Earlier this week, as sadly foretold here, Judge Lewis Kaplan suppressed the testimony of a key witness in the prosecution of Ahmed Ghailani for the 1998 bombings of American embassies in East Africa. Ghailani, a terrorist war criminal responsible for killing more than 200 people, is known as the “defendant” in Manhattan federal court, where the Obama administration has insisted on trying him. Judge Kaplan’s ruling, which effectively bars the government from proving that Ghailani purchased the TNT used to bomb the embassy in Tanzania, may well destroy the government’s case — the Justice Department having already foreclosed itself from informing the jury that Ghailani has confessed to his role in the bombings and other al-Qaeda activities.
The episode calls to mind other chapters in the decades-long quest to meld due process and depravity. Nuremburg, for example: Winston Churchill wanted no part of it. He thought Adolf Hitler and the rest of the Nazi hierarchy ought to face summary execution — that they should be “bumped off,” as he once put it, if you want to get technical.
Today’s hard Left shrieks at the thought. It is an Alinskyite shriek, the contrived kind. As part of the “political jujitsu” by which radicals would undo the West from within, Saul Alinksy shrewdly preached that the establishment — the “haves” — must “be constantly pushed to live up to their own book of morality and regulations.” Since in reality the radicals would be the ones writing this metaphorical book, Alinsky knew the establishment could never meet its inflated standards.
In the radical rendering, our morality and regulations — or, as Barack Obama and Eric Holder like to call them, our “values” — are pristine abstractions, rhetorically walled off from reality. That is why the president and his attorney general claim, so indignantly yet so absurdly, that a commonsense truism — namely, that we have to balance the inevitable tension between liberty and security — is a “false choice.” With the help of their media accomplices, leftists erect an Archimedean fortress where “values” are perfectly inviolable and live in perfect harmony.
Here on Planet Earth, our values — actually, our principles — are not Platonic forms. They are ideals born of gritty human experience. In real life, principles collide. We want sober deliberation and decisive action, justice and mercy, personal responsibility and a social safety net, hassle-free travel and terror-free aircraft. Something always has to give.
Moreover, as if the tradeoffs were not tricky enough, the something that gives is not always the same. It is situational. Sometimes, your safety is so well assured that you can afford to endow your enemies with significant legal protections. Other times, you are under siege, and the circumstances dictate a drone missile or, at the very least, a drum-head court-martial. There can be no fixed rules for this sort of dynamic. Rules are frozen in the time of their crafting. In balancing liberty and security, it is more important to have the right people and the right accountability.
For leftists, the right people must be judges. Somehow, by virtue of their Juris Doctor degrees and patronage appointments, judges personify the Archimedean point. Insulated from politics, they are accountable only to “the law” — which is the Olympus in our “values” hierarchy (unless, of course, the robed Archimedeans decide the law gives corporations free-speech rights . . . in which case they are apt to get a public dressing down from the jujitsuka-in-chief).
In a free society, though, having the right people and making them accountable means something very different. It entails having policymakers who are faithful to our principles and apply those principles sensibly in light of the moment’s exigencies. It makes those policymakers answerable to the rest of us, whose lives hang in the balance. Our approval or disapproval — expressed at the ballot box and in the court of public opinion — is what gives the decisions legitimacy or dictates that they be changed.
Only in the Left’s morality play are all judgments easy. Only there are all who make those judgments either heroes or villains based solely on which side they take. For the rest of us, this is tough stuff. The principles of a life that is lived rather than imagined are not abstractions. In the flesh-and-blood world, where we cherish our liberty but recognize its dependence on our security, it is not a simple matter to diagnose how vulnerable we are to depraved actors. Finding the right balance is very difficult, the work of trial — or no trial — and error.
Churchill’s preference for no trial was not, as Alinsky would have framed it, the hypocrisy of an establishment icon who could not conform to the letter of his professed values. Quite the contrary: Churchill was evincing a devotion to the Western concept of a trial. His was “the ultimate principle,” as Justice Robert Jackson later stated it with eloquence: “Put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.” If the outcome is already determined, Jackson reasoned, “there is no occasion for a trial.” Such an exercise would be sheer theater, unworthy of respect from those who hold real trials in esteem.
Those words ought to strike us like a thunderbolt. After ripping the heart out of the government’s case against Ghailani, Judge Kaplan concluded his brief opinion with this gem: The defendant’s “status as an ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.” Translation: Ghailani will be in jail whether or not we have the trial, and regardless of the outcome. The trial is an occasion for preening, not justice. It’s about making us feel better about ourselves, not about Ghailani, whose fate is sealed. Churchill didn’t want the nirvana of Nuremburg because he could not abide the idea of turning a trial into a farce. We want the farce because we cannot abide the idea of abandoning the nirvana of civilian trials. But far from nirvana, civilian trials in this context are a fetish.
Obviously, President Obama knows this. Guantanamo Bay is still open for business. At Bagram Air Base in Afghanistan, government officials detain and interrogate terrorists outside the prying eyes of the federal courts. In Pakistan, we kill terrorists without warrant or warning. The president has authorized all of these measures and more. On the campaign trail, “due process” can be a useful cudgel — an Alinskyite “book” that the powers that be cannot live up to. But once the campaigning radical becomes the accountable president, it turns out that due process really is just the process that is due, the middle ground a policymaker strikes when he is forced to make choices — not false choices — between competing values.
President Obama is not the first person ever to be wrong in making these excruciating choices. I started out in 1993 believing, just as Attorney General Holder says he believes, that bringing foreign terrorists into our civilian courts and swaddling them in the majesty of the Bill of Rights was imperative if we were to keep faith with our values. I believed it because I wanted to believe it, and because I hadn’t been forced to confront the ramifications of applying it. Reality proved me wrong. In the event, we were betraying our higher obligation to protect the American people. And if we bent the rules to honor our higher obligation, the trial would no longer be a trial worthy of the name.
It is all so unnecessary. Military commissions are not kangaroo courts. The administration has affirmed this, however reluctantly, by endorsing them. If they are too politically freighted for Obama to direct them for the likes of Ghailani, there is no reason we can’t design a new system for national-security cases — one that ensures fairness and trustworthy results without arming the enemies of humanity with a lawfare arsenal. All it takes is the courage to admit error and the will to correct it. That may be too much for those in the Alinsky thrall, but it would be a worthy task for a new Congress.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.