Member Of Giuliani's "Justice Advisory Council" Supports 9/11 Trials

Over the weekend, former New York City Mayor Rudy Giuliani (R) went on a media blitz to bash the Obama administration's decision to prosecute five alleged 9/11 conspirators, including Khalid Sheik Mohammed, in federal court. "I'm troubled by the symbolism of it," Giuliani told ABC's George Stephanopolous.  "It seems to me that the Obama administration is getting away from the fact that we're at war with these terrorists."

Giuliani is essentially walking the GOP's party line: the accused terrorists aren't "criminals," and bringing them to New York to face trial will create an unnecessary risk.  However, according to a high-profile adviser to Giuliani's failed presidential campaign, the administration made the right call. 

Steven G. Calabresi is a co-founder of the Federalist Society, the most prominent conservative legal organization in the country.  He was also a member of the Giuliani campaign's "Justice Advisory Council."

Writing for Politico today, Calabresi said that "Obama has lived up to his oath of office by scheduling these trials before a life-tenured judge and jury."  He goes on to argue that military commissions, which have become the rallying cry of the right, would actually be unconstitutional:

The answer is that the Constitution's separation of powers provides that, while Congress makes the law and the president executes it or enforces it, only the life-tenured Article III courts assisted by a jury can impose punishments. The constitutional way to punish the 9/11 terrorists is the same way we would use to punish military interrogators who violated the law against torture. No Article III court or jury - no constitutional power to punish. It is a simple question of the separation of powers - something I had thought conservatives believed in passionately.

But, the proponents of military commissions say that we have always allowed court martials of enlisted personnel who violated military discipline or law and those trials are held before non-life tenured judges. Court martials have even on occasion imposed the death penalty.

This point is true as far as it goes, but it only establishes a limited exception to Article III for the purpose of maintaining military discipline. No one thinks the trials of the 9/11 terrorists have anything to do with military discipline. They have to do with well deserved punishment. When our government wants and needs to punish it must go to court to accomplish that. [...]

Calabresi rightly notes that terrorism is not "a law enforcement issue only," but he rejects the black-and-white distinction being pushed by Obama's critics.  Moreover, the unlikely fact that a co-founder of the Federalist Society can agree with the ACLU, but Republicans can't, is powerful evidence that the GOP's opposition is a matter of politics, not principle.

Read the whole thing HERE.