Obama's dual system of justice is bizarre

If you murder 17 U.S. military personnel in a terrorist attack by detonating an unmarked vessel next to an American destroyer on a peaceful visit to a port of call, you are entitled to one system of justice.

George Washington, Abraham Lincoln and Franklin Roosevelt have employed this system. The U.S. Supreme Court has upheld it in multiple rulings. And Congress has reauthorized its use as recently as last month with the Military Commissions Act of 2009.

The long history of military commissions, consistent with the rule of law, preserves the rights of accused enemy combatants. But it does so in a way that recognizes the security requirements of a nation engaged in conflict, particularly against an enemy that flagrantly violates the laws of war.

If you murder 3,000 American civilians in a terrorist attack by flying passenger aircraft into skyscrapers, you are entitled to a different system of justice. That system, oddly enough, is the one constitutionally guaranteed to the citizens you have just slaughtered.

Does that make any sense, giving mass murderers far greater rights — and placing far greater burdens on the prosecution — by allowing them to defend their cases in the criminal court system rather than before a military tribunal? That's the bizarre system of justice created by the Obama administration's legal geniuses.

The president and his attorney general, Eric Holder, have determined that Abd al-Rahim al-Nashiri, the mastermind of the USS Cole bombing, should plead his case before a military tribunal. However, Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, will be tried in a federal courtroom.

Obama and Holder have established a dual system of justice that allows the U.S. government to prosecute some terrorism cases — presumably the slam dunk ones — in civilian court while others go before a military tribunal. That kind of chicanery ought to make civil libertarians apoplectic.

Everyone else would expect that a mass murderer of civilians and key al-Qaida figure wouldn't qualify for the constitutional protections of federal court. Actually, most people wouldn't expect a dual system of justice at all. Military commissions will suffice.

To paraphrase Supreme Court Justice Robert Jackson's observation about the Bill of Rights, the Geneva Conventions are not a suicide pact. They exist to encourage moral behavior in war, as oxymoronic as that concept may seem, and to discourage immoral acts.

Combatants under responsible command, with identifiable uniforms, who carry arms openly and conduct operations in accordance with the laws of war — including a prohibition on intentionally targeting civilians — are entitled to certain protections.

The al-Qaida terrorists behind the USS Cole and 9/11 attacks represent the antithesis of the Geneva Conventions and are not entitled to those protections. They certainly are not entitled to the constitutional protections of American citizens.

Trying some — though not all — terrorists in civilian courts will compromise vital intelligence, as did the trial of Omar Abdel Rahman for the 1993 World Trade Center bombing. It will effectively give terrorists battlefield Miranda rights. It will handcuff U.S. prosecutors in evidentiary proceedings.

Most galling, it will provide al-Qaida fanatics with what they crave most — an international forum to put the United States and, especially, the policies of the Bush administration on trial. Rather than being incidental, perhaps that's exactly what some members of the Obama administration really want.

e-mail: jgurwitz@express-news.net