- The Washington Times - Wednesday, March 17, 2010


The waffling of the Obama administration on the question of how to try Khalid Shaikh Mohammed and other purported Sept. 11 plotters is just the latest example of how political expediency appears to rule over law at every turn. In several contexts, this administration has demonstrated that President Obama’s Harvard Law pedigree seems to have provided him with less respect for legal requirements than was possessed by Team Bush and its supposed “cowboy” leader.

One does not need to be a law-review editor to see the problem with the KSM situation. The president and Attorney General Eric H. Holder Jr. have told us for months that the rule of law dictated that KSM be tried in civilian courts, where they would have the benefit of counsel, rules of evidence, a right to remain silent, a presumption of innocence and other safeguards guaranteed to (at least) American citizens under the Constitution, as opposed to military tribunals where such protections were not available to enemy combatants. This seemed absurd to most observers because the “defendants” are not American citizens or lawful residents and had not been captured in the United States. Giving them such protections for acts of war seemingly dissolved the distinction between war and law enforcement.

Nevertheless, the administration forged ahead with its plans, which were supposed to show the world how a “real” democracy - i.e., one not run by George W. Bush - did things. Making the situation more curious were the statements of the president and attorney general as to the certainty of conviction. How can there be due process if the outcome is a foregone conclusion? Even if based upon a dubious - if not flatly erroneous - premise, this approach at least had the virtue of consistency.

Now, in the face of opposition from community leaders regarding the financial cost and security-related burdens on local residents of such civilian trials, the administration is reconsidering and contemplating military proceedings. If such proceedings were unconstitutional three months ago, how are they suddenly constitutional? There is nothing in the Constitution permitting the suspension of rights where it becomes “unduly” expensive or inconvenient to uphold them. To the contrary, the Constitution exists to provide to Americans certain “fundamental” rights - i.e., rights that are there under all circumstances. Using this more flexible approach means that the door is open to suspend rights otherwise available to any prominent criminal defendant in which a traditional civilian trial would involve substantial burden or expense for security or otherwise.

The president’s comments regarding the Supreme Court about the Citizens United case during his State of the Union address also reflect some confusion about the meaning of the Constitution (in addition to the etiquette associated with such a critique of justices seated 20 feet away). In calling on Congress to pass a new statute to redress the “error” by the court, the president lost sight of what the court had said, namely that the First Amendment absolutely barred restrictions on corporate speech. Whether this is good public policy is certainly debatable, but irrelevant. The court - the final and absolute arbiter on constitutional issues since Marbury v. Madison - made clear that no restraints on corporate speech going beyond those on individual speech are allowable. As such, there is nothing Congress could do.

Even in a totally different context, the bias in favor of expedience is clear. In its zeal to push through the Chrysler bankruptcy restructuring, the president’s Auto Task Force successfully prevailed upon the courts to disregard the contractual status of secured bondholders and treat them less favorably than labor unions, which had no such contractual claims. By definition and long-standing American legal tradition, secured creditors must have their claims totally satisfied (at least to the extent of the proceeds of their collateral) before unsecured creditors can get anything. However, in this case, the unions were treated much more favorably than the “greedy” Wall Streeters who held the bonds. Again, arguably good public policy with respect to the need to avoid the potentially paralyzing uncertainty of a protracted legal proceeding, but a very dangerous precedent. Economists universally proclaim that a developed, consistent system of contract law is an essential requisite for economic development, meaning that a departure from such a system may contribute to economic decline.

Whatever our political persuasions, Americans need to insist upon better than this from all administrations. The law cannot be treated by anyone as a mere inconvenience to be ignored when needed.

Martin B. Robins, a corporate attorney, is an adjunct law professor at Northwestern and DePaul universities.

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