Times Square incident endangers Constitution

The United States Constitution was adopted in 1788; the Bill of Rights, three years later in 1791.  The Judiciary Act of 1789 established a national network of federal courts and prosecutors.  This system of civil justice remains today — well more than two centuries later, and with all its warts and imperfections — what is rightly regarded as the best and fairest system of civil justice in the world. Yet it is increasingly under attack – from within our own country.

Despite periodic detours — such as during the Civil War when President Abraham Lincoln deliberately and repeatedly ignored important civil liberties enshrined in these founding documents — our nation and its people have been well-served by this civil justice system.  Those individuals who would threaten the lives or property of others, or who have in fact deprived others of their rights, have been appropriately prosecuted; even as federal judges ensure the accused are accorded their civil rights as guaranteed in the Constitution. 

Numerous spies, whose actions have endangered millions, have been successfully prosecuted in this system; so have many terrorists, including those like Timothy McVeigh who actually succeeded in their efforts to murder large numbers of innocent people.  The perpetrators of the 1993 World Trade Center bombing were prosecuted, tried, convicted and sentenced in this very same system based on substantive law and procedural safeguards.

Yet, to many in the post-9/11 world, this system of civil justice has become deficient and antiquated.  To these critics, whose lack of faith in our justice system is difficult to comprehend, each time someone now is accused of committing or attempting to commit what might collectively be labeled “acts of terrorism,” they should be removed from our civil justice system and dealt with by the military.  Such procedures as permitting a person to challenge his detention by requiring the government to at least establish in open court a reasonable basis for his detention – the “great writ” of habeas corpus – would be discarded.  These requirements are viewed increasingly with disdain, because they inhibit the government’s ability to interrogate prisoners in ways and for reasons a judge might find incompatible with the Bill of Rights.

Such a dismissive attitude toward our system of justice, presents a clear and present danger to our nation; a threat every bit as serious as are the acts of persons currently facing terrorism charges.

To be sure, the Christmas Eve underwear bomber and the more recent Times Square bomber posed serious threats to innocent American citizens.  While neither of these men could rightly be classified as “Brainiacs,” had they succeeded in their endeavors many lives would have been lost.  We must take their actions, and actions by others similarly motivated to do great harm, seriously.  But we should not – and need not – cavalierly discard the fundamental underpinnings of our system of justice as part of a Faustian bargain.

Acts such as those by the underwear and Times Square bombers took place within the United States; the alleged acts clearly fell within the compendium of American law.  They did not occur in some land far away or on a foreign battlefield.  Whether we like it or not, the Times Square bomber is an American citizen.  Detaining and prosecuting individuals such as these in accord with well-established and constitutionally-based laws and procedures is not just the right choice, it’s the only choice. 

Military commissions, the new darling of the neo-conservatives clamoring for indefinite detention of terrorism suspects, for example, have no jurisdiction to try Americans; nor should they.   Employing mechanisms such as indefinite detention and “enhanced interrogation techniques” may rouse patriotic fervor and slake the thirst for revenge; but they risk having eventual convictions overturned.  More important, such actions move us down that slippery slope at whose end is the very society our Constitution was designed to guard against.

53 comments Add your comment

nelsonhoward

May 10th, 2010
7:26 am

It was a tribubal that judged the defendants at the Nuremberg trials. It even had two members that sat in judgement in full military attire. The Nuremberg trials also allowed heresay evidence to be accepted. Justice Jackson took a leave of absence from the Supreme Court to be the lead prosecutor for the allies. The tribunal was considered very acceptable and allowed the prosecutors to bring to light the henious crimes that the Nazis had committed against the world. They should have a tribunal like that to exspose the terrorism that has been committed against the U.S.

Scout

May 10th, 2010
7:34 am

Bob :

Back when our Constitution was written these guys would have been tried (without an attorney probably), convicted (with no appeal probably) and hanged within the week (if not a few days).

One could easily argue we have drifted far away from the days of what the early Constitution actually meant and allowed for.

Emmerill

May 10th, 2010
7:52 am

Fry ‘em all

Sgt. Benjamin R. Kibbey

May 10th, 2010
8:02 am

If one is to allow the restriction or binding to any degree of any civil liberty in the name preserving the life of even one person, regardless innocence, then demolish the tomb of the unknowns, dig up and desecrate the graves of the nation’s military dead.

These, with children left fatherless or motherless, with parents who would know what it is like to bury a son or daughter — or worse, would never know the final resting place of those they loved; these who laid youth and future on the altar of liberty, who threw their bodies and souls into the breach when freedom was at risk, if you were to ask them, “Which is more valuable, life or liberty?” they would most of them answer that it would be better to throw open all the gates and doors, to live standing in the face of danger than cowering in the shadow of every phantom.

We are a nation built, made strong and vital, by those who knew liberty and freedom are far greater in value than any life; that the opportunity to pursue happiness is worth the risk of failure it comes with. And even to this day, their true heirs clamor for our shores at great risk of life and near-certainty they will be turned back, knowing well the real value of such freedom.

A people will always have the government and nation they deserve; this is without exception. If we are to be a nation that values safety over opportunity, the illusions of security provided by authoritarian means over the liberties my brothers and sisters of this and prior generations willingly died for, believing their children would have the guts to defend the same with their own lives; if we are to spit upon the graves and desecrate the memories of the heroes of freedom, then we will have what we deserve.

I am a patriot to liberty, and I am legion. In this and every generation in all nations of the world, we are many. The United States has long been the homeland of our people, and we have come here in droves. If the children of these heroes prove themselves too weak to preserve the inheritance, it will fall to the true heirs of liberty: anyone, anywhere, willing to give all for the cause of freedom.

middler and so tired of all the rhetoric :

May 10th, 2010
8:09 am

Who would have thought such a well-reasoned and common sense and correct column!

Bill

May 10th, 2010
8:14 am

Bob, glad you no longer represent me. Your thoughts are short sided – this is a war with these folks and like the German prisoners brought to Ft McPherson in WW2 they do not need to go into our justice system.

Secondly – once they attempt an attack it is vital to know if another is immenant – by putting them in the Justice system so they can lawyer up works to defeat this process.

Go work for Holder – that idiot and you would get along just fine

Willibekind

May 10th, 2010
8:27 am

You are right Barr! We tried convincted and executed Timmothy McVeigh but we do not do that to terrorist. The get life in prison where they can indoctrinate and proselytize for new islamic converts. Yes, our justice system just like our politics has become so politically correct our forefathers would have not recognized it. Hey, that is what you believe is it not that the constitution is a LIVING document. How else could judges make law?

Byron Mathison Kerr

May 10th, 2010
8:39 am

Very eloquently stated, Bob. Due process is probably the ultimate American treasure. The fact that anyone would advocate its compromise in this day and age, unfortunately, only highlights the overwhelming success story of the 911 terrorist attacks.

The terrorists killed thousands of people and destroyed valuable property. But it has been us, as a nation, who are responsible for giving in to fear, waging counterproductive wars, and succumbing to the erosion of our own individual civil liberties.

Barack

May 10th, 2010
8:39 am

We should show kindness and tolerance for these wayward patriots. We should sit down and talk and reason with them, you know…negotiate so that we can all live in peace and harmony.

saywhat?

May 10th, 2010
8:43 am

Why are the right wingers such cowards? Why are they so willing to let terrorists win by giving up the rights and freedoms that previous Americans have fought and died for to win and preserve? Is it because the current right wing leadership only has messages of fear for their sheep followers? Today’s conservatives need to grow a pair, man up, and stop soiling their panties every time Fox News, Limbaugh, Hannitty, Beck and the teabaggers et al tell them to be scared over the latest made up poutrage.

OneFreeMan

May 10th, 2010
8:46 am

Did Bob and his fellow teabaggers call for military tribunals when the klan was bombing up the south?

Dan

May 10th, 2010
8:51 am

I think Scout is correct it is the Justice system that has been overly swayed by civil libertarians and moved away from the mainstream, too often criminals who are clearly guilty are freed on technicalities, I believe this is much more common today than even 20-30 years. I am all for ensuring guilt before punishment but due to laws and procedures that are full of grey area, to many dangerous people are allowed back on the street

OneFreeMan

May 10th, 2010
8:51 am

oops…my mistake after reading it all…I agree with you, Bob.

jconservative

May 10th, 2010
8:52 am

nelsonhoward – Nuremberg was a trial of foreigners on foreign soil. Barr is writing about crimes in the US, some by US citizens.

Bill – Like nelsonhoward you are talking about foreigners captured in a foreign country. Barr is talking about crimes in the US committed by some US citizens.

A US citizen is a US citizen with all the rights of a US citizen. There are no qualifyers.

A lot of Americans now think that being safe is more important than being free. Barr is saying that free is more important than safe.

Back in the 1950’s there was a group of liberal types saying “better Red than dead.” All you folks who want to nullify the US Constitution when it comes to some domestic crimes sound just like the “better Red than dead” folks.

Good column Barr!

Jefferson

May 10th, 2010
8:52 am

He will be tried and punished if found guilty. The system works, slowly.

chris

May 10th, 2010
8:54 am

you were money in the borat movie

Keep up the good fight!

May 10th, 2010
9:00 am

Sgt Kibbey says it all. Justice is not a convenience. It is a system of rules and laws not to be tossed away when some give into fears of security.

Dan

May 10th, 2010
9:12 am

I agree with many of the posts espousing the importance and sanctity of liberty and personal rights after all the constitution was created to limit the powers of government. What concerns me is procedures like Miranda, the idea and essence of Miranda is correct and necessary but the ability of a guilty person to walk if it is not properly recited and in the language, preferred by the defendent (even if they understand english) or any other such mundane caveat is the problem and where the current system has deviated from the one that has served us so well for so long.

dtboy

May 10th, 2010
9:26 am

Well put jconservative and Bob Barr. It’s clear that Bob is speaking of the protection of rights for American citizens, not external terrorist. We cannot use fear as justification for circumventing rights.

Chaps

May 10th, 2010
9:28 am

The dividing line is U.S. citizenship. German saboteurs captured on America soil were not given the rights of U.S. citizens. If a crime, even a terrorist act, is committed by a U.S. citizen on our soil… by all means, the Constitution applies. Not a citizen? Military tribunal.

Most of the call for foreign terrorists not to be tried in civil courts comes from the fact that most judges are more receptive to clever arguments and meaningless hair-splitting than they are to finding truth and administering the law.

Ted Striker

May 10th, 2010
9:32 am

Observing constitutional due process with U.S. citizens is the United States purest and best short term and long term defense against terrorism.

Those who want to lay aside the most essential principles of our legal system in favor of something more akin to vigilante justice are in danger of embracing a thought process that is similar to the criminals they seek to punish.

Hillbilly Deluxe

May 10th, 2010
9:32 am

During WWII, a group of German saboteurs were caught in the U.S. and tried before a military tribunal. Several of them were executed. One was a U.S. citizen but he wasn’t among those executed. He was deported to Germany in 1948.

http://www.historynet.com/world-war-ii-german-saboteurs-invade-america-in-1942.htm

anonymous coward

May 10th, 2010
9:44 am

I agree with you completely, Bob. And I might add that the Times Square incident was attempted by a US citizen, not a foreign national. When do we decide that citizens no longer have the right of due process of law? When it’s convenient for the security theater that we have pushed onto everyone in the US?

Boots

May 10th, 2010
9:49 am

I appreciate this thoughtful piece and have absolute confidence in our judicial system.

Further, I deplor the methods of Cheney, Rumsefeld and Bush and distrust any information gained through torture.

Jim

May 10th, 2010
9:57 am

Based on some of the comments that I’ve read and heard on the internet and radio, it’s obvious that Tea partiers are for the constitution in it’s purist form. What I question is how can that be true if your willing to forgo the constitution when it comes to civil justice.

David S

May 10th, 2010
9:58 am

Anyone paying attention will recognize this as Bush’s 3rd term. NOTHING has changed.

lowell

May 10th, 2010
10:07 am

We should not hold them indefinitely. We should try them via a military tribunal and either release them or hang them. We need to save the taxpayers money.

jconservative

May 10th, 2010
10:09 am

David S May 10th, 2010 9:58 am
“Anyone paying attention will recognize this as Bush’s 3rd term. NOTHING has changed.”

Good point. Obama tends to talk liberal but, on occasion, tends to govern from the right. Bush talked conservative but governed from the left. And perhaps the best example of this “bi-polar political behavior”, Reagan who talked conservative but tended to govern from the left.

Neo-Carlinist

May 10th, 2010
10:38 am

Bob, “regarded as the best, fairest system of civil justice in the world…” by whom? Russia? China? Pakistan? Nope, the system is regarded by those who run it; lawyers and poliicians. The Constiution established our government and it will remain a tool of the government, not “of the people”. Sure, it is sprinkled with promises (fingers crossed) of rights, and liberty, but it exists for the benefit of the governement.

Cottmj

May 10th, 2010
10:39 am

Barr Back,

Nice bringing Lincoln and his “unlawfulness” into this argument. Was that really necessary to make your point? All we need is more divisiveness. The outcome of the Civil War was decided in 1865. Welcome to 2010.

Jon

May 10th, 2010
10:44 am

I can’t believe that some commentators cannot see the difference between the Nuremburg tribunals and an American citizen being charged with committing a crime on American soil. The former concerned war crimes and crimes against humanity according to international law, the latter concerns crimes committed under New York state and U.S. federal law. The U.S. military has absolutely no jurisdiction to try a U.S. citizen who is a civilian who committed a crime on U.S. soil. Also, I don’t understand how some people can believe that, in order to defeat terrorism, we need to toss aside the civil rights and liberties that are the very foundations of the society that those same terrorists are trying to attack. We would be doing the terrorists’ job for them if we started cutting away at due process or other civil liberties.

J

May 10th, 2010
10:44 am

We were founded as a nation of laws not men and for good reason why. The law wouldn’t bend, flow, or change to fit the current convenience of men. Terrorism is a crime not an act of war. Terrorist represent no country, military, or government in an official compacity. Treating terrorist as soldiers is no different than declaring war on England because of Blackbeard the pirate. He was a criminal as are all terrorists and terrorist should be tried as criminals in our criminal justice system. If we allow our government to apply military tribunals to terrorists then it won’t be long before the applying them to U.S. citizen’s for “arbitrary” reasons. See Lieberman’s new “Strip American’s of their Citizenship Bill.”

Rational Person

May 10th, 2010
10:58 am

Nelsonhoward, my German teacher used to say that there was nothing lawful about the Nuremberg trials. He thought that we should have just taken those monsters and shot ‘em without pretending it was legal.

Willibekind

May 10th, 2010
11:30 am

What law? You mean the constitution where a teacher told students they could not wear a T-shirt with a picture of the US Flag. Yes, and in a retirement home they can not pray because the home receives government funding. Yes the law! Where liberals read separtion of church and state but do not read free exercise thereof. Is that the law or constitution now? Where muslim islamic terrorists can not be reported as muslims. That law! Or is that a school tells a young girl who draws a picture of the US Flag and the teacher told her that was “obscene”. That constitution. You liberals have defiled in so much no one can recognize it anymore. Hey, but that is the plan for you socialists. How about the conspiracy that a foreign agent plans for months or years to nuke the US. Comes over and gets naturalized citizenship and then sets out to execute the plan. Was he a US citizen? Really? Or is he like some liberals who hide out in republican disguises. Why can we not execute muslin terrorists? We execute American terrorists. Is that the law?

Al Gore

May 10th, 2010
11:44 am

If I or my family were killed by a terrorist action, I would want the perpetrators to be caught by the police and read their miranda rights. I would want them to be housed in the nicest possible holding facility and treated with dignity and respect. They should not be interogated, but fed good food and given good clothes and access to cable TV and the internet. Then given a fair trial and possibly given time off for good behavior.

Monroe Burbank

May 10th, 2010
12:34 pm

Willibekind, you represent most GA conservatives who have no true understanding of, or appreciation for, the constitution. Funny how conservatives and conservatively-aligned movements like this tea bag thing now seem to be draping themselves in the constitution. Honor the constitution, they proclaim. Constitution-honorers know that every card-carrying member of the ACLU is their best friend, because they understand the ACLU’s mission is to defend and preserve the individual rights and liberties guaranteed to all Americans by the constitution. Constitution-honorers will fight to their dying breath to keep prayer out of public schools. They fully understand why a federal judge recently ruled that congress had no authority creating a National Day of Prayer.

To everyone who agrees with what they’ve just read – welcome aboard the constitution-honorers’ express. To everyone else, please stop using constitutional analogies, because you have no idea what you’re talking about and you sound really stupid.

J

May 10th, 2010
12:58 pm

Al Gore
If you and your family were shot and killed by an American citizen that is exactly what would happen. They would be caught(hopefully) and read their miranda rights, and you better hope so because if they are not then there is a good chance any conviction for their crime would be tossed out of court. Following the rules doesn’t protect criminals it insures justice would not be twarted on a technicality and it insures that if you or your family winds up on the wrong end of the law that you are given the same “due process” that is the foundation of Western law since the Enlightenment Period and has its basis in the Magna Carta of 1215 (i.e. 800 years). Following “due process” doesn’t make us soft, it gives us the moral high ground that this person is being treated fairly and judged based on his/her actions/evidence not on thier religious beliefs, color of their skin or nationality. To throw out “due process” not only is unconstitutional(see the 5th, 6th, 7th, 8th, 14th Amendments, and the Geneva Convention) there for unlawful, but it lowers us to the type of unlawful justice that is administered around the world by those people that we are fighting in the first place. America is better than that.

If we are so sure that these people committed acts of terrorism then bring the evidence against them, to a public trial, let the public see it, let the public convict them on it, and let the public sentence them. Military tribunals for terrorist are often “Kangaroo Courts” where evidence for the defense can be supressed and other legal rights can be waved. Simply put if we are so convinced this person committed the crime, then show the world the evidence and convict them, if there isn’t enough evidence then they shouldn’t be convicted. I know I would not want to be convicted of a crime of with little or no proof against me and I feel most Americans would feel the same way.

interested observer

May 10th, 2010
1:18 pm

Many of the comments here bear out Barr’s thesis. The biggest danger to the American government is a public willing to suspend the constitution in the name of security.

Well done Bob.

Gerald West

May 10th, 2010
1:30 pm

Thanks for the expert opinion and excellent post. The readers’ comments indicate that many Americans support liberty and justice for all except anyone they dislike.

Thank God, we’re a republic not a democracy!

Chris Broe

May 10th, 2010
1:31 pm

The constitution is in jeopardy. 60 minutes had a piece about the jihadist websites luring young american gullibles under their spell. They estimated there were hundreds of young citizen time bombs in the United States today, planning on their own hook, and biding their time, waiting for the right time when to strike. The high school massacres like Columbine make this report very believable. Did they ever conclude what motivated the Columbine killers? This new mutation has built-in motivation from the websites, and proves that terrorists don’t need motivation, they just have to want to kill. Is it worth having an internet when it’s only used for porn, chat rooms for morons, (like this one) and terror?

The terror websites have chat rooms in which the Pakistani Taliban and some Al Queda operatives are actually hosting and replying to lone wolf American wannabes who talk about how to kill the most Americans with the least complicated bomb or plot.

Al Queda is crowdsourcing terror this way, and I fear that a workable solution to a catastrophe may become obvious to these sick minds. More than entitlements, more than BP, more than Obama’s nominations, this burgeoning threat could affect America’s future in ways that may make our constitution obsolete. Freedom may not be possible when the citizens themselves can only use it as a tool to kill. It really does only take one guy to make a big difference. Maybe all societies are destined to collapse, but the internet may be accelerating America’s timeline exponentially. A year or two may accomplish the change it used to take centuries to accomplish.

The real danger is the pairing of terrorism-born chaos and the Tea Party type militias that would certainly take advantage. The whole point of the constitution is that the real enemy is always ourselves.

Dan

May 10th, 2010
2:51 pm

No Chris Broe the whole point of the constitution is that the government will become the enemy if left unchecked by ourselves.

J

May 10th, 2010
3:07 pm

Dan
You are absolutely right. The Constitution’s main purpose in the words of the Founders was to “put chains on the government, not the people.” To bad America’s education system today doesn’t teach citizen’s the truth about their rights and what civil knowledge and responsibilities come along with living in a Constitutional Republic. I know because I teach Political Science, American Government, World History, U.S. History, Constitutional Theory, and Current Issues. Some of the political biases in the textbooks are amazing.

ImpeachBobBarr

May 10th, 2010
4:48 pm

We are where we are because Impeachable Bob and his cronies steered the country away from the fight against terrorism in the 1990’s. Remember Bob’s obsession with impeaching the president for having sex and lying about it? What a way to screw up a country for no good reason. Pathetic.

No More Progressives!

May 10th, 2010
5:01 pm

“Remember Bob’s obsession with impeaching the president for having sex and lying about it?”

The President of the United States, Bill Clinton, the Nations Chief law enforcement officer, lied under oath. There’s a huge difference, lost on many to this day.

Should the House have impeached the cretin? Probably not. 40 lashes with a cat-o-nine tails would have sufficed.

Sarcasm 101

May 10th, 2010
6:32 pm

“…it’s obvious that Tea partiers are for the constitution in it’s purist form”

Of course they are. This is why they’re allowed on the steps of Congress, armed with rifles, threatening to overthrow the govt with force if necessary. The tea party are ruly, law abiding citizens who can be trusted.

Rush Limbaugh

May 10th, 2010
6:39 pm

“Or is he like some liberals who hide out in republican disguises.”

You rang?

Appellate Court

May 11th, 2010
6:50 am

“The point of the constitution is that the enemy is always ourselves”.

Brilliant. This is a government of ourselves, by ourselves, and for ourselves.

Checkmate.

Point, game, set, Match.

King Me!

History is stranger than truth

May 11th, 2010
6:55 am

History in Motion: One of Martha Washington’s letters to her cousin Shaniqua mentioned the after dinner games of checkers that George would play with guests. George was a remarkable player and usually won.

One evening, Martha noted, George was on a tear. He kept reaching the opposite end of the board, but he remained silent, expecting the guest to add the extra checker.

“He just can’t utter the words, “King Me”. She wrote wryly.

Ragnar Danneskjöld

May 11th, 2010
7:58 am

Serious question, requires serious thought. Principles:

(1) “Constitutional protections” are not dependent on the presence or absence of an Article III District or Appellate court. Congress may define the jurisdiction of any court other than the Supreme Court. Appropriately chartered military commissions can satisfy our collective desire for preservation of “constitutional protections.” The appropriate charter should also include some appeal process, but there is nothing that would preclude the Congress from limiting such an appeal to the Supreme Court itself.

(2) There is a difference between American citizens – even naturalized citizens – and non-Americans committing crimes on American soil. American citizens ought to be subject to the Constitutional crime-charge of Treason, and non-Americans would not be subject to that charge. As to the “rights of non-Americans,” let us parse the language of the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14th Amendment distinguishes the rights of “citizens” from the rights of “persons.” The Amendment clearly constrains actions by a state against “persons” but does not so limit application of Federal criminal laws. Federal courts have no Constitutional obligation to extend “equal protection of the laws” to “persons.” I think there is judge-made law so-extending those rights of citizens to “persons,” but do not know how broad is the extension. Seemingly Congress can overrule a judge-made law that has no Constitutional- or Treaty-basis.

Not on my watch

May 11th, 2010
9:23 am

Let’s say such a law to strip citizens of their citizenship based on terrorist acts were enacted. Do you truly think they would care? It’s kind of like enacting the death penalty-is it really a deterrent?

Where would such ex-citizens go?