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Ron Radosh

Secondly, aside from the issue of cost raised by Mayor Bloomberg, the trial will become a platform for the defendants to reverse their previous admission of guilt, to claim that they were tortured, and to use the courtroom as a vehicle for an indictment of “American imperialism” and “American War Crimes.”  Sklar comments that hence “the trial may accordingly serve as the public-theater prelude to, and a reinforcing justification of, investigating, indicting…arresting, imprisoning and prosecuting civilian and military officers of the Bush/Cheney administration…deemed responsible for making or implementing war policy.” As we know, there are already cries to do just that for Israeli officials traveling to various countries after publication of the Goldstone Report. Sklar’s conjecture is therefore most plausible.

Sklar continues to argue that the decision for a civilian trial disarms our country and objectively arms our enemies. Ignoring this outcome, he argues, is malfeasance of duty, “a betrayal of the public trust and a violation of the constitutional oath of office.”  He then makes this historical analogy:

The circumstances at present are strongly analogous to those of the Republican Party and pro-Union Democrats versus Andrew Johnson and the resurgent Secessionist/pro-slavery Democrats of 1866-68, the latter seeking to turn their defeat in war into victory via propaganda, demoralizing politics and terror, and constitutional usurpation.

If our course is not changed, Sklar warns, “we shall lie down pleasantly dreaming that the Berlin Wall is gone, state-command totalitarianism defeated in Europe and elsewhere, and the people of Iraq are on the verge of making their country free, and we shall awake to the reality that instead that the Obama regime has made state-command tyranny triumphant in Washington, and has made Illinois a Sharia state, along with all the others.” Paraphrasing Lincoln’s arguments in the House Divided speech of 1858, he quotes Lincoln’s words: “Have we no tendency to the latter condition?”

The larger question Sklar addresses is whether the Guantanamo detainees are to be no longer designated as enemy combatants, although their apprehension and detention were regarded as military captures under the laws of war, not arrests under civilian law. Attorney General Holder has in the past affirmed that the 9/11 attacks for which they are being held as the responsible parties were so regarded by the administration as an act of war. Thus the prisoners must be seen as POWs, not defendants under civilian law.  Yet in March of 2009, President Obama directed that they were to no longer be designated as enemy combatants. But Attorney General Holder’s subsequent testimony before the Senate Judiciary Committee saying that their crimes were acts of war, undercuts the very basis for having them tried as civilians in federal court.

Eric Holder also claimed that he had not discussed the decision with the President before announcing it publicly, and President Obama confirmed his account. Sklar argues that “this could be considered a serious malfeasance on the part of the President, a not minor breach of his oath of office to preserve, protect and defend the Constitution, and a serious deficiency in a Commander-in-Chief, particularly in war time.” Moreover, Holder is an executive officer appointed by and removable at the will of the President, and hence subject to Obama’s authority. Legally, therefore, Sklar argues that if Obama does not countermand Holder’s decision, or remove him from office, the decision for civilian trial is as much his as the President’s.

Sklar proceeds to offer a complex legal analysis that is too lengthy to summarize. Essentially he argues with supporting legal precedents that he cites that the courts could reasonably conclude that the defendants, having been transferred to civilian authorities, were denied habeas corpus process before a civilian judge, which could be found to be an “unreasonable” period that lasted over five years. Moreover, it could also be found that the Attorney General had no constitutional authority to transfer the prisoners from military to civilian jurisdiction, and the transfer could be found not to ever have been valid, unless the President issued an Executive Order that they be transferred.

The arrests, detention and interrogation, and withholding of habeas corpus rights, therefore, could be ruled invalid and even illegal. Again, going back to the Civil War, Sklar writes:

It may be considered that in the case of Merryman (May 1861) President Lincoln ignored Chief Justice Taney’s habeas corpus order, on grounds of martial law, and in his capacity as Commander-in-Chief, Merryman was a U.S. citizen, not an alien, and he was detained by military authority on U.S. soil, not abroad, or on a ‘battlefield.’ Lincoln directed his military officers to ignore the Supreme Court order and to hold the prisoner. He subsequently reported and explained his action to Congress, and requested its affirmation, and post facto Congress affirmed Lincoln in his action, although it might have reprimanded him, or moved to his impeachment. President Obama has indicated no intent to request affirmation by Congress of the prisoner transfer.

The bottom line: As Sklar reasonably argues, Eric Holder can be found to have had no constitutional authority to ever transfer prisoners from military to civilian jurisdiction, or to order the military to hand over the prisoners to civilian authorities. Nor do the military authorities have authority to do so. It would need a Presidential directive to accomplish this. To date it has been said publicly that only Eric Holder made this decision on his own. To allow this decision to stand therefore subjects Holder to impeachment.

Legal scholars, of course, may come up with a different analysis and set of arguments. But I think historian Sklar’s analysis deserves serious consideration. With many in the Senate and House now reconsidering whether the defendants should be tried in civilian court, it may become moot. But if the administration proceeds and the trials are scheduled to be held in civilian court in NYC as now planned, possible impeachment proceedings are there to be considered as another avenue to stop this travesty of real justice.

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