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Why Would Obama Take Such a Risk with KSM?

I was involved with a similar fiasco with Ayaan Hirsi Ali in Holland. Why would Obama risk a constitutional crisis?

by
Leon de Winter

Bio

November 20, 2009 - 12:28 am

Some years ago, when the legal position of Dutch MP Ayaan Hirsi Ali was a matter of national discussion in Holland (she had lied about her refugee status when she entered Holland fleeing an arranged marriage, a fact she had talked about many times in interviews), Minister of Immigration and Integration Rita Verdonk, herself a member of Ayaan’s political party, insisted on pushing this issue to the very edge. Vehemently, Ms. Verdonk stuck to the facts, and formally she was right.

Yes, Ayaan had lied when she had fled to Holland, as many people knew inside and outside parliament, and formally Ms. Verdonk had the power to cancel Ayaan’s passport and declare her an illegal alien. The problem: What would this mean for the current session of parliament? Instead of 150 members, the Dutch parliament would have had only 149 members, a clear violation of the Dutch constitution.

Together with my dear friend Afshin Ellian, a law professor at Leiden University, I wrote an op-ed piece for De Volkskrant, the Dutch New York Times (only better — Holland has a population of 16 million, and the paper has a daily print run of over 300,000 copies). We wrote that Ms. Verdonk was right, but the consequences of her rightness could be devastating. It would mean a constitutional crisis unlike any we had ever seen in Holland. Everything that was debated in parliament would need to be annulled and the laws canceled, since parliament had never formally started with full membership as the constitution dictates. And Ayaan would have to be arrested and sentenced, since she had been acting as an MP without being a Dutch citizen.

Immediately, the presidium of parliament answered — the chairmen declared that Afshin and I overreacted. They stated it didn’t matter if Ayaan was Dutch or Somali, this was no problem for the functioning of parliament. Of course, Afshin and I asked these politicians if parliament could also function with 148 members, or with 140, or 100 — where was the bottom line? The politicians tried to avoid this question, and after some weeks the status quo was protected. In order to avoid constitutional chaos, regardless of the facts, Ayaan was declared a Dutch citizen and Rita Verdonk had to step down — although she had been right about Ayaan’s original legal status.

I am not an expert in legal matters, but I have some questions about the criminal court case against the five terrorists who will be brought to New York City. There must be readers who have the expertise to help me, a simple Dutch expatriate in California observing the political and legal circus surrounding the present administration.

Concerning the purity and transparency of the American justice system, I imagine it doesn’t make any difference if a suspect has killed one or two or a hundred people. The system has its own rules, equal to every suspect and blind to the identity of the suspect or his acts. The autonomy of the system is the essential difference between a legal system in a transparent democracy with separation of powers and the legal system in a tyranny.

So I imagine it doesn’t make any difference for the civilian legal system if John Doe is suspected of a single cruel murder or Khalid Sheikh Mohammed is suspected of organizing the murder of thousands of people. If this is true — and it must be true — I imagine what would have happened if John Doe had been held six years at a military detention camp without the normal rights given to him by the system, had been waterboarded 183 times (a form of torture, according to the president), and accordingly confessed without having had the chance to use his Miranda rights, which never had been read to him.

In order to protect the purity and autonomy of the American legal system, shouldn’t this case against the suspected terrorists be tossed out by the judge? If I were to be the judge at the criminal case against KSM, I would not have another choice, I imagine.

I would have no choice but to toss out this case since the rights of the suspects have been seriously, chronically, and fundamentally violated by the U.S. government. If the road to a civilian court is taken by President Obama (Attorney General Eric Holder is only the messenger), he is taking the same risks as Ms. Verdonk. Formally, the president has the legitimacy to bring KSM to a civilian court, but at the same time he is shooting his own foot — only by compromising the system can KSM be sentenced. In a civilian court, I imagine, the denial of the essential and fundamental rights of the suspect — innocent until proven guilty, a speedy trial, access to a lawyer, the right to remain silent, the right not to be tortured — can only lead to dismissal.

And if a simple visitor from Holland can figure this out, the attorney general and the president can figure this out too.

Which brings me to another question: If they know what I know, why did they do it? Is it really only to demonize Bush — the prosecution has to share all kinds of sensitive information with the suspects — and to project the misery of the present economic situation and the dangerous stagnation in Afghanistan on the previous administration?

In the congressional hearing, Holder pretended that he was explaining the decision to bring KSM to New York, but he simply stated that it was the right thing to do after all kinds of deliberations. Holder wasn’t able to come up with just a single argument. Rita Verdonk was fighting for the leadership position of her party, and she had thought isolating Ayaan would strengthen her chances. Why is President Obama risking legal disaster? To pay tribute to his extreme left-wing followers? To impress the rest of the world (most non-Americans think the American judicial system is a joke, and the upcoming KSM show is only making it worse)? Is he trying to create chaos? Why?

There must be smart readers who can help me out — I am flabbergasted by all of this.

Leon de Winter is a novelist and columnist for Elsevier Magazine in the Netherlands. His last novel, The Right of Return is a thriller set in Tel Aviv in 2024. He presently lives in Los Angeles.
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