More, it misses the point of our objections, perhaps deliberately so. I think it’s a way of avoiding debate more than anything else.

First, while it may be appropriate to identify the American people as the “sovereign” to make a point about republicanism, in the present context, that observation is really misleading and beside the point. In the context of America’s actions before the world at large, the entity exercising the powers of the sovereign is the president.

Second, for that reason, the Constitution doesn’t represent “the highest and most binding expression of the will of that sovereign.” At least vis-a-vis the rest of the world, the “will of the sovereign” is expressed, in legal terms, through treaties and the like, but more generally in whatever actions the president may decide to take on foreign soil in the name of the United States.

Third, while it may be true in a colloquial sense that the collective citizenry of the U.S. “holds the government’s feet to the fire,” this isn’t really an exercise of America’s sovereignty. In asserting otherwise, you are conflating the concepts of national sovereignty that every country possesses with the rights of citizens in the U.S. to exercise their civil rights.

Having said all that, I basically agree that it makes sense for the U.S. to exercise its sovereign powers in accordance with “international law” whenever that can be accomplished consistent with our interests and without implicitly relinquishing measures of our sovereignty. It serves no useful purpose for the U.S. to identify itself as a rogue state when our aims and interest for the most part are consistent with those of other states and would be appreciated as such. However, note that this is well off the central topic of our discussion, which is whether the Constitution imposes limits on how the government deals with alien combatants captured on foreign soil.

Regarding Nuremburg, I don’t think it plays any larger role in this discussion than serve as an example of where the U.S. government, in its sovereign role, CHOSE to conduct itself in accordance with perceived international norms rather than brazenly act in a unilateral fashion. I’m not aware that any serious thought was given at the time or in retrospect that the U.S. government was actually required by its own Constitution to design and participate in those trials. While I have no doubt that our Constitution inspired the manner in which the Nuremburg defendants were treated, that doesn’t mean the Constitution required the U.S. government to act as it did.

You state: “Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue.” I disagree. The issue is whether the Constitution requires the U.S. government to extend to non-citizen enemy combatants captured on foreign soil substantially the same procedural protections enjoyed by U.S. citizens on American soil. And the answer is, it doesn’t. To arrive at that answer doesn’t involve “tolerating a disregard” for the limits the Constitution imposes on the government’s powers; it’s merely involves acknowledging that, when it comes to overseas enemy combatants, the Constitution imposes no such limits.

The limits on America’s sovereign powers you seem to crave are not imposed by the Constitution per se, but through the political process the Constitution guarantees. More specifically, if the citizens of the U.S. don’t like the way the president treats overseas enemy combatants, they can vote him out of office and/or elect a Congress that will use its powers of the purse-strings to rein him in.

Finally, your invocation of the specter of a “unitary executive” is all bark and no bite. The “unitary executive” is simply an observation that all of the executive powers of the federal government ultimately reside in the president. It would be a relevant concept to discuss in the context of a separation-of-powers debate, but I hardly see its relevance here, other than to make my seemingly uncontroversial observations seem somehow sinister.

Only if the defendant pleads guilty can we bypass a trial. Maybe KSM will plead guilty, we don’t know whether he will or not, because he hasn’t even been arraigned yet.

Now, I think that the Constitution IS a compact of the states to constrain and define the power of the national government. That’s admittedly a little bit different than your phrase “to constrain America’s inherent national sovereignty,” but I don’t want to ignore your point. The “sovereign” is the American people, not the Federal government. They work for us, remember?

Further, the highest and most binding expression of the will of that sovereign is the Constitution — which created, and at the same time limited, the Federal government. The entire point of having the Constitution in the first place was to balance the need for an effective national government while at the same time limiting its powers in such a way as to preserve the freedoms for which Americans had fought the Revolution. So to hold the government’s feet to the fire so as to make sure its actions are legitimate, each and every time it tries to do something, is the most basic exercise of sovereignty by a free people that I can even imagine. When the government exercises the awesome power of life and death, it is especially appropriate to exactingly hold the government’s feet to the fire.

The question is “what powers does the Federal government legitimately possess?” and therefore the distinction between an accused “foreign terrorist” (the presumption of innocence applies even to a guy like KSM) and “some actually innocent but fantastically unlucky schmuck who was in the wrong place at the wrong time” becomes unimportant. What is important is whether the government exercises its legitimate powers or whether it exceeds them.

I would not agree that the Constitution limits the legal power of the government over the rest of the world. As a legal matter, there is no such power to limit. Our inherent legal power as a sovereign people ends at our national borders; our legal powers elsewhere in the world are derived from treaties and similar legal arrangements which are all, as a matter of law, subordinate to the Constitution itself. The United States has no legal power over the rest of the world — absent a Congressional declaration of war (something which FDR had, which is why he didn’t need to go to court to invade Normandy). As a practical matter, we have overwhelming military power over anywhere we choose to project it. But we rightly seek legal authority for using that military power whenever it is practicable to do so, in the form of (for instance) a declaration of war or a treaty.

Now, since you mentioned World War II, please consider the Nuremburg trials. Note that when those trials took place, we had signed no peace treaty with Germany, and we were in effective military control of all German territory not under Soviet authority. Churchill wanted Parliament to pass bills of attainder and execute the Nazis, De Gaulle wanted to trot out the firing squads, and Stalin wanted to execute the highest-ranking 100,000 Germans who had ever worn a swastika. But we said, “No, we have to have trials first,” and that’s what happened.

Why did we do that? Did we do it because we liked the Nazis and respected them as worthy adversaries? Did we want to give the Nazis due process rights? Or did we do it because we believed we were somehow obligated to hold trials before killing them? If it was an obligation of some kind, from where did that obligation derive — and has anything happened to that obligation in the intervening 55 years that would make us act differently today?

Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue, at least that’s the issue the way I see it. (I don’t think that skepticism about the government’s exercise of power is a particularly “liberal” point of view, by the way.) We wouldn’t tolerate the government exceeding its powers when we had nooses ready for the Nazis, and we shouldn’t tolerate it doing so now that we have a poisoned needle ready for KSM.

Down the path you seem to advocate I see a powerful, unitary Federal government, with few limits on its sovereign power and the bulk of that power concentrated in the Executive. (I realize that you do not see it that way.) For so long as wise men and women lead that government, we can hope that all will be well, should a charismatic tyrant come along, the institutional limits on that person’s abuse of power would not be there. Down the path I advocate I see a constrained, limited and principled Federal government, which answers to the free citizenry of the United States. That government may not be as effective or efficient at solving problems and adherence to its principles may lead sometimes to results that look and feel unpalatable, but such a government is, it seems to me, ultimately more desirable than the first vision.

The notion of “suspending” our Constitution isn’t applicable, because KSM and Bin Laden aren’t American citizens. There can’t be a suspension of something that you weren’t entitled to, in the first place. This was exactly my point. It isn’t a matter of law, as applied to a citizen, but of a response to an enemy who seeks only our destruction. Not a criminal…an enemy. And one who seeks not our compliance, or our wealth-spreading, or our hands of sympathy, or our unicorns.

They wish to have us (all of us) dead, or in submission. It’s a war, and it’s far from over. There is a slippery slope, and this administration has put us on it.

And CB, you’re spot on relating that the Constitution binds the government only to its citizens and the several states, and has nothing whatsoever to do with protecting the rights of other nations or their citizens at war with the United States.

You’re missing the point. The Constitution doesn’t constrain the government’s power over the rest of the world. If it did, FDR would have been required to get court approval before ordering the Normandy Invasion. The Constitution only limits the government’s power over citizens of the U.S. (and over the states themselves). To believe otherwise implies that the Constitution represents a compact of the states to constrain America’s inherent national sovereignty.

America is free to CHOOSE to give foreign terrorists “due process,” whatever that implies; but for anyone to argue that this is REQUIRED by the Constitution is seriously mistaken. Sorry if this sounds like I’m quibbling with your argument. I’m not willing to let this point slide just for the sake of being tractable.

Jeff, you in particular are headed down a slippery slope here — if we suspend our Constitution for the sake of al-Qaeda prisoners, then maybe we’re willing to suspend it for guys like Nidak Hasan. And from there maybe we’re willing to suspend it for a child rapist. And from there a murder, and from there the drug dealer you write about. It’s not about how detestable the accused’s crimes are. It’s about us holding ourselves and our government to our own standards, for own own sake.

In this time when we have good cause to mistrust the government and in particular the executive branch, I’m a little bit surprised that this point should need to be clarified to a bunch of self-identified conservatives.At the end of the day, bin Laden cannot destroy America — he lacks that power, and he always did. But we Americans have that power. I will not sacrifice our Constitution for the sake of human filth like bin Laden and KSM, no matter how detestable they are.

But I didn’t post here to troll for an argument about civil liberties, Constitutional law, or criminal procedure. I wanted to demonstrate that it is possible to have both security and due process; we don’t have to choose one over the other.