Moderation in Following the Constitution Is No Virtue

Moderation in Following the Constitution Is No Virtue

Ivan Eland

Sen. John McCain (R-Ariz.), the ranking Republican on the Senate Armed Services Committee and a victim of torture in the Vietnam War, is considered a moderate on issues relating to “war on terror” detainees. This time he has paired with a moderate Democrat, Carl Levin, chairman of that same committee, to insert in the 2012 defense authorization bill a provision requiring military detention only for al-Qaeda members who are suspected of planning or perpetrating attacks against the United States. The bill even allows the executive branch wide latitude in determining who fits into this category, provides it a waiver to hold such detainees in civilian custody if it serves the national security, explicitly authorizes the transfer of military prisoners to civilian custody for trial in federal courts, and makes it easier for the president to transfer prisoners from Guantanamo to the United States or foreign countries. In a bout of bipartisanship, the Senate Armed Services Committee approved these measures unanimously.


In these times of heated political rhetoric, such bipartisanship might appear refreshing to the public. Yet almost two and a quarter centuries since the U.S. Constitution and Bill of Rights were written, the two parties often agree to measures that undermine or contravene the original meaning or intent of those documents.
Article III, Section 2 of the Constitution clearly states:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Similarly, the Sixth Amendment to the Constitution requires that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....” Article III, Section 3 of the Constitution even implies that treason against the United States should be tried in a civilian court.
Nowhere in the Constitution or Bill of Rights are exceptions made for national security or crimes committed during wartime (the only exception the Constitution makes is for U.S. troops under courts martial). Besides, even after the 9/11 attacks, no official war was declared.
Thus, Congress could legislate that civilian trials be held at Guantanamo for terrorist crimes not committed in any state, but it could not authorize military tribunals there. Therefore, the kangaroo military tribunals for suspected terrorists at Guantanamo or anywhere else, which do not meet the standards of due legal process of civilian courts required by the Constitution, are unconstitutional—period. Although the precedent of military tribunals held for Germans trying to infiltrate the United States during World War II is sometimes cited, those tribunals were no more constitutional than are the current ones.
The framers of the Constitution did not overlook special national security needs; they simply made the rights of the accused paramount. After all, even those accused of heinous crimes might be innocent. The framers were not merely protecting the rights of criminals or terrorists, but those of every citizen.
But didn’t 9/11 “change everything”? Aren’t such constitutional protections “so yesterday” now that the United States is battling nefarious terrorists who want to kill lots of people? No, believe it or not, the United States has had it worse. In the War of 1812, the U.S. foolishly declared war on the British superpower, was invaded, and had its capital burned (in retaliation for the American burning of what is now Toronto). Yet the United States, despite its recklessness in foreign policy and the consequent perilous enemy invasion, did not trash its civil liberties during this war. We should not do so now, even under the guise of moderation or bipartisanship. As Sen. Barry Goldwater once famously said, “Extremism in defense of liberty is no vice.” Therefore, the unconstitutional military tribunals should be permanently halted, Guantanamo closed, and its prisoners either brought to the U.S. for civilian trials or released if insufficient evidence exists for prosecution.