I wonder why U.S. Sen. Lindsey Graham so adamantly opposes the trial of Khalid Sheikh Mohammad, one of the chief architects of the 9/11 attacks, in a civilian court on the soil of the United States. He seems to have a lot of confidence in military tribunals and in trials taking place outside of the boundaries of the United States, but not much faith in the U.S. Constitution. I am no lawyer (Sen. Graham is), but I can read, and a few lines from our nation's birth certificate, the Declaration of Independence, and our blueprint for democracy, the Constitution, provide useful context.
Among the reasons we asserted our independence in 1776 were King George III's attempt to render the military independent of and superior to the civil power, and the fact that Americans were being tried abroad - both complaints registered by Thomas Jefferson in the Declaration of Independence. Even though this document doesn't carry the force of law, our Constitution certainly does. There are other reasons for trying Mohammad in a civilian court in New York, the chief of which is that holding a tribunal trial at this time and holding this particular trial anywhere other than in the state of New York are both unconstitutional.
Amendments V and VI to the Constitution are very clear on this. Amendment V states that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger. In Ex Parte Quirin, 1942, the U.S. Supreme Court upheld the right to try German saboteurs by military tribunals only because Congress had declared war on Germany.
The Congress has not officially declared the existence of a state of war with any country since World War II. One reason has to do with resulting legal entanglements. Chief among these are that military tribunals do not conduct trials by juries giving unanimous consent, and military tribunals can suspend habeas corpus, the latter justified under the Military Commission Act of 2006. Lastly, and more specifically, Amendment VI requires that the accused be tried in the state in which the crime was committed.
Whatever the crime, our legal system under the Constitution can stand on its own merits.
When criticized for defending the anarchists involved in the Haymarket Riot in 1886, John Randolph Tucker, a collateral descendent of Thomas Jefferson and president of the American Bar Association, stated that he was not defending the anarchists but the Constitution of the United States. I believe this is what the Obama administration is doing in the case of Mohammad. Our president put it best in his Nobel Peace Prize acceptance speech when he stated, "We lose ourselves when we compromise the very ideals that we fight to defend."
Adjunct Lecturer in History
University of South Carolina, Aiken