It is always dangerous to human freedom and due process when politics interferes with criminal prosecutions. Yet, present-day America is replete with tawdry examples of this.
The recent exposures of the political machinations of the Chief Justice of the United States in the presidential immunity case is just one sad example of the highest judge in the land determined to change the law, even at the cost of sacrificing good jurisprudence; and this from a jurist who once promised the Senate that he envisioned himself as a mere baseball umpire – just calling balls and strikes. Now, he is a historical revisionist, ruling that the Framers actually wanted an imperial presidency.
His rationale was his understanding of history – not the laws, not precedent, not the Constitution, not morality; a first in modern Supreme Court history.
But this awkward behavior, in which he also engaged when he changed his mind at the last minute and saved Obamacare from constitutional extinction because he was convinced that Mitt Romney would defeat Barack Obama in 2012, sends messages to those who enforce the law and those who interpret it that due process can take a back seat to politics.
That is happening at the prosecution of Khalid Shaikh Mohammed at the U.S. Naval Base in Guantanamo Bay, Cuba. Here is the backstory.
After the dust settled from the attacks on 9/11 and the federal government responded by assaulting the Bill of Rights at home and innocent Afghani peasants abroad, it declared that the mastermind of the attacks was Osama bin Laden. It never charged bin Laden with any crime, but it dispatched a team of killers to assassinate him in his home, which they did. Then the feds decided that bin Laden was not the mastermind; Mohammed was.
By the time of bin Laden’s death, Mohammed had been captured and had undergone years of torture at the hands of the CIA, and he was incarcerated at the prison camp at Gitmo. He was eventually charged with conspiracy to commit mass murder and was put into the hands of a military tribunal, which Congress had established at the insistence of the George W. Bush administration believing that military men on a military court would administer swift and rough justice.
Then, his lawyers argued successfully to the Supreme Court that conspiracy is not a war crime and thus not triable before a military tribunal. In so ruling, the Court overruled an appellate court decision written by the Supreme Court’s Chief Justice back when he was an appellate judge – another Supreme Court first.
Then Congress changed the format of the tribunals so that they’d follow the Federal Rules of Criminal Procedure and effectively turned them into federal courts in Cuba with military trappings.
Hellbound and Down 