by Paul Greenberg

April 18, 2011

"For if the trumpet give an uncertain sound, who shall prepare himself to the battle?"

-- First Corinthians, 14:8

It has taken time. Agonizing, unnecessary, indecisive years of it. But at last the attorney general of the United States may have begun to yield to reality. Unwillingly, begrudgingly, regretfully, even bitterly, but yield nevertheless.

Almost 10 years after the dastardly attack on the Twin Towers in New York, and after two years of aimless dawdling and dithering and general dilly-dallying, The Hon. Eric H. Holder Jr. has discovered a body of law specifically designed to deal with enemy combatants, lawful and otherwise.

It's a long-established legal system that should have been used from the first in these cases: the Uniform Code of Military Justice.

Eureka! How about that?

The previous administration tried to uphold, apply and respect that code. Despite being sorely abused by the Eric Holders and Barack Obamas for its earnest efforts. But that was when these gentlemen were still in campaign mode, seeking executive power rather than having to exercise it in defense of the country. Now both begin to see the light, if terribly late and through the glass of politics darkly.

Messrs. Holder and Obama have had to wipe the sleep from their naive eyes, however unwillingly, and agree that the best place to try the chief perpetrators of that illegal, immoral and utterly conscienceless act of war against the United States of America on Sept. 11, 2001, is before a military commission.

What's more, that military tribunal that would be convened at Guantanamo -- the secure military prison both vowed to shut down when they were flying so high they couldn't see what the nation's security demanded of them. And still demands: justice at last.

It has taken time. Valuable time. The nation's time. Time that might have been better used to pursue justice, not delay it. The attorney general of the United States may still not realize that he has only himself to blame for this delay. Instead we're supposed to blame just about everybody else:

-- Congress is at fault for not going along with General Holder's ill-conceived plan to try these killers in Manhattan. (Lest we forget, it was the Democratic senator from New York who led the charge to spare New York City the grief, gridlock and expense of such a trial.)

-- Mayor Michael Bloomberg of New York City, the wannabe presidential candidate who's a Democrat in everything but name, must take his share of the blame: He had second thoughts about turning Lower Manhattan into a reasonable facsimile of the Green Zone in Baghdad in order to try these defendants.

-- American public opinion in general reacted vehemently to the kind of trial and spectacle General Holder was planning to stage in New York. And which, at one unfortunate point, he said was going to be "the defining event of my time as attorney general."

Alas, he was more right than he knew. This latest fiasco on his watch may indeed define Eric Holder's dubious service as head of a federal agency that, thanks to his leadership, could be renamed the U.S. Department of Justice Delayed.

Even now the attorney general has had to be dragged kicking and whining to where he should have been along -- cooperating with these military commissions rather than assailing them. If he could, he says, he would have stuck to his plan to try the masterminds behind September 11th before a civil court in Lower Manhattan, or maybe somewhere in Illinois, or who knows where -- any place but the secure locale specifically designed to hold unlawful combatants.

That's right: Even after all General Holder should have learned on the job, he would still treat these defendants as if they were ordinary criminals -- carjackers or armed robbers instead of mass murderers for an unholy cause. Murderers who not only have confessed but proudly confessed, and would have been only too happy to use a federal courtroom as a stage on which to strut.

But the attorney general of the United States still disdains the system of laws specifically designed to deal with such threats, and the military commissions duly established to carry out those laws. The origins of U.S. military commissions predate the U.S. Constitution itself, for they were first put in place by General Washington when he was still commanding general of the Continental Army.

But our current attorney general would jettison all that historical precedent in the case of Khalid Sheikh Mohammed and assorted accomplices. If only the American people and their elected representatives would let him. What an inconvenience democracy can be to our advanced thinkers.

There was a time when the United States, finding itself at war, acted like it. There was a time when the United States had a president named Franklin D. Roosevelt who, when confronted with the case of eight German saboteurs apprehended on these shores, knew what to do. They were tried before a military tribunal and most of them -- six of the eight -- executed within weeks. With the unanimous blessing of the Supreme Court of the United States. (The two enemy agents who cooperated with the authorities were spared, and sentenced to prison terms.)

Justice was swift and certain under presidential Proclamation No. 2561, titled "Denying Certain Enemies Access to the Courts of the United States," which declared at the outset that enemies of the United States who commit such crimes "should be promptly tried in accordance with the law of war." They were.

But that was then. What about now?

The American people are now led by a president and commander-in-chief of their armed forces who declines to recognize the world war now being waged on this country, the West and freedom everywhere. No, he is directing only Overseas Contingency Operations, or maybe, to quote the presidential press secretary on Libya, a "time-limited, scope-limited military action." Either way, it's clear his attorney general would much prefer to stick to civilian life. Who wouldn't? But our enemies have different ideas, as symbolized by that still unrestored site in Lower Manhattan a decade after our own generation's Pearl Harbor.

It's happened before, the Decline of the West. It happens with sad regularity because we forget. We forget the forces out there who begrudge us our very existence, to whom the United States of America is a standing provocation. But when we forget, we can count on our enemies to remind us -- all too terribly. And we rise again. For we shall. Have faith. Stay strong. Let us strengthen one another.

 

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