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First they came for the communists, but I was not a communist, so I did not speak out. Then they came for the socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew, so I did not speak out. And when they came for me, there was no one left to speak out for me.
– Pastor Martin Niemoeller.

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Courts Make Key Decisions on the War - Monday, March 01, 2010 at 00:04


Courts Make Key Decisions on the War

Are We Crazy or Just Stupid?

David C. Stolinsky, MD
March 1, 2010

The legal definition of insanity is mental illness that causes one to be a danger to himself or others. In criminal law, a person is not guilty by reason of insanity if he does not understand the nature and quality of his action, or does not understand that it was wrong.

Think about these definitions as we discuss our treatment of suspected terrorists. Consider whether those now in charge of our government − in the Obama administration, in the courts and in Congress − are dangers to themselves and others, and whether they understand the consequences of their actions.

How things used to be.

During World War II, we knew we were fighting for our lives − and for our way of life − against Nazi Germany and Imperial Japan. Even strident critics of President Roosevelt shut up and united in the war effort.

As the war progressed, we accumulated about 425,000 German and Italian prisoners of war. Most of them were transferred to America, where they were confined in over 500 prison camps spread across the country. One was near my mother’s home town. They were in the custody of the Army, under authority of the president. None − not one − was successful in having a civilian lawyer obtain a writ of habeas corpus that would place a civilian judge in charge.

These were prisoners of war, captured in uniform on the battlefield, and entitled to the protections of the Geneva Conventions. Still, many died of disease or injuries, were murdered by other prisoners − or were executed by the Army for these murders.

But what about those captured out of uniform, who came to cause destruction of civilian targets? What about those whose actions had stripped them of the protections of the Geneva Conventions? We knew what to call them: “spies” and “saboteurs.” And we knew what to do with them. In 1942, eight Germans sneaked into the United States by submarine, but they were captured before they could carry out their missions of sabotage.

What did President Roosevelt do with the German saboteurs? They were held by the Army and interrogated. They were tried before a military commission. Six were sentenced to death − including a naturalized American citizen − and the other two were given long prison terms. This was done without benefit of civilian lawyers or civilian judges.

Roosevelt insisted that he would execute the men regardless of what the Supreme Court might rule. He told his attorney general: “I won’t give them up…I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?” Roosevelt, the patron saint of liberals, had his priorities straight. He knew we were at war, and that his highest responsibility was the safety of the American people. The six were electrocuted less than two months after they landed.

Roosevelt clearly agreed with these words:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.
Thomas Jefferson

And Roosevelt also would have agreed with these words:

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
− Justice Robert H. Jackson, U.S. Supreme Court [emphasis added]

Jackson knew what he was talking about. He had been chief American prosecutor at the Nuremberg War Crimes Trials of leading Nazis. He had seen what horrors had been stopped by our victory. He dwelt in reality, not in theory.

How things are now.

If you are subject to low blood pressure, may I suggest a way to raise it − perhaps to dangerous levels. Read “Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack.” The title tells the story. But key here is Chapter 7, which describes the pack of leftist lawyers who were attracted to the terrorist detainees the way rats are attracted to rotten meat. The effect in both cases is to make the Earth a more dangerous place.

The chapter details the prestigious law firms that are devoting thousands of free hours to defending those who perpetrated 9/11 and would like nothing better than to stage a repeat performance. Among those firms was one that had an interesting senior partner: Eric Holder.

Yes, that Eric Holder, now our attorney general, the man in charge of prosecuting the very detainees he chose to have his firm defend. The same Eric Holder was involved in the abduction at the point of submachine guns of six-year-old Elian Gonzalez, and the bungled siege at Waco in which 84 people died − including 26 children who were by definition innocent hostages. You can’t say that Holder isn’t tough. You can say that he gets tough with the wrong people.

Nor is Holder the only senior Justice Department official who was involved in defending terrorist detainees. Of course, none of these people has recused himself from taking part in terrorism cases − that would require integrity. There is an old proverb about not putting foxes in charge of the henhouse. But we are doing even worse. We are putting defenders of foxes in charge of the henhouse. How stupid is that?

To paraphrase novelist Stephen Hunter, it is difficult to argue national security with people who do not understand the concept of nation, much less security.

But no matter how misguided the leaders of our Justice Department may be, they could do little harm if they were not abetted by overreaching, power-hungry, ivory-tower judges. Contrast the necessary, life-saving actions of the Roosevelt administration with these recent decisions:

● In Rasul, the Supreme Court ruled that non-citizens detained by our military in Guantanamo, which is not U.S. territory, have the right to challenge their detention in civilian courts. This elevates civilian judges above the president as commander-in-chief of our armed forces, contrary to what the Constitution dictates.

● In Hamdan, the Supreme Court ruled that the military commissions set up by President Bush to try terrorist detainees at Guantanamo must cease, because they lacked authority and did not follow the Geneva Conventions. But the conventions apply to prisoners of war, captured in uniform on the battlefield, not to combatants out of uniform or to terrorists attacking civilian targets. In effect, the court ruled retroactively that President Roosevelt was wrong to execute the six German saboteurs.

● In Boumediene, the Supreme Court ruled that even though Congress had passed a law authorizing military commissions, as the court had required in Hamdan, the law was unconstitutional because it stripped non-citizen detainees held outside U.S. territory of habeas corpus rights. That is, Congress did what the court asked, and the court slapped it down. The court asserted its power to control the conduct of an ongoing war, at the expense of the president and Congress. Petulance plus megalomania equals dangerous hubris.

In his dissent to Boumediene, Justice Scalia observed with characteristic clarity: “A consequence of the Court’s majority decision will be that how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails.”

We have gone from President Roosevelt authorizing the secret and prompt execution of German saboteurs, to the courts insisting on endless legal proceedings held in public − and thereby revealing information that will aid our enemies. We have gone from war being conducted by the executive branch and the military, with the assent of Congress, to war being controlled by the judicial branch − which knows little about national security, and is utterly unequipped to deal with it.

In regard to the question, “Are we crazy or just stupid?” my answer is, “Both of the above.” Here is another question: How long can crazy, stupid people survive in a dangerous world? Soon we will know the answer.

Dr. Stolinsky writes on political and social issues. Contact: