A Supremely Sullied System

© St. Louis Post-Dispatch
Tad Armstrong

We cannot assume a death sentence for Khalid Sheikh Mohammed, even if he is found guilty.

The dust of pure evil had not yet settled on the remains of the Twin Towers and its victims when President George W. Bush declared we would take Osama bin Laden “dead or alive.” General Patton would not likely have been as conciliatory. Bush was crucified by the politically-correct crowd for his cowboy rhetoric, but at least he was speaking to the reality of war on the battlefield, not to post-capture remedies.

Fast forward. The only honorable motivation for trying Khalid Sheikh Mohammed in our civilian courts, although otherwise misguided, would be to showcase our fair and impartial system of due process and, indeed, that has been this administration’s stated intent.

Yet, last November, Attorney General Eric Holder promised Congress that failure to convict KSM “is not an option” and President Obama predicted that criticism would die down after KSM is “convicted” and “the death penalty is applied.”

Apparently, no one got the message that the top man in the Justice Department and the leader of the free world got their lethal-injection-horses before their presumption-of-innocence carts. More recently, Vice-President Biden promised a conviction. White House spokesman Robert Gibbs was unequivocal in an interview with CNN: “KSM is going to meet justice and he’s going to meet his maker…He is likely to be executed for the heinous crimes that he committed in…masterminding the killing of 3,000 Americans.”

Suppose Russia or China were holding an American citizen for trial. Imagine how we Americans would react to an early-morning promise of impartial justice made by President Medvedev or President Hu Jintao followed by an early-afternoon guarantee of conviction and execution before one witness testified?

Moreover, please note that “if” there is a conviction, the administration should not be so quick to predict execution, for while we weren’t looking, the liberal faction of the Supreme Court has been killing the Eighth Amendment.

The job of the judicial branch is to interpret the law, not to make it. If we still profess to be “a government of laws and not of men,” honoring the constraints of what we still call “the highest law of the land” is mandatory.

The provisions of Article V of the Constitution provide the only valid method for amendment.

It, in part, requires two-thirds of the Senate, two-thirds of the House and ratification by three-fourths of the state legislatures. Yet, in 1958, five members of the high court decided that the constitutional limits of “cruel and unusual punishment” should no longer be determined by the original intent of the framers, but rather by “evolving standards of decency that mark the progress of a maturing society.”

Ok, but who defines that moving target? It has the feel of a legislative function. But justices have decided in the ensuing years that they are more decent than the elected legislative bodies around the country and, in the process, have destroyed representative democracy.

I do not address the morality or policy of the death penalty or even the reliability of the process. The first question to be answered is whether our Constitution was meant to be amended by five justices who take it upon themselves to decide for Americans and their elected representatives what is “decent” today. That is far easier than abiding by Article V, but it does not have the backing of “We, the People.”

The president may well be mistaken to assume a post-conviction execution of Khalid Sheikh Mohammed. In a 1982 decision, five members of the U.S. Supreme Court struck down the will of the presumed “decent” members of a unanimous jury by holding a statute unconstitutional that permitted a get-away driver to be put to death because his partner in crime murdered their robbery victims. He was culpable, but the court said it would not be “decent” to execute a man who did not pull the trigger. Do you think KSM’s lawyer will argue, in like manner, that KSM did not pilot the planes?

Our present leaders have tainted the jury pool with their rhetoric and, ironically, have sullied the very system they say they would like to showcase as the world’s model of virtue. Perhaps these cowboys should at least leave the rope at the corral before heading to the courthouse.

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