
Through all the coverage and debate surrounding Attorney General Eric Holder's decision to try five 9/11 jihadists in New York City, one implication has received little attention: With this momentous decision he has cheapened the value of U.S. citizenship.
To fully comprehend this, it helps to go back to a crucial turning point in the development of what we call Anglo-Saxon jurisprudence – the 1215 signing, by England's King John, of the Magna Carta. This document, forced upon the king at the point of a multitude of combat lances, spelled out a number of fundamental rights to be enjoyed by the barons of the realm.
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Among them were some of the rights at issue in our own emotional debates about how to deal with those who make war against U.S. citizens on American soil. The right to a speedy trial was one. The right to be protected against arbitrary executive power was another. One famous sentence that comes down to our own day declares: "No freeman shall be taken or imprisoned or disseised [dispossessed] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.''
This was huge, notwithstanding the fact that it applied only to the nobility and that John quickly trampled on the rights spelled out in the document as soon as he calculated he had sufficient power to do so. Ultimately, the language of the Magna Carta was placed before every king, and every king felt obliged to sign it. And just as the barons were protected from arbitrary power of the king, ordinary citizens ultimately received protections against similar arbitrary actions by the barons.
But consider the formal greeting, initially in Latin, that began the document as it became increasingly embedded in Anglo-Saxon life: "John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings.'' To all his liege subjects. The document – along with the rights it contained – was directed to subjects of the realm. The rights enumerated were rights of citizenship.
Of course through the centuries it naturally became customary to apply these rights, and the procedures that emanated from them, to others living among the citizens of the realm. This was seen as necessary to ensure harmony within the polity and among those living there.
But now we have the attorney general, motivated apparently by some vague ethos of international brotherhood, applying these rights to men suspected of stealthy entry upon our soil with the aim of killing innocent Americans by the thousands as they went about their daily business.
There is no precedent for this. When
eight German saboteurs stole into the United States during World War II, they were tried before a military tribunal and executed within a couple months. Nobody argued that they deserved all the courtesies and protections of Anglo-Saxon jurisprudence, not to mention the protections normally accorded combat prisoners of war. They had not waged war according to international law, and hence those courtesies and protections didn't apply.
Nor did the Supreme Court's famous
Hamdan decision suggest any requirement to try illegal "enemy combatants'' in civilian courts. It was in response to that decision that Congress, in a noteworthy display of bipartisan cooperation, created the 2006 Military Commissions Act to establish appropriate procedures for dealing with jihadist defendants in military tribunals.
Holder has reversed all that. Leave aside for the moment the legal spectacle that almost inevitably will emerge as the system brings to its bosom defendants who despise that very system. Leave aside the prospects for jihadist violence against New Yorkers during the trial. Leave aside the legal wrangling and maneuvering that can be unseemly enough when U.S. citizens and visitors are in the dock but that will strike many Americans as disgusting when the defendants are accused of waging stealthy war against them. And leave aside the prospect that these defendants might actually elude conviction through that maneuvering, through a hung jury, or even through acquittal.
Even before any of that is considered, consider the value of our citizenship when the hallowed protections of citizenship are applied to people who wish to destroy our most cherished institutions and traditions. Our liberties are often described as God-given. Perhaps so. But they were secured by mortals, fighting and bleeding and sometimes dying in the long Western struggle against arbitrary executive power. It's doubtful that those who fought and bled and died through the centuries did so with the conviction that their sacrifice was in behalf of men from another culture bent on destroying the culture of their forebears and their descendants.
Robert W. Merry, former Washington correspondent for The Wall Street Journal and CEO of Congressional Quarterly Inc., is the author of three books on American history and foreign policy, including the current "A Country of Vast Designs: James K. Polk, the Mexican War, and the Conquest of the American Continent" (Simon & Schuster).
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