Guantanamo prison and politics | News, Sports, Jobs

JUDGE ANDREW NAPOLITANO

It is always a threat to human freedom and the rule of law when politics interferes in law enforcement. But today's America is full of tasteless examples of this.

The recent revelations about the political machinations of the Chief Justice of the United States in the presidential immunity case are just one sad example of the nation's highest judge determined to change the law, even if it means giving up good jurisprudence. And this from a jurist who once promised the Senate that he saw himself as a simple baseball umpire, calling balls and strikes. Now he is a historical revisionist, ruling that the Founding Fathers actually wanted an imperial presidency.

His reasoning was his understanding of history – not of law, not of precedent, not of the Constitution, not of morality; a first in the modern history of the Supreme Court.

But this clumsy behavior—which he also displayed when he changed his mind at the last minute and saved Obamacare from constitutional repeal because he was convinced that Mitt Romney would defeat Barack Obama in 2012—sends a message to those who enforce the law and those who interpret it that due process can take a back seat to politics.

This comes as part of the prosecution of Khalid Shaikh Mohammed at the U.S. naval base in Guantanamo Bay, Cuba. Here's the backstory.

After the dust settled from the 9/11 attacks and the federal government responded with attacks on the Bill of Rights at home and innocent Afghan farmers abroad, it declared Osama bin Laden the mastermind of the attacks. It never charged bin Laden with a crime, but it sent a hit team to assassinate him in his home, which they did. Then the government decided that bin Laden was not the mastermind, but Mohammed.

By the time bin Laden died, Mohammed had been captured and suffered years of torture at the hands of the CIA. He was held in the Guantanamo Bay detention camp. He was eventually charged with conspiracy to commit mass murder and handed over to a military tribunal set up by Congress at the urging of the George W. Bush administration, because it was believed that military personnel would dispense swift and harsh justice in a military court.

Then his lawyers successfully argued before the Supreme Court that conspiracy was not a war crime and therefore could not be tried in a military court. In doing so, the court overturned an appellate decision that the Chief Justice of the Supreme Court had written while he was still an appellate judge – another Supreme Court first.

Congress then changed the structure of the tribunals to conform to the federal Code of Criminal Procedure, turning them into de facto federal courts in Cuba with military trappings.

Pre-trial proceedings in Mohammed's case have been ongoing since 2012. He is on his second defense team, as the first team was infiltrated by an undercover FBI agent and his lawyers resigned. Mohammed is being tried by his fourth judge. The first judge ruled that his confession could not be used in the trial because it was obtained under and as a result of torture. But prosecutors persuaded judges two, three and four to reconsider the first judge's ruling on the legality of the confession.

A second team of prosecutors then took over the case and told the fourth judge that if he allowed Mohammed's confession to go to trial, Mohammed and his doctors would testify about the psychological effects of torture and that they could not ethically defend the CIA's actions. They also told the judge that they had begun negotiations with the defense for a guilty plea.

Two months ago, the defendants, the government and the judge reached a plea agreement, and all relevant people signed it, including the Pentagon official overseeing all the prosecutions, a retired Army general whose most recent active military career was as chief judge of the military appeals court. The agreement spared government lawyers from having to defend Bush's torturers and spared the defendants from the death penalty.

Then, after the agreement became public knowledge, the Secretary of Defense — who is not a lawyer — belatedly overruled the orders of the retired general who oversaw the case, the legal team that prosecuted the case, and the judge and ordered the agreement to be quashed because he believed the American public should know the evidence in the case. In other words, the last thing the Biden administration needs in the middle of a presidential campaign is to appear less than aggressive in its pursuit of justice for 9/11.

So this is the legal dilemma facing the current judge – an active Army colonel. All parties and the court have agreed to a settlement. But the judge's boss – the Secretary of Defense – has instructed him to reject that settlement. This is a state of affairs unknown and unheard of in American jurisprudence, where judges have no bosses to tell them which guilty pleas to accept and which to reject. This is only possible because of Bush's lust for torture and Congress's post-9/11 aversion to the Constitution, as well as the now-fashionable interference of politics in the case.

Guantanamo costs half a billion dollars a year. In its more than 20 years of operation, no one has ever been tried for 9/11. And prosecutors familiar with the case have told their superiors at the Defense Department that taking the case to trial would expose American troops to cruel retribution because the trial would expose the heinous acts the CIA committed against the defendants.

Under federal law, once a guilty plea has been entered and accepted, a retrial is not possible. But we have a government whose politicians hardly consider loyalty to the law and the Constitution a secondary concern.

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