Mark Watson

Third-term Congressman Louie Gohmert (R-Texas), recently introduced an interesting piece of legislation in the House of Representatives.

According to a Gohmert press release, HR 4127 would prevent Khalid Sheikh Mohammed and other terrorists from being tried in a federal court in New York City.

Nice try, Louie.

The bill provides that “alien unprivileged enemy belligerents may only be tried by military commissions if tried for alleged conduct for which a term of incarceration or the death penalty may be sought.”

Gohmert’s bill would amend the Military Commissions Act of 2009 (MCA-09) to require that all foreign terrorists be tried in a military commission rather than a civilian court.

MCA-09 amended MCA 2006, which authorized military commissions for prosecutions of terrorists. These commissions were used from 2006 until January 27, 2009 when President Obama halted all proceedings as one of his first acts in office. (Executive Order No. 13,492).

Clearly the intent by Gohmert is to circumvent U.S. Attorney General Eric Holder’s decision to prosecute KSM in New York’s U.S. Federal District Court for his part in the 9/11 attack.

Gohmert criticized the Obama administration’s decision to treat terrorists as if they are American citizens. “They do not even qualify for treatment as combatants under the Geneva Convention. Khalid Sheikh Mohammed and his co-conspirators do not deserve to be crowned with the rights of an American citizen on American soil,” he said.

Gohmert also indirectly challenged the legitimacy of the Obama Administration’s decision to try KSM in a civilian court. “It is Congress, not the President or Supreme Court, that is given complete authority to establish all courts and their jurisdictions that are inferior to the Supreme Court under Article III, Sections 1 & 2.”

The Texas congressman should have gone further in his denunciation.  The Constitution vests Congress with the exclusive authority to determine what these inferior courts can undertake to adjudicate.

In other words, Congress, and only Congress, can determine whether a U.S. District Court in New York, or anywhere else in the country, has the authority to hear a case involving terrorists.

Gohmert’s legislation would exclusively give military tribunals authority to adjudicate cases involving terrorists while specifically denying federal trial courts, i.e. District Courts, from exercising any involvement in such cases.

Gohmert was joined by 41 Republican co-sponsors, including Peter King (R-New York), Michelle Bachmann (R-Minnesota) and Joe Wilson (R-South Carolina). No member of the Democratic majority has signed on to the legislation.

These lawmakers may be expressing the majority view of Americans, but the proposed change to the laws will probably have no effect on the prosecution of KSM even if it gets past the Democratic majority opposition. To apply the legislation to KSM, it would have to explicitly provide for retroactivity, something it does not do.

The Texas legislator’s proposed legislation also raises the specter of violating the Constitution’s prohibition against bills of attainder and ex post facto laws.

Even though Congress has rarely bothered adhering to Constitutional proscriptions, prohibitions against a bill of attainder and ex post facto laws are consistently upheld by the courts.

Bill of attainder laws single out an individual, or an easily identified group, for punishment. Gohmert’s proposal singles out the easily identified group headed by KSM.

More importantly, any law that changes the punishment of a crime after it was committed is ex post facto and is unconstitutional.

Defense lawyers will have a myriad of legal challenges at every stage of any criminal prosecution of KSM and his collaborators. Unless a civilian federal court is set to ignore constitutional rights vested unto criminal defendants in the past, and hopes appellate courts, including the Supreme Court, are willing to make exceptions for enemy terrorists, no conviction of KSM will withstand appellate scrutiny.

And if a conviction did withstand appellate scrutiny, how confident can American citizens feel about their own constitutional rights being respected in the future?

Make no mistake folks, in any criminal trial conducted in this country, defendants are entitled to invoke their 5th Amendment right against self-incrimination. If KSM is tried in a U.S. civilian courtroom, any statement he made after his capture will be likely be suppressed.

KSM will also likely invoke the 6th Amendment’s prohibition against cruel and unusual punishment during his confinement. Whether waterboarding is torture or not will be irrelevant to a federal judge, as almost any judge would likely perceive such actions as at least cruel and certainly unusual for a pre-trial detainee. Violations of the 6th Amendment have led to many a dismissal of underlying criminal charges.

While Gohmert’s efforts may be lauded by many, he and his 41 co-sponsoring cohorts should instead be asked why have they waited for the horse to escape the barn before closing the door. Surely engaging in a little anticipatory scenario of the future should have enabled them to pre-empt Holder’s implementation of Obama’s decision to try KSM in a civilian trial.

Lest anyone claim that Holder, not Obama, made the decision to try KSM in a civilian court, the Constitution does not vest the authority over the military to anyone other than the Executive Branch.

Simply put, Holder has no constitutional or other authority to determine where KSM or anyone else is prosecuted.

Given that Obama’s campaign promise to close Gitmo has been discussed for nearly two years, how much insight was required to anticipate his administration taking the actions it took in deciding KSM would be tried as a civilian? The first World Trade Center terrorists were tried in a civilian court during President Clinton’s tenure.

Gohmert and his colleagues would be better served anticipating further Obama Administration efforts to undermine this country’s rule of law.