exceutive Branch had control of Congress for six years and the Democrats should have been as obfuscating as the current crop of Republicans who oppose everything, and contribute nothing but flat-earth, flat-tax thinking. Women’s rights, civil rights, labor laws, wages and hours, Wall Street regulation, social safety nets, fair taxation, work safety nets, and scores of other modern reforms have been constantly opposed by the GOP since McKinley. Wing-nuts can label this cut and paste leftist talk, but the facts are the facts, unemployment has gone down in every Democratic Administration and risen in 7 out of 9 GOP administrations since 1928. Get real you plutocrats, start paying your fair share of taxes, end the golden parachutes and corporate welfare for big business, and start competing. Too many tax loopholes, too many petro dollars to OPEC and too many dollars flowing from Walmart to China! Besides all of that, in the 75+ years since Hoover’s administration ended, an individual investing money in Democratic Admionistrations vs GOP-led ones would have done about 10 times better! The Bush Years are the worst since Hoover, and he maybe our worst president ever. So blaming Democrats to mask the Bush disaster is a fool’s journey!

    Richard J. Garfunkel
    Hosto of The Advocates
    WVOX Radio 1460 am
    http://www.wvox.com

Comments are closed.