Tuesday, November 24, 2009

Why Would Obama Take Such a Risk with KSM?

by Leon de Winter

I was involved with a similar fiasco with Ayaan Hirsi Ali in Holland. Why would Obama risk a constitutional crisis?

Some years ago, when the legal position of Dutch MP Ayaan Hirsi Ali was a matter of national discussion in Holland (she had lied about her refugee status when she entered Holland fleeing an arranged marriage, a fact she had talked about many times in interviews), Minister of Immigration and Integration Rita Verdonk, herself a member of Ayaan’s political party, insisted on pushing this issue to the very edge. Vehemently, Ms. Verdonk stuck to the facts, and formally she was right.

Yes, Ayaan had lied when she had fled to Holland, as many people knew inside and outside parliament, and formally Ms. Verdonk had the power to cancel Ayaan’s passport and declare her an illegal alien. The problem: What would this mean for the current session of parliament? Instead of 150 members, the Dutch parliament would have had only 149 members, a clear violation of the Dutch constitution.

Together with my dear friend Afshin Ellian, a law professor at Leiden University, I wrote an op-ed piece for De Volkskrant, the Dutch New York Times (only better — Holland has a population of 16 million, and the paper has a daily print run of over 300,000 copies).

We wrote that Ms. Verdonk was right, but the consequences of her rightness could be devastating. It would mean a constitutional crisis unlike any we had ever seen in Holland.

Everything that was debated in parliament would need to be annulled and the laws canceled, since parliament had never formally started with full membership as the constitution dictates. And Ayaan would have to be arrested and sentenced, since she had been acting as an MP without being a Dutch citizen.

Immediately, the presidium of parliament answered — the chairmen declared that Afshin and I overreacted. They stated it didn’t matter if Ayaan was Dutch or Somali, this was no problem for the functioning of parliament.

Of course, Afshin and I asked these politicians if parliament could also function with 148 members, or with 140, or 100 — where was the bottom line? The politicians tried to avoid this question, and after some weeks the status quo was protected.

In order to avoid constitutional chaos, regardless of the facts, Ayaan was declared a Dutch citizen and Rita Verdonk had to step down — although she had been right about Ayaan’s original legal status.

I am not an expert in legal matters, but I have some questions about the criminal court case against the five terrorists who will be brought to New York City. There must be readers who have the expertise to help me, a simple Dutch expatriate in California observing the political and legal circus surrounding the present administration.

Concerning the purity and transparency of the American justice system, I imagine it doesn’t make any difference if a suspect has killed one or two or a hundred people. The system has its own rules, equal to every suspect and blind to the identity of the suspect or his acts. The autonomy of the system is the essential difference between a legal system in a transparent democracy with separation of powers and the legal system in a tyranny.

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