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Steven G. Calabresi, one of the country's most prominent conservative legal scholars, Tuesday defended the Obama administration's decision to try Sept. 11 terror suspects in New York and took his fellow conservatives to task for their criticism.
His comments, posted in POLITICO's Arena forum departed sharply from the brutal criticism that has come from conservative commentators and lawyers since Attorney General Eric Holder made the announcement about the trials last Friday.
"...The constitutional way to punish the 9/11 terrorists is the same way we would use to punish military interrogators who violated the law against torture. No Article III court or jury - no constitutional power to punish. It is a simple question of the separation of powers - something I had thought conservatives believed in passionately."
"This ought not to be a very controversial proposition," he said.
Calabresi, a professor at Northwestern University Law School, used the hypothetical example of a trial of Bush administration interrogators and lawyers, such as John Yoo. "Suppose some on the left called for John Yoo and all the interrogators at the CIA to be tried before a military commission with no life tenured judge or jury? They were, after all, officers in the war on terror assisting the Commander in Chief on a military mission. Why shouldn't they get a court martial instead of a trial before a life-tenured judge and a jury? The answer is that the Constitution's separation of powers provides that, while Congress makes the law and the president executes it or enforces it, only the life-tenured Article III courts assisted by a jury can impose punishments."
While most of his fellow conservatives have urged the use of military commissions for trials of terrorism suspects, Calabresi said such proceedings should only be used "for the purpose of maintaining military discipline. No one thinks the trials of the 9/11 terrorists have anything to do with military discipline. They have to do with well-deserved punishment. When our government wants and needs to punish, it must go to court to accomplish that."
"Won't jurors be intimidated by the fear of terrorist retaliation and classified information compromised? The risk of juror intimidation is already present in organized crime and drug kingpin trials, and we have learned to deal with it there. As to classified information, the courts must and will take measures to safeguard it.
"Let me be very clear," Calabresi wrote, "I do believe we are at war with the 9/11 terrorists and all those who aid and abet them. I do not think dealing with terrorism is a law enforcement issue only. I do think the Constitution does not allow our military to shoot prisoners it captures without a trial before a real judge and a jury.
"But, didn't Franklin Roosevelt and Abraham Lincoln punish those they were at war with by military commission? Yes, FDR did punish by military commission, and he also interned more than 100,000 Japanese Americans, he packed the Supreme Court, and his Securities and Exchange Commission terrorized Wall Street. It is surprising, to put it mildly, that conservatives say as to military commissions that 'oh well FDR thought they were constitutional so they must be. OK.' I could give you a list of dozens of things off the top of my head that FDR did that were unconstitutional, and trial of captives by military commission is one of them."
