What is going on with DoJ??

The Department of Justice is floating balloons about backing off using Federal Courts to try terrorists. Apparently, we are going to back off a course of action that was justifiable on legal, ethical, and historical grounds in order to placate the Right Wing. This kind of "Do good to those who hate you" behavior is doing nothing good for the Republic. The people who are being placated certainly don't follow the teachings presented in the Synoptic Gospels, and seem to accept every White House attempt at civility as a sign of weakness.


Being a self-declared nation of "Laws, not Men" has its problems. It demands we follow the law. That is not always popular. People talk about Justice, and mean "doing what I think should be done." But the law has little to do with what I may think is right, or what you may think is right. The law has to do with what is written down. The law, when applied properly, is an objective standard before which all stand as equals. Nothing unique nor original in that idea. I'm drawing freely upon writings from Marshal to Douglas.

Blow up a building without a permit and you're a criminal. There is a dispensation if you are in the uniform of a nation currently at war with the place where you're blowing up the structure, but even that is limited. No uniform, no nation, no declaration of war, no excuses. It's a criminal act.

The only reason for these custom-designed (i. e.: make it up as you go along) military tribunals seems to have as much to do with national ego as national security.  We couldn't just let the police or the international law enforcement community deal with the people who flew aircraft into our buildings. We had to have a response that was as dramatic as the events of 9/11 itself. We had to declare war. On a crime. Nothing too new there. We have declared war on inflation, smoking, poverty, hatred, and drugs. Even the highly intelligent President Carter couldn't refrain from calling energy independence "the moral equivalent of war." And how did all these other wars work out? Funny you should ask. We lost, or we are losing and can't find a way to get out without admitting defeat.

Argument by history is always slippery, and subject to the current interpretation of past events, but Baader-Meinhof, Brigade Rossi, Tim McVeigh, the people who carried out the first attack on the World Trade Canter, even the Provisional IRA and the paramilitary arm of the Ulster Unionists were not brought down by military action. Nobody seriously advocated bombing Germany, Italy, Oklahoma, or Northern Ireland. We did bomb Al Qaida training camps in retaliation for the first WTC and the USS Cole, but we did it outside any pretext that these people were anything other than terrorists (a specific kind of criminal). And it worked.

But even the "bomb the training locations " option was out of the question after 9/11. The perpetrators trained in Florida and Arizona, with planning taking place in Germany, England, and Saudi Arabia. So the Administration brought out two "war we can win" locations, sold them to a nation anxious to punish SOMEBODY, and waited for the Falklands Effect to kick in. Didn't happen. Not going to happen.

The majority of Guantanamo prisoners were released during the Bush II administration. Sent back to their homelands or wherever we could find a host. We had no case, we knew we had no case, and, in some instances, we had let various governments use us to get rid of their troublemakers. So what we have left is a military prison, where only the guards are military, being used to house a population roughly divided into people who should be brought to trial for criminal actions, and people who probably should be brought to trial, but the government had messed up the investigation so badly that there is no way to get a clean conviction.

Exactly none of the above justifies treating criminals as if they were military. So why is the Administration apparently looking for a way to walk the whole "criminal trial for a criminal" thing back? Politics. The echo chamber that it the Conservative Party has managed to scare the population enough that even people with three digits in their I.Q. are buying into the idea that these people are just too dangerous to deal with anywhere but Guantanamo. Possibly because of the lightning bolts they can shoot from their fingertips. Or because a flotilla of silent helicopters would drop ninja frogmen into the courtroom.Makes no sense, but neither did the "Death Panel" idiocy that substituted for discourse when the Insurance Industry was ensuring that we kept our health care system at the "pay the most, get the least" level.

At one time, we were a nation of laws. These days, the law seems to take second place to public opinion. Fortunately, that is a recent  phenomenon. It doesn't take a Constitutional Law scholar to list the major legislation that would never have made it if we had given a vocal minority the final vote.