Justice Denied

If justice delayed is justice denied, what of the wait to try and sentence the accused plotters of the September 11 terrorist attacks? The judge in the case is now looking into whether there was “unlawful influence,” as the Times puts it, behind Secretary Austin’s move to pull the plea deals that spared the plotters the death penalty. It’s the latest example of the procedural pettifoggery surrounding the case, which warranted swift disposal. Contrast the nearly 23-year delay in resolving the legal cases against Khalid Sheikh Muhammed and two accomplices with the speedy action taken during World War II against eight Nazi saboteurs who washed up at Long Island and Florida in June 1942. The group was rounded up by June 27. By August 4 they had been tried by a military commission, and by August 8 six of the men were executed. The other two received lengthy prison sentences.The Nazi saboteurs were set on damaging our war industry, but hadn’t managed to light so much as a fuse before they got nabbed. Mr. Muhammed and his fellow plotters, meanwhile, have been cooling their heels in federal cells for more than two decades while the finest legal minds in America dither over the niceties of Constitutional due process. That doesn’t apply to foreign belligerents — those who make war against America. The result has been a legal saga on a par with the decades-long dispute, chronicled by Dickens in “Bleak House,” of Jarndyce v. Jarndyce, which has become a byword for futility. The judge in the 9/11 case, Colonel Matthew McCall, appears not to have read the book. “I’m not going to rush,” he averred at Guantanamo Bay of the questions over Mr. Austin’s intervention. “Everybody must follow the rules, including the secretary of defense,” he said.Judge McCall seems to be taking a page here from the American Civil Liberties Union, which denounced Mr. Austin’s “rash act” of putting the death penalty back on the table for Mr. Muhammed et al. The ACLU insists that “politics and command influence should play no role in this legal proceeding.” Insofar as politics has been injected into this dispute, though, it’s a result of giving the accused plotters due process rights that belligerents don’t deserve.That followed the Supreme Court decision in Hamdan v. Rumsfeld. That case in 2006 allowed 9/11 plotters to be tried in military commissions, but added extra protections for defendants. The court, by five to three, found that the “law of war” requires that “the same procedural safeguards afforded in U.S. courts-martial” must “be afforded to enemy combatants,” an ex-military lawyer, Scott Silliman explained. The Sun dissented.That ruling disrupted the plans hatched by President George W. Bush to try the 9/11 plotters in an expeditious manner. Extending judicial type due process to such enemies opened the door to the endless motions, delays, and disruptions that have dragged out the proceedings. No wonder prosecutors were tempted to try the easy way out, offering Mr. Muhammed and his co-conspirators a sweetheart deal of life in prison.Now Judge McCall says he needs to take yet more time to determine whether America is “bound by the agreement,” inked on July 31, that would spare the lives of the 9/11 defendants. That deal sidesteps both the pursuit of truth that a trial would determine — and the justice that a death penalty would achieve. Judge McCall might want to read The Great Scalia’s dissent in Hamdan. Scalia warned that it would “keep the courts busy for years to come.”The colonel might also want to read the case of Ex Parte Quirin, where the Supreme Court okayed the military trial of the Nazi saboteurs, by distinguishing between “lawful and unlawful combatants.” The latter were not entitled to the constitutional protections of civilians or real soldiers. FDR was wiser about war and less prone to judicial hand-wringing than our current generation. He was made of sterner, more victorious stuff.

Justice Denied

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