The answer is not “the rule of law.” According to the WSJ, Holder said:
The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.
So the U.S. government has the option to try suspected members of Al Qaeda in civilian court or in military court. The “rule of law,” then, does not compel traditional civilian-court protections. However, the question remains unanswered. To say that one has an option is not to say why one exercised that option as one did.
Then what is the answer? It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.
This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.
This system is superior to the two possible one-tier systems. A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty. A pure high-quality system (civilian courts only) would result in too many acquittals. People who the government believes are dangerous will be back on the streets. The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convictions are not possible. The two-tiered system produces higher overall credibility without sacrificing the incapacitation of dangerous (or supposedly dangerous) people.
The main criticisms of Holder’s approach are that KSM and others will take over proceedings and use them for propaganda purposes, that secrecy will be compromised, and that the approach signals insufficient seriousness about the terrorist threat. The first two concerns are actually irrelevant. The DOJ will decide on a case by case basis, and if those concerns in any particular case are serious, it will opt for military commissions. The last concern is harder to evaluate, but it boils down to the claim that a blunderbuss system that results in outcomes that people distrust is better, on symbolic grounds, than a surgical system that produces the same pattern of convictions but with higher overall credibility. Why would the more intelligent approach signal lack of seriousness about terrorism?
ParatrooperJJ says:
The second criticism is NOT irrelevant. Look at the last Al Queda trial, the defense discovery was in Osama’s hands within seven days, blowing major holes in US intellegence operations.
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November 18, 2009, 12:36 pmGordo says:
Paratrooper JJ: Do you have a reputable cite or source for this claim.
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November 18, 2009, 12:40 pmJohnF says:
I don’t know what planet you practice law on, but the object of the criminal courts is not “accuracy.” If it were, we wouldn’t have the exclusionary rule, for one example. However, I may not understand your use of the term.
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November 18, 2009, 12:41 pmjb says:
What Holder is trying to do here is convict KSM without any torture-induced evidence and have everyone know it. In a military court, people might think there was secret evidence being used, and think that that secret evidence would have been torture-induced.
By tying his hands thus, Holder is saying that there is still enough evidence to convict without torture. This will cut off al-Qaeda propagandists at the knees, and ruin the case that torture was necessary. Also, it will be less damaging to U.S. intelligence as it won’t require as sensitive information.
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November 18, 2009, 12:43 pmTim says:
The fact of the matter is that we have never tried war criminals in civilian courts. We have case law all the way back to the civil war (and perhaps before that, I have only read back that far) that substantiates the military commissions to try, convict, and execute war criminals.
These people are unlawful belligerents. They are perhaps the most dangerous people in the world, responsible for the deaths of thousands of people. Terrorism is not a “crime” like murder, rape, or robbery. War crimes have always been, and should continue to be, prosecuted solely with and by the political branches of government.
The problem I have with how this has been handled is the refusal of Congress to declare war. Because of this refusal, there are no “lawful belligerents” in this fight except ours–our troops wear uniforms and fight under our flag. Our enemies (all of them as of today) do not wear uniforms, are not part of any nation’s Army, etc.
The reason international treaties defined fighting without a uniform as a war crime was, primarily, to protect civilians. If the body counts in Iraq and Afghanistan aren’t solid evidence of this doctrine’s importance, then I suppose nothing will be. Civilians are dying by the thousands in Iraq and Afghanistan because we have no way to identify the enemy like we would in a more conventional, lawful war under international war doctrine.
Trying these war criminals in civilian court is the scariest policy yet proposed by the Obama administration. It lacks any historical merit (see Ex parte Querin, In Re Yamashita, etc.) and makes every American less safe. I don’t even know how this has become political in 2009. In 1945, few, if any dissenters existed when we tried and executed war criminals for their crimes.
If I were to apply my personal biases, I might decide these cases differently. The fact of the matter is that these issues have already been resolved by courts a long time ago, and thus should not be open to politicized interpretation.
War sucks and the idiot box delivers its images to our living rooms now, where it didn’t in the past. Other than that, war crimes in 2009 are indistinguishable from war crimes in WW II. We’re observing the same behavior and should respond the same way.
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November 18, 2009, 12:47 pmadjunct says:
Many reasonable individuals object to the use of a federal criminal trial to handle KSM because it gives KSM — and his lawyers — vast discovery under the Federal Rules of Criminal Procedure. For example, Rule 16 provides that “the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or
places, or copies or portions of any one of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the
item was obtained from or belongs to the defendant.”
As experienced criminal attorneys are aware, disputes over what should be disclosed — and not disclosed — can be the subject of lengthy pre-trial hearings as well as the subject of years of appellate proceedings. In KSM’s context, one might reasonably worry about what will be disclosed.
Posner is unconcerned about this– he deems the worry “actually irrelevant.” His sole reason is his belief that the DOJ, in its judgment, will send a case to a military commission of the concern for secrecy is serious in any particular case.
First, I find it amusing that Posner reposes supreme confidence in the government and its ability to discern whether the concern for secrecy is “serious” or not. At this forum, at least, I have read, on more than one occasion, that the government might in fact make errors — and serious ones, at that.
Second, the government’s judgment is not final. It can be — and has been — overturned by district courts and appellate courts in the past, and will have its decisions overturned in the future. Thus, simply because the government thinks no relevant secret is at issue is no guarantee.
Finally, in a case of this magnitude, it is quite likely that the district court judge will wish to conduct a trial that will not be reversed. If there is a conviction, appeal is almost guaranteed. A federal district court’s decision to deny requested evidence is almost certainly going to be the basis for an appeal. Knowing this ex ante, a judge will have considerable pressure to permit broader discovery than is actually legally required to lower the chance of a successful appeal. In a perverse ripple effect, prosecutors will also have incentives to over-produce documents that are beyond their obligations to lower the chance of a successful appeal. While this may aid a trial victory, it will not benefit long-term security.
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November 18, 2009, 12:49 pmConstantin says:
(1) I’m not sure whether this is your thesis, of it is your summary of what you think is Holder’s rationale. Either way, the first clause is absurd. I don’t recall any of the 9/11 hijackers griping about inadequate in camera procedures.
(2) The second claim in the bold sentence fails to differentiate between information used for convictions and information used to thwart terrorist attacks.
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November 18, 2009, 12:49 pmKazinski says:
jb:
...and ruin the case that torture was necessary.
Not so fast there. We didn’t waterboard KSM to get him to confess to his crimes, we waterboarded him to get information about other attacks in the pipeline. Whether or not we had sufficient evidence of his involvement in 9/11, we still needed to find out about what was coming.
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November 18, 2009, 12:51 pmHans says:
Isn’t the bigger question why Obama and Holder decided to try the case in liberal New York — where a holdout juror will likely block the death penalty — rather than the moderate Eastern District of Virginia, the location of the attack on the Pentagon, where jurors are willing to impose the death penalty?
Isn’t this just a sneaky way for Holder, an ardent opponent of the death penalty, to keep the death penalty from being carried out?
(Liberal New York does not have a death penalty under state law. Moderate Virginia, a swing state, does have a death penalty, and uses it regularly.)
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November 18, 2009, 12:53 pmguy in the veal calf office says:
In your construct, then, the AG’s judgement is critical because if the AG mistakenly determines a case is “high-quality”, a person may walk free who could’ve been convicted in a “low-quality” trial.
I personally don’t trust the judgement of this AG because of his role in the Marc Rich pardon and his treatment of the OLC in the DC-Rep imbroglio.
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November 18, 2009, 12:54 pmBama 1L says:
Would Professor Posner care to support his assertion that military courts are more likely to convict than civilian courts are? Or the assertion that military courts provide a lower quality of justice than civilian courts do? It is by no means true that military courts always convict any more than civilian courts always acquit. On the quality front, every practitioner I have heard compare conducting a defense under the UCMJ and in civilian courts has said that nearly every defendant, whether “actually” guilty or innocent, is better off under the UCMJ. (Maybe the idea here is that the military courts trying terrorists would use some other substantive and procedural laws.)
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November 18, 2009, 12:55 pmbob says:
I was listening the that ignorant pantload Jeff Sessions hammer away at this point this morning.
I guess that Sessions is under the impression that Federal judges don’t really have any control over what happens in their courtroom and let the parties do whatever they want.
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November 18, 2009, 12:56 pmPubliusFL says:
But what does this do to military courts where secret evidence IS used? Won’t this approach lend credence to insinuations that all trials of terrorists in military courts ARE based on torture? I don’t see how the “two-tiered system produces higher overall credibility” (as Prof. Posner states) if the two tiers are conceptualized as “high quality” and “low quality” and a substantial number of trials in military courts is still needed due to operational/security/intelligence concerns.
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November 18, 2009, 12:58 pmTim says:
The military commissions created by Congress to deal with these war criminals bear very little relation to UCMJ courts and definitely do not have the protections for defendants that would be expected in that sort of trial.
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November 18, 2009, 1:00 pmBill the skeptic says:
Professor Posner wrote
Why do you think we would have to release individuals who are the functional equivalent of prisoners of war after an acquittal? Traditional law of war theory allows detention until the end of the conflict, and is not anchored to any particular trial result.
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November 18, 2009, 1:00 pmKazinski says:
Bob,
Jeff Sessions was a US Attorney for 12 years. I think he has a better idea than any of us what happens in Federal Courts. Unless, or course, you’d like to share your special knowledge with us.
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November 18, 2009, 1:02 pmBarrySanders20 says:
Do you think “torture” was used agaisnt KSM to obtain evidence for conviction? I don’t. I think we used harsh tactics to obtain information to disrupt future attacks and eliminate other high priority targets.
Left unsaid is why sh*tbags like KSM, captured elsewhere, are entited to the rights of American citizens.
But to your points:
“Endless detention without trial is no longer a politically viable option.”
Politically viable for whom? Obama? Because he promised to cloase Gitmo to get elected, and now has to deal with the consequences of that? Great to know you think Obama’s political viablity is more important than the risks associated with going through with his show trials of the worst terrorists in federal court. Wonderful celebration of the rule of law.
“The first two concerns are actually irrelevant. The DOJ will decide on a case by case basis, and if those concerns in any particular case are serious, it will opt for military commissions.”
Again, this undermines your civilian law is wonderful assertion, but your faith in lawyers is touching.
No sane society deals with its avowed enemies this way.
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November 18, 2009, 1:05 pmSigivald says:
Where do you get the idea that war has not been declared? The only thing lacking is the words “declaration of war” or “war ... declared”, which are not legally required (search in vain for them in the Constitution, for instance).
Congressmen and professors of law at the time (or at least one of them!) sure thought they “declared war” in the Constitutional sense. I would imagine that Congressional intent alone should be definitive enough here, no?
For purposes of American law, there is no magic incantation that need be spoken by Congress to declare war; anything that authorized the President to use his wartime powers is a “declaration of war” for Constitutional purposes, by all the analysis I’ve seen. (Various international “laws” and treaties might have such an incantatory requirement, but they’re not really relevant here.)
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November 18, 2009, 1:07 pmDangerMouse says:
What happens if a bunch of libs get on the jury, and refuse to convict him? Are they going to let him free?
If not, then why bother with a trial?
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November 18, 2009, 1:08 pmRandy says:
The WSJ and others make a conclusion that this event was an ‘act of war.’ On what basis does anyone draw that conclusion? What specifically marks the distinction between and act of war and a criminal act?
If they had ‘only’ killed a hundred people, would that still constitute an act of war? Or if they only killed ten? What if they took down a modest sized building and no one was killed, would it still be an act of war?
Is there a bright line distinction between the two, or is it a fuzzy “I know it when I see it” sort of thing?
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November 18, 2009, 1:15 pmRandy says:
Mouse: “What happens if a bunch of libs get on the jury, and refuse to convict him? Are they going to let him free?
If not, then why bother with a trial?”
Indeed, this is always a possible result in ANY court of law. Darn that pesky Constitution! Without it, we could be just as fascist as the Nazis and just convict people we know are guilty without the bother of trials.
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November 18, 2009, 1:17 pmHoward Gilbert says:
In order to charge someone in civilian court, there must be a civilian crime. 9/11 certainly falls in this category. However, during an armed conflict when a member of a foreign country’s armed forces attacks a US warship, throws a grenade at US soldiers, or otherwise engages in what we would normally think of as “combat”, it is not clear that there has been any crime. If there has been, it is certainly not clear that just throwing the word “terrorist” at someone gives you jurisdiction to try him in civilian court for things that happen half a world away.
Any legal strategy involves trade-offs. It is essential, then, that the government leave all of its options open to avoid creating a gap in legal coverage. If the administration declares that it will no longer detain anyone as an enemy combatant, then someone charged with a crime in either military or civilian court no longer faces any consequences if he declares that he is a soldier in an enemy army, demands protection under the Geneva Convention, and asserts the protection of combatant immunity. We can argue both sides of whether he is entitled to such protection, but a judge could certainly agree with him. Of course, this claim implies that he can be detained as a POW for the duration of hostilities, but if the administration has for ideological reasons precluded that possibility they no longer have a basis to hold him.
Similarly, by maintaining the option of Military Tribunals, the administration allows the civilian courts to prove that they can handle cases like this without compromising national security. If judges issue broad orders of discovery that will compromise the sources and methods of intelligence gathering, then the administration simply withdraws the civilian charges and transfers the case to military tribunals.
When we last heard from KSM, he admitted his role commanding the 9/11 attacks and was planning to plead guilty before a military commission. Then the new administration suspended the process for a long time, and decided to transfer the case to civilian court. If KSM continues with his plan to represent himself and plead guilty, then it really doesn’t matter if he does it in civilian or military court. Those of a certain ideological persuasion would prefer civilian court because of their personal bias. This has nothing to do with evidence because none is needed to accept a guilty plea.
If KSM changes his mind, but the civilian court case can proceed without compromising national security and classified information, and the case is proven with available evidence, then the advocates of civilian trials will have demonstrated the ability of the Federal courts to handle at least the simplest cases. On the other hand, if the courts allow KSM to do real harm to the US and to exploit the civilian justice system to the benefit of al Qaeda, then the administration will have to shoulder full responsibility. None of that had to happen. The starting point, before they got involved, was that he was going to plead guilty, and any other outcome is directly attributed to Holder and Obama.
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November 18, 2009, 1:17 pmOrder of the Coif says:
There is NOTHING “low quality” about the United States military court system whether it’s by Court Martial or by Military Commission.
The OP knows nothing about either and it shows.
Just read the comments in last week’s 6-member jury post.
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November 18, 2009, 1:20 pmgeokstr says:
I thought that these guys plead (pleaded? pled?) guilty a couple years ago and asked to be hanged. Can a lawyer please explain what exactly is accomplished by Holder ignoring that plea and going for a trial instead, after they already admitted guilt?
And does no one see this as strictly a political ploy, where the “defendants” can force Cheney, Yoo, maybe even Bush and others, to testify under oath to justify their decision that waterboarding is not torture? Seems to me that would fire up their base, which, including some of them that comment here, have been calling for this very thing for years.
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November 18, 2009, 1:23 pmDavid Mader says:
The point has been made elsewhere, but if the only cases sent to “high quality” civil trial are those cases the government is almost certain to win — such that conviction is guaranteed as a practical (if not a legal) matter — isn’t the effect to lessen confidence in the “high quality” system? If these trials come to be seen by the American public as show trials with a guaranteed outcome, it’s fair to anticipate that the reputation of the United States Courts will be diminished as a result. If that’s the case, wouldn’t it be better to keep these prosecutions in the low-quality system, which (according to Posner, although I think it’s a fair characterization) already suffers from credibility concerns?
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November 18, 2009, 1:23 pmA. Zarkov says:
So US soldiers always get tried under the “low quality” system of justice, while some of the soldiers of Islam get tried under the “high quality” justice. Does Poser actually think Americans will be more accepting of this state of affairs then simply trying all the soldiers of Islam in a military court? Does he think Americans are less mad at contemporary Islamic terrorists then they were of the WWII German saboteurs (who committed no acts of sabotage) who got tried in a military court?
In my opinion, Poser presents a “low quality” argument to explain why Holder chose to try KSM in a civilian court. There are other more coherent, and compelling arguments to be marshaled.
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November 18, 2009, 1:23 pmbob says:
Gosh then do you mean that this Sessions goofball is actually intimately familiar with the controls that federal judges exercise over their courtrooms and he is just pandering to the Fox news crowd by making arguments that he himself knows to be absolutely absurd?
Could be I guess ...
I though for sure that he actually believed that some Federal Judge is going to let KSM stand up whenever he wants and start lecturing about the infidels.
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November 18, 2009, 1:26 pmSean O'Hara says:
I don’t see how an attack on a nation’s military headquarters by foreign nationals can be anything other than an act of war. Ditto the attacks on the USS Cole and Khobar Towers. The attacks on the Twin Towers, having been conducted by the same group, gets grandfathered in.
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November 18, 2009, 1:27 pmPJens says:
Is the president helping by saying that KSM will be convicted and executed? http://corner.nationalreview.com/post/?q=OTcwYmFmMGFkMDliMmY5ZDY0MDdjMzZkZDRmNzYwZTI=
My question is...if KSM somehow achieves a mistrial, or is found not guilty, can he be held and later tried in a military court?
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November 18, 2009, 1:29 pmjheath says:
We already have this guy locked up; offering a trial now is like Pres. Obama suddenly offering to re-debate Hillary on campaign issues. We’ve already beat him and have nothing to gain. We convince nobody of our virtue with a conviction or an aquittal. If the attacks were “both” crimes and acts of war they were also *neither*. They were designedly in-between because the terrorists wished to have it both ways — make war without a state. They wanted to fall through the cracks between war and crime. Let us oblige them. This person could have died locked in the bowels of an ever-steaming U.S. naval vessel, with no trial, awaiting Al Qaeda to lower its flag, sign an armistice, and exchange prisoners like the state it’s not.
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November 18, 2009, 1:33 pmDangerMouse says:
Indeed, this is always a possible result in ANY court of law. Darn that pesky Constitution! Without it, we could be just as fascist as the Nazis and just convict people we know are guilty without the bother of trials.
Is it a possibility in a military commission trial? I doubt it. They’d continue to hold him if they deemed him a security threat, I suspect.
But fine. Go out there and say: If KSM isn’t convicted, he gets to walk off scott free. See if Obama survives that politically. He won’t. And that’s why even libs in his own party are blasting him over this decision. And what are you going to do when the people tear him to shreads upon his release?
Oh, and by the way, you fail the thread for the Godwin response.
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November 18, 2009, 1:40 pmPatHMV says:
As others have noted, no judge is going to want to free KSM (or rather overturn his conviction, since he’s not going to be freed regardless of the outcome) on a technicality (well, a couple might, but mostly not). If there are any evidentiary issues, there’s going to be a natural tendency to look hard for a way to uphold the conviction. Since it will technically be a normal criminal trial, this could result in some bad law being made which would establish precedents which could be used in later, non-terrorist related trials. Much safer to have a special military judicial system devoted solely to these cases, to help prevent any relaxation of the rules from lessening the rights of ordinary Americans charged with ordinary crimes.
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November 18, 2009, 1:41 pmbailey says:
What control did the Federal Court exercise over Moussaoui? I seem to recall the circus that descended into a few years ago. How about the Chicago 7? If you don’t care what happens to you, the Judge has very little power. The sources of what happened, intelligence wise, during the Blind Sheikh’s trial are too numerous to mention. Go educate yourselves. Of course, you can also use your radical lawyer to relay messages as well. Finally, there is a presumption that jihadists are somehow softened or mellowed by trials that are open and fair. What proof is there of this article of faith. The Blind Sheikh’s trial was fair-Did it prevent 9/11? We have bent over backwards for the Palestinians-Has that resulted in a less radicalized society?
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November 18, 2009, 1:46 pmPJens says:
Apparently AG Holder just told the Senate that KSM would go back to square one if the criminal trial doesn’t work.
http://hotair.com/archives/2009/11/18/the-definition-of-show-trial/
Um, why is there a criminal trial again? I still have not yet heard a good reason, especially to have it in NYC.
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November 18, 2009, 1:48 pmThink about this . . . says:
“But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also.” Matthew 5:39
Jesus was such a liberal. Could any society based on (at least in part) his teachings be “sane”? No way!
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November 18, 2009, 1:48 pmbailey says:
Wait, if they act up, will the Judge have them bound and gagged? I don’t think the jihadists will like that. It would probably convince them of the unfairness of the trial and be used as a recruiting tool. These are the ultimate “eggshell skull” defendants.
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November 18, 2009, 1:49 pmEx parte McCardle says:
Time was, it was a point of pride to capture the leader of your enemies and parade him shackled through the streets of your capital. Now, I guess, acccording to Jeff Sessions and others, the proper response when the enemy’s general is securely in your custody is to continue cowering in fear before him.
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November 18, 2009, 1:50 pmbob says:
Some people apparently believe that you have to convict people of a crime before imprisoning or executing them. A quaint idea, I know.
Do you know where the World Trade Center was?
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November 18, 2009, 1:51 pmtvk says:
Agree with most of what you say, except the bottom line. Isn’t the two-tier system going to reduce the credibility of the “low-quality” tier even further? If we tried both the people we have really good cases against and the people whose cases are weaker in commissions, we can at least justify the commissions by saying that they achieved reasonably accurate results because many of those convicted were clearly guilty. But now, we are pretty much admitting that the military commissions are show trials for the people against whom our evidence sucks.
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November 18, 2009, 1:51 pmRob Robinson says:
I do agree with the conservative critique that this is mainly for show–the government isn’t going to risk letting KSM go, so this is something of a farce. I doubt Holder would risk the “high-quality” track if there wasn’t an evidentiary slam-dunk here. This administration is not going to risk the political fallout of such an acquittal simply for “rule of law” values for terrorists, IMO.
That said, haven’t we already tried several (dozens?) of these folks in civilian court without the sky falling down? Did the wheels come off when we prosecuted Omar Abdul Rahman for the first world trade center bombing? How does this really make Americans “less safe”? Do you think the terrorists would not have already attacked again if they had the capability? Most of this conservative rhetoric borders on hysteria, e.g. John Shadegg’s comment yesterday: “Well, Mayor [Bloomberg], how are you going to feel when it’s your daughter that’s kidnapped at school by a terrorist?”
Tim: do you know about the facts behind Quirin? It’s a terrible case: the Court realized they couldn’t agree on the reasoning to support the tribunal system, but the saboteurs had already been executed! Scalia noted in his Hamdi opinion that the decision wasn’t the Court’s finest hour. I’m also not sure about your comment that military tribunal procedures differ greatly from a standard UCMJ court–don’t Hamdan and Boumediene say otherwise?
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November 18, 2009, 1:53 pmsecond history says:
So US soldiers always get tried under the “low quality” system of justice, while some of the soldiers of Islam get tried under the “high quality” justice.
As noted above, military commissions as designed by Congress and DoD are not the same as courts-martial proceedings. Hasan will receive more justice during his court-martial than any Gitmo defendant would receive under a military commission.
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November 18, 2009, 1:53 pmbailey says:
Ex parte-that was usually followed by a summary execution, not a granting of the full protection of whatever document governs your country. The benefits of a trial in civilian court are ephemeral (the jihadists will think we’re fair) while the dangers are concrete (access to discovery will be used against us as in the Blind Sheikh trial). Were the Military Tribunals used throughout our history up until the more enlighted 2000’s examples of cowardice? Under your analysis, the answer would have to be “yes” and any future combatant of any type gets a trial in civil court.
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November 18, 2009, 1:56 pmConnecticut Lawyer says:
Andrew McCarthy, the federal prosecutor on the first World Trade Center bombing case, thinks that Obama wants KSM in federal district court precisely to permit KSM’s lawyers to put the Bush administration and the CIA on trial. That way, Obama can curry favor with the left without getting his hands dirty — he can always say “the judge did it” when the judge lets the defense bring in all kinds of evidence of how evil the United States Government is.
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November 18, 2009, 1:57 pmDangerMouse says:
Some people apparently believe that you have to convict people of a crime before imprisoning or executing them. A quaint idea, I know.
So every time we’re bombing AQ leaders in Pakistan and Afghanistan with missiles fired from UAVs, it’s because they’ve been convicted by a jury and sentenced to the death penalty?
Oh, no? Well, then under what authority are we killing al Qaeda members then? And why wouldn’t that apply to KSM?
The lunatics are running the asylum.
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November 18, 2009, 1:58 pmSonicfrog says:
I have wondered if some of the outrage on this decision is based on the appearance of certain conviction in the military court vs. a chance (magnitudes less than slim) that he could be found “not guilty” in civilian court?
As far as “state secrets” go, I would hope that after all this time, the useful info / people (read terrorists) that could be tracked down would be by this time. Anyone who was associated at all with KSM would already know they were a target of US and international investigations. And It’s been, what, five, six years since we got the info out of KSM. Need I remind anyone that Valerie Plame was out of the field for as long a period, and that was used as justification by some for not investigating or prosecuting the leakers. So after that amount of time, state secrets are irrelevant.
That said, is still am not signing off on this as the wise move here. I am certain though that one of the peripheral motivations for this choice is to finally bring the topic of US sponsored torture out into the open. This needs to be purged from our system once and for all.
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November 18, 2009, 2:00 pmDrGrishka says:
With all respect, I think Eric has gotten this backwards. Establishing a 2 tiered system will foster a view that the lower tier is just a rigged Star Chamber which the government uses whenever it cannot win in a “fair” fight. Instead of sending people to MCs based on the nature of their offenses, and presenting MCs as just as conscienteous and just as fair as civilian courts or military court-martials, the tw-tiered approach will result in presenting MCs are kangaroo courts. To be sure, some people will not accept that MCs can be as fair as civilian courts, but then those people won’t accept the two-tiered system either.
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November 18, 2009, 2:01 pmTrebers says:
A show trial would actually be preferable to this. Then, at least, the authorities would be decent enough to maintain the pretense that an acquittal is actually possible and meaningful.
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November 18, 2009, 2:01 pmConnecticut Lawyer says:
sonicfrog — thanks for confirming McCarthy’s point, but I don’t think it’s a peripheral motivation, but rather the primary one.
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November 18, 2009, 2:05 pmHerb Spencer says:
Their control is solely within their discretion and rarely overturned. On so many levels, THAT’s the problem!
As a Viet Nam-era veteran, where I served as a USN law clerk, and a lawyer with 27+ years active trial experience, I am offended by Posner’s casual statement that second tier, military courts are good enough for the low quality cases. His rather careless phrasing, implying that military trials for servicemembers subject to their jurisdiction are of like caliber, are not in accordance with practice and procedure under the UCMJ or its outcomes, as prior posters have testified from their own personal knowledge and experience, which I corroborate here. Clarification, please, professor, if not your (grudging?) appreciation for those now or formerly on active duty in the armed forces as the ones who permit you to pontificate so recklessly and, yes, insensitively from the comfort of your academic chair.
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November 18, 2009, 2:09 pmSonicfrog says:
You’re welcome.
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November 18, 2009, 2:14 pmRon2 says:
This thread looks like the floor of a day care center at 4:30 p.m.
I don’t understand why Professor Posner ceded Holder’s claim that it is optional whether to try KSM for mass murder in an Article III court, or a fake court.
I also don’t understand why a serious person would claim that an elected politician such as Senator Sessions speaks as an oracle of truth and experience, rather than as a political animal.
Then again, it’s easy to keep a straight face at one’s keyboard. Mine’s deadly serious at the moment.
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November 18, 2009, 2:16 pmB.D. says:
The case against KSM must be a slam-dunk since, as you said, there is no requirement that he be tried in civilian court. After all, the military commissions were established for a reason.
And while Obama and Holder have created a two-tiered justice system for terrorists in making this decision, I sense something else to their decision-making that you did not mention. Yes, a conviction in civilian court of a mass-murdering war criminal will enhance our credibility internationally—well, at least in what used to be called “the West.” And yes, this two-tiered justice system will enable us to protect ourselves. Being able to cherry-pick prosecutions for reasons of evidentiary strength or national security considerations is certainly handy when you’re in the midst of fighting jihadism at home and abroad.
But this trial may end up having the two following purely political results, which can’t be ignored: (1) KSM will rant and moan and complain about America’s evil empire and how he wishes he could have killed more Americans . . . this will be a public forum, and widely reported in the media . . . Americans will understandably rally around the flag, thereby giving Obama a nifty boost; and (2) several embarrassing examples of both misfeasance and malfeasance by US officials during the arrest and investigation of KSM during the Bush administration will come to light, thereby making Obama look competent in comparison.
If all goes according to plan, Obama will look fantastic. If something bad happens in lower Manhattan, or even if the trial turns into a several-years-long circus a la Moussaoui, then Obama might have some ’splainin’ to do.
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November 18, 2009, 2:23 pmJoe says:
“low-quality” (military) tier.
I keep on hearing from critics that the “low quality tier” actually is a quite respectable affair.
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November 18, 2009, 2:26 pmRandy says:
Sean: “I don’t see how an attack on a nation’s military headquarters by foreign nationals can be anything other than an act of war.”
So then I take it you are in the “I know it when I see it” camp.
Exparte: “Time was, it was a point of pride to capture the leader of your enemies and parade him shackled through the streets of your capital.”
Time was, it was a point of pride to cut off the hands and feet of your enemies, or do other forms of mutilation. Or you would just parade them and then feed them to the lions. There’s a lot of stuff we did way back when that we have decided civilized society shouldn’t do anymore.
In WWII, we held many german enemy combatants and officers, and instead of parading them through the streets, we treated them like human beings. The results were that they went home with an appreciation for democracy, and that helped them after the war. And it helped us.
I just read an article about a german officer during the war who died recently, and left his fortune to a small town in Scotland. He was captured during the war and was surprised at how well treated as a POW, and remarked how friendly his captors were. He died without heirs, so he left his fortune to them, as he believed he left the town with more friends than he ever had.
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November 18, 2009, 2:26 pmSG says:
Certainly we can try him in a civilian court, but the Congress stated explicitly and near-unanimously (Senate:98–0/House:420–1), that this was to be treated as an act of war. Obama’s decision here is profoundly anti-democratic in that it fundamentally disregards the express will of the people.
If our elected representatives feel that war is no longer the correct way to treat 9/11, then they should rescind their authorization. And in that case a civilian trial would be appropriate since with the cessation of hostilities we would otherwise be compelled to release him.
Instead, we’re going to be treated to a show trial (“I don’t think it will be offensive at all when [Khalid Sheikh Mohammed is] convicted and when the death penalty is applied to him,” Obama told NBC’s Chuck Todd. ), and I’m guessing we’ll be establishing precedents that degrade the protections received by common citizens. And the violation of our Geneva obligations (trying him before a civilian court given our declared state of war) is the icing on this particularly rancid slice of cake.
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November 18, 2009, 2:33 pmAdam J says:
Tim– “It lacks any historical merit (see Ex parte Querin, In Re Yamashita, etc.) and makes every American less safe.” I’m not entirely sure what exactly “historical merit” is, why its particularly important, nor whether military tribunals actually have greater “historical merit”. Is repeating history its own reward? Also, the two cases you cite involve people engaging in terroristic acts or war crimes on the behalf of a nation at war with the United States. KSM wasn’t acting on behalf of another nation in an illegal act of war– Al Qaeda shares almost no properties similar to that of a true nation– it has no land, no standing army, no citizens, no laws, etc. etc. Trying to view the circumstances we have now as analogous to the cases you cite seems silly, even counterproductive to me.
Nor have I yet to understand how this makes us less safe. The two potential explanations I’ve hard are that we will compromise current intelligence operations and we will provoke the terrorists. But, the man was captured over six years ago! What information could possibly have relevance now that would need to be disclosed? And as to whether we will provoke terrorists... are we now willing to let potential retaliation by terrorists compromise our own political and judicial processes through threat of force?!? Sounds like the terrorism is working if that’s the case.
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November 18, 2009, 2:35 pmKilo says:
This is a bad, bad idea. It de-legitimizes the military tribunals, makes these guys public martyrs with 24/7 Al-cable coverage, and drags the process out for years.
More fundamentally, these guys are non-uniformed hostiles, captured abroad in the field, and should have been treated as outlaws (in the original “shoot on sight” sense of the word), or pirates (hang when caught), or saboteurs (shot when caught) from the beginning. Summary execution pending completion of elective interrogation seems like the correct outcome.
Treating them as common criminals makes the US look weak and foolish — and invites more attacks.
The intent in the first World Trade Center attack was to bring down the building when fully occupied, which would have caused about 50,000 dead. Eventually these guys are going to get lucky, and a LOT of Americans are going to get killed.
This Holder/Obama decision increases the likelihood of that happening.
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November 18, 2009, 2:37 pmPJens says:
To bob...
KSM ought to be tried in a military court. And I question why this is being held in NYC because it will be very hard to find an impartial jury there.
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November 18, 2009, 2:37 pmCato The Elder says:
Indeed, the Romans marched Jugurtha and Vercengetorix in magnificent triumphs like you suggest. However, these men were of noble blood, admired for their spirited bravery in open battle by their adversaries, no cowards like this KSM. Note also that they were strangled ritualistically, a method of death widely regarded by the Romans as rather sordid — after all, they did not last as they did by according their enemies excessive deference. But perhaps these are mere inconsequential differences. If you’re suggesting something like marching the scoundrel down West Street, subjecting him to jeering and abuse, and for final punishment throwing him off 1 World Trade Center when it’s completed...well, then, I can definitely sympathize with your wish for savage justice.
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November 18, 2009, 2:38 pmDangerMouse says:
What I’d like to know is, what kind of moron would be a juror in this trial? Would they give you around-the-clock police protection for the rest of your life? Would you have to be relocated afterwards via the witness protection program? Needless to say, the judge who tries this idiotic case also will need similar protection. Because apparently we need to have full-blown trials to kill AQ members now, notwithstanding that we’re still bombing them.
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November 18, 2009, 2:40 pmDangerMouse says:
And I question why this is being held in NYC because it will be very hard to find an impartial jury there.
Believe me, it is a myth to state that New Yorkers won’t be impartial. There are plenty of libs here who think that 9/11 was plotted by Sarah Palin or something. Only some that dumb would agree to be a juror in this trial, given the potential security implications.
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November 18, 2009, 2:42 pmbob says:
Are you unaware of the fact that different standards and rules apply to people in custody versus those on the battlefield?
Are you really that ignorant?
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November 18, 2009, 2:50 pmDerHahn says:
Connecticut Lawyer says:
Andrew McCarthy, the federal prosecutor on the first World Trade Center bombing case, thinks that Obama wants KSM in federal district court precisely to permit KSM’s lawyers to put the Bush administration and the CIA on trial.
In that sense the NYC trial is a win-win for Obama and Holder.
If KSM is convicted, it will be touted as evidence that enhanced interrogation was/is unnecessary to fight terrorism (never mind that it’s being used for intelligence gathering, not criminal convictions)
If there is an aquital or mis-trial, then it will be because the eviiiill Booosh administration left a mess that Obama has to clean up.
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November 18, 2009, 2:53 pmDangerMouse says:
Are you unaware of the fact that different standards and rules apply to people in custody versus those on the battlefield?
Nice dodge, but even if different standards apply, it’s not clear that such standards would compell a criminal trial as opposed to some sort of military commission that deals with the realities of capture on the battlefield and war-time conditions.
The reason KSM is being tried in NYC is because of politics. End of story. That is the only reason it’s being done.
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November 18, 2009, 3:02 pmJames T. Carrington says:
Again it is hilarious that living in fear of retaliation due to a non-tribunal trial somehow makes any sense at all. KSM wouldn’t just be shot at the end of interrogation, no matter what the Romans here would have us do. How would trying him in court vs tribunal make your hypothetical revenge massacre any less plausible?
Right, because if we had just shot or finished drowning KSM after interrogation, that would scare off these terrorists looking to kill thousands. It’s the “weakness” that the terrorists are embiggened by, not the fact that they are mental defective fundamentalists empowered with tools of chaos and the labor of impoverished bloodthirsty savages. KSM was angry about our trial court system, which is why he signed up with Osama and Zawahiri in the first place. Clearly.
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November 18, 2009, 3:09 pmHan Solo says:
Why is everyone acting like Military Tribunals are improper or something?
A military tribunal is the legal, proper, established way to handle these sort of cases.
The only reason this is an issue is because Bush was too much of a PUSSY to get them done and overwith.
Every one of these guys should have had a tribunal, and either be let go home, or lined up on the wall outside at GITMO and show by firing squad.
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November 18, 2009, 3:09 pmfishbane says:
Left unsaid is why sh*tbags like KSM, captured elsewhere, are entited to the rights of American citizens.
I wonder why so many apparently legally oriented minds need to be reminded that the U.S. treats non-citizens accuse of crimes the same way, in nearly all contexts, when it comes to this topic. It is almost as if they’re trying to draw a distinction that doesn’t exist in the minds of readers who might not know that.
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November 18, 2009, 3:15 pmAl says:
Are you unaware of the fact that different standards and rules apply to people in custody versus those on the battlefield?
Are you really that ignorant?
Are you unaware of the fact that many of the UAV strikes have been in Pakistan, which last time I checked was not “the battlefield” (or at least not our battlefield)?
Are you really that ignorant?
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November 18, 2009, 3:18 pmed says:
bob,
so now the battlefield is to include civilian settlements in countries with which we are not at war (declared or undeclared)? in that case, KSM did not commit a crime as the WTC is materially not different from a hut in Waziristan, at least not in the minds of AQ or any others we seek to impress with our legal system.
i think the conflict between the administration’s belief that summary execution (or targeted assassination) of terrorists abroad is just fine, but a terrorist we captured has the rights accorded any American citizen, is quite real. but i think we can all agree that these people need to die. the argument is just in the method.
if that is true, then a trial is indeed pointless and just for show. unless you think merely allowing KSM to proclaim innocence in court while juicing up the chair is some kind of justice.
.
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November 18, 2009, 3:22 pmAdam J says:
Kilo– “...makes these guys public martyrs...”. Martyrs?!? Gee, maybe it’s me but I think a trial will wipe away any sense of martyrdom people might have for them being tortured in a hole, by exposing what evil men they are. I think it’ll be as successful as Eichmann’s trial in a Israeli civilian court– it exposed the ugly rationations that were necessary to perform acts of great evil. The man is a coward who can’t live peacefully in a world that has different belief systems which challenge the legitimacy his own. Pretty pathetic if you ask me.
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November 18, 2009, 3:22 pmDotar Sojat says:
I think that KSM’s lawyers will bring up the torture allegations and try to put the Bush administration and the CIA on trial, and that is just fine with Obama, Holder and the rest of the American Left.
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November 18, 2009, 3:23 pmegd says:
While Mr. Buchanan isn’t always well received at this blog, he does raise some interesting questions.
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November 18, 2009, 3:32 pmSonicfrog says:
We already look weak! By not engaging in real warfare, absolutely destroying the enemy, we have exposed a weakness.
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November 18, 2009, 3:33 pmbear says:
Nicely put Coif....I can’t really comment on the OPs knowledge, but I agree that nothing is “low-quality” about the military courts-martial or commission system.
This however:
I find abhorent and repulsive. Is this acceptable to anyone else?
–bear
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November 18, 2009, 3:41 pmed says:
Adam J–
I think the major difference between the Eichmann and KSM trials is that Eichmann’s took place 15 years after his side had been utterly defeated, humiliated and eliminated. Had Eichmann been caught amidst the hostilities, he probably would have been summarily executed (USSR) or at the very least detained until hostilities ended like Rudolf Hess, then tried by a military tribunal and hanged (Hess got life, but he was not responsible for the Holocaust the way Eichmann was).
KSM’s side has been set back, but hardly eliminated and not at all humiliated.
What’s more, though there were doubtless a few die hard Nazis left in 1960, they were not about to risk their lives or freedom to make a point about a dead ideology. The same cannot be said of KSM’s ilk.
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November 18, 2009, 3:43 pmPLR says:
So Buchanan believes fake wars should entail fake courts, for consistency? Most interesting.
If only we had something like a rule of law to show us the way in the darkness...
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November 18, 2009, 3:43 pmPubliusFL says:
DangerMouse’s point, as I understood it, isn’t that a revenge massacre is inherently less plausible with a tribunal. It’s that the possibility of a revenge massacre has more of an impact on a civilian trial. You don’t need to find civilians willing to serve on a jury to hold a military tribunal. You just issue orders to a bunch of qualified soldiers and they say “yes, sir.”
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November 18, 2009, 3:43 pmTim says:
The problem without an explicit war declaration is that anyone we capture is an unlawful belligerent. Without a defined enemy, there is no way to distinguish between legitimate enemy war criminals and civilians, because the distinction isn’t unclear–it’s completely absent.
The reason, as I see it, for all the political strife is that we’re applying doctrines that haven’t been used in a long time, that were developed for conventional warfare with a uniformed, foreign army, to a modern-day, unconventional war in which we have a uniformed army and abide by the rules of war, but our enemies do not. This is a disaster for our troops, who have had unprecedented difficulty identifying the enemy on the battlefield. If one presupposes what I suggested before–that the purpose for these international “laws” is the protection of civilians–distinguishing between lawful combatants (if any), unlawful combatants, and civilians is difficult, if not impossible.
The President of the United States is in dereliction of his duty to try war criminals in a civilian court. This is not an article III issue. Congress intentionally removed this from their grasp, and granted the President the power to resolve this issue and even provided a lengthy appeals process for the verdicts. In all I’ve read thus far (which is extensive, but I’m positive that there’s still much more to read), I cannot fathom why the Congress-mandated military commissions are viewed as insufficient to solve this problem. They have worked in the past quite effectively.
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November 18, 2009, 3:46 pmOlorin says:
The OP’s point, I believe, Randy, is noting what I have heard several leading democrats say, to wit, and I paraphrase “Even if they are convicted, if we still think they are dangerous, we will not release them”. So I think the point of “what’s the point” is quite correct.
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November 18, 2009, 3:50 pmMark Field says:
I think you’ve forgotten some pretty obvious examples: Timothy McVeigh, the KKK, etc. We try terrorists in civilian courts all the time. In fact, we are required to do so under Ex Parte Milligan (a case involving a conspiracy to commit a terrorist act).
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November 18, 2009, 3:51 pmAnderson says:
The notion that KSM is a “war criminal” continues to puzzle me.
Private persons do not get to declare war. Criminal organizations do not get to declare war. Only sovereign states get to declare war.
If KSM were a general in an opposing army, and 9/11 was some sort of military strike, then we would have violated the Geneva Conventions 17 ways from Sunday in how we’ve treated him. (As it is, only about 6, I think.)
There are no “war crimes” outside the context of a valid, real “war,” which terror attacks by non-state actors are not. KSM and his colleagues are murderers and should be treated as such.
Two points seem to confuse the issue:
(1) Because al-Qaeda lurks in areas with no effective sovereign (the NW Province) or with unrecognized, hostile sovereigns (the Taliban), military force has been necessary to apprehend or, where that’s not possible, kill Qaeda members. If Pakistan wer really sovereign over its claimed territory, we would make the same demand to them as to the Taliban: produce Osama, or face the consequences.
(2) Because KSM posed a continuing national-security threat, we were justified in detaining and interrogating him, though not I think for as long as we did, and certainly not in the manner we did. Provided those interrogations were not used as evidence against him, I can’t imagine the U.S. courts having an issue there.
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November 18, 2009, 3:58 pmPeter Bepler says:
I have found Eric Posner a judicious commentator in the past, but he loses me completely here. His problem is that it appears he can no longer think clearly about the issues– that is, what is a crime appropriately subject to the criminal courts, and what is a violation of the law of war– in short, an atrocity. Prof. Posner’s tortured thinking can be seen in his comment “Endless detention without trial is no longer a politically viable option.” Why? This is presented as a commentary on the legal situation, but it is merely another political opinion. “Endless detention without trial” is what in fact is the fate of a captured combatant under the law of war (“endless” at least in the sense of without defined duration), which only those who now conflate the battlefield and street thuggery are confused about. I would have thought a VC participant would both think and express himself more rigorously. For pure political comment, which is what Prof. Posner’s post is, I can always go elsewhere.
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November 18, 2009, 4:01 pmPeter Bepler says:
Please delete my comment. When I made one simnple correction of a typo, Wordpress rendered it gibberish. I would rather it just disappeared.
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November 18, 2009, 4:07 pmbailey says:
So, the Revolutionary War wasn’t a war? Any number of violent rebellions throughout history aren’t wars? If that’s the best you can do and it somehow reflects the reasoning of the Obama Administration, you are verging on silly.
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November 18, 2009, 4:19 pmyankee says:
If that is what is going on, it is deeply troubling. The government should not be able to pick and choose the applicable rules of procedure depending on how strong its case is. It would be appalling if anyone else were to be sent to a military court simply because the government thought it couldn’t win in civilian court, and we should not set a precedent for that kind of thing.
There should be one consistent system of trials for all of these alleged terrorists, whether it’s civilian courts, courts-martial, or military commissions.
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November 18, 2009, 4:24 pmRichard Aubrey says:
Holder has said that, acquittal or not, KSM stays. So say there’s an acquittal–the jurors get DVDs of Daniel Pearl’s beheading, possibly–and KSM stays. What does that say about our justice system? Or the trial?
In addition, there are about seventy-five guys who due to the Obama team not doing their homework, seem to be too dangerous to let go, and the evidentiary issues preclude a trial. They’re going noplace, and not being tried.
So, Holder, what does that say about American justice?
Fine by me, as it happens, but it does make Holder & Co. look like hypocrites. Still, considering all the talk about Holder and Obama and so forth being thin-skinned, on the hypocrisy charge they seem to have developed substantial callosities.
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November 18, 2009, 4:27 pmbailey says:
What about an organization of criminals, say Hezbollah or Hamas, lobbing rockets into a nation like, say, Israel? They are just groups of anti-social gentlemen, not sovereign nations. Therefore, under the Anderson analysis, only arrest and not return fire are warranted?
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November 18, 2009, 4:29 pmDennis N says:
If KSM and his ilk are tried for murder, then it is arguably a civilian affair, and the civilian court system is appropriate.
If they are tried for war crimes, then a military court is mandated by the Hague convention, which apparently felt that greater justice could be found there than in the politically corrupt (particularly in its time and place) civilian court system.
Releasing KSM is problematic, as we are at war. Since KSM is a wartime enemy, I suppose we could simply release him, and kill him as he walks out the door. “No, Ahmed, you go first.”
The shibboleth of undeclared war is just that. Congress authorized armed action and, moreover, paid for it. There are no magic words necessary to “Declare War.” The ringing speech in front of a Joint Session has been the exception, not the rule.
It is always in Congress’ power to “undeclare” war. All they need to do is to say, “No more money.”
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November 18, 2009, 4:29 pmsgerber says:
Anderson and Mark Field:
How do you reconcile your position with the need to interrogate people like KSM? Would you have read him his Miranda rights, for example?
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November 18, 2009, 4:32 pmMinnesota Skeptic says:
“A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty.” Just what people believe this? The supporters of the terrorists wouldn’t care. They know the defendants are guilty and glory in it. The rest of the populace, so far as I know, haven’t expressed the belief that military courts are kangaroo courts. A few on the far left (and right) may have stated that belief, but since when do we let major decisions be dictated by the opinions of the radical fringe?
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November 18, 2009, 4:32 pmPubliusFL says:
I’m not following you. Explicit war declaration or not, lawful combatants are generally understood to be those who commit belligerent acts and who qualify for POW status under the 3rd Geneva Convention. Unlawful combatants are those who commit belligerent acts but do not qualify for POW status. Entitlement to POW status does not hinge on whether your state, militia group, or resistance movement is explicitly named in an opposing party’s declaration of war.
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November 18, 2009, 4:32 pmNickM says:
How do you find an unbiased jury for this case? Are you required to throw out everyone who is firmly convinced that al-Qaeda is responsible for the attacks? Who hasn’t heard too much pretrial publicity about the case?
Then we get into issues such as who can accept being sequestered for the entire length of the trial (there would be no other way to avoid the publicity during trial) and can afford to be a juror for the entire length of the trial.
And since this is a death-penalty case, we have to further limit the pool to death-qualified jurors.
Nick
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November 18, 2009, 4:33 pmDarth Vader says:
Heh heh heh. Remember that “questioning” session on Hoth, old friend? I bet you wish we Imperials still used waterboarding...but it was not painful enough.
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November 18, 2009, 4:36 pmbob says:
Where have you been for the last 8 years? Don’t you know we are at war?
Actually, I think people in custody need to be tried, proven guilty, and then punished.
There isn’t really any conflict between targeting an enemy on the battlefield and trying people in custody. That’s pretty standard over the past few hundred years.
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November 18, 2009, 4:42 pmDennis N says:
Anderson says:
That is why they are not Lawful Combatants under the Hague Conventions. As far as the HC is concerned, they can be shot out of hand.
Our laws do not permit that. I’m not sure we have a statutory solution to unlawful combatants once they have been captured. Since we consider ourself in a state of war against them, we can hold them as not-prisoners-of-war, or we can kill them in combat, including by targeted killings.
We’ve not done our homework in preparing a legal basis for warfare against non-state actors. We are not willing, at this time, to apply the blind eye to summary executions, as we had occasionally done in the past.
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November 18, 2009, 4:42 pmOren says:
You can’t lump that all together like that. The CSRTs were kangaroo courts (for instance, often retrying a single defendant until they got the result they want, excluding the defendant from knowing the charges against him). Courts martial under the UCMJ, on the other hand, are exemplary.
So those of us that follow the news realize that not all military courts use the same procedural methods and do not, therefore, have the same reliability.
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November 18, 2009, 4:44 pmAnderson says:
How do you reconcile your position with the need to interrogate people like KSM? Would you have read him his Miranda rights, for example?
I addressed that. Security interrogation doesn’t require Mirandizing. And quite obviously, we grabbed KSM in the first place b/c we had evidence he was the 9/11 planner. He admitted as much to al-Jazeera.
Re: Hezbollah/Hamas, they are groups that support and perpetrate terror, and are not subject to arrest by civilian authorities, so military force may be necessary, though perhaps not always politically desirable.
Unlawful combatants are those who commit belligerent acts but do not qualify for POW status.
First, they still qualify for minimal Geneva protections. Second, I am not convinced this applies to top Qaeda figures. We generally hear complaints that they’re not in uniform, but I don’t see how a general who dons mufti and goes into hiding thus becomes an “unlawful combatant,” or even how this Geneva provision is supposed to apply to terrorists.
... Because, y’know, the laws of war are written for wars, not for criminals. They end up not making much sense when you apply them to the latter group.
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November 18, 2009, 4:47 pmRPT says:
Recent history demonstrates that the District Courts and US attorney offices in Alabama are somewhat of a world of their own.
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November 18, 2009, 4:47 pmmrcausality says:
Forgive me if somewhere in the thread this has been discussed, I only did a cursory read through and did not find it.
I am confused as to what constitutional rights are now conferred on KSM. I am not a legal professional, so I would appreciate those more knowledgeable to comment on the ability of the U.S. criminal justice system to conduct a constitutionally fair trial. Are due process and habeas now part of KSM’s portfolio of rights?
Statements by Obama and Holder, among others, have strongly condemned him, and made bold and affirmative proclamations of imminent conviction. This is, to my mind, inappropriate from a due process context. I think back to Mike Naifong of the now infamous Duke rape case. There are several distinctions to be sure, but not so much in terms of the Government’s lack of adherence to due process and presumption of innocence principles that apply (I think) to anyone entering the criminal justice system. As a precedent for captured and suspected terrorists, the criminal justice system appears to being used as an imprecise proxy since the current state of international law is too ambiguous to handle the modern situations that arise from the terror war.
From my limited perspective, this seems like a mistake that opens up a Pandora’s box. If anything, it demands even more urgently some real clarity in international law as it pertains to these cases. It strikes of complete buffoonery to say on the one hand that we will show the world that our system is good, and then make prejudicial and inflammatory statements that cut directly against those very same principles upon which the system purports to value.
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November 18, 2009, 4:48 pmPubliusFL says:
If the biggest problem top AQ figures had was that they were hiding out in mufti, I would agree with you. A bigger issue, though, is their failure to conduct their operations in accordance with the laws and customs of war. Like beheading people and blowing up civilians and stuff.
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November 18, 2009, 4:55 pmRPT says:
As a peripheral participant in the Simpson case, I recognize “Judge Ito Syndrome” when I see it. The Southern District of New York is a different world; certainly different than Alabama as well.
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November 18, 2009, 4:56 pmed says:
Uh, to my knowledge, our war is in Afghanistan. Operations into Pakistan remain plausibly deniable for that reason. It is quite rare to maintain an embassy and multiple consulates in a country with which you are at war. Furthermore, we have use predator strikes in Yemen and other countries far from the “battlefield.”
Basically, your argument is that it is okay to execute suspected terrorists without trial abroad, but if we capture them, we must treat them as we would any other criminal. The problem with that logic is that, again, were it reversed, the WTC is materially no different from a hut in Pakistan.
I do not for one second believe that it is wrong to kill the AQ and Taliban without trial abroad. But to be holier than thou about a trial here, while supporting summary execution of people guilty of far lesser crimes abroad seems to be hypocritical. Calling in a Predator strike on a convoy in Afghanistan can result in more dead innocents for a generally less valuable target than KSM. Trying KSM in civilian court does nothing other than provide masturbation for leftists.
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November 18, 2009, 5:02 pmAnderson says:
A bigger issue, though, is their failure to conduct their operations in accordance with the laws and customs of war. Like beheading people and blowing up civilians and stuff.
I am no Geneva expert, but the requirement re: laws & customs of war applies only to irregulars affilated with the entity you’re at war with. KSM was, I believe, a member of al-Qaeda itself.
But again, the problem is that al-Qaeda can no more be “at war” than the Mafia can, or Timothy McVeigh could’ve been.
We did not make the mistake of saying that terrorists were “at war” with us when they blew up planes or hijacked cruise ships. I don’t think anything material has changed, and I don’t see why we should glorify mass murderers as “soldiers.” I respect soldiers. I don’t respect terrorists.
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November 18, 2009, 5:04 pmFloridan says:
DangerMouse: “What happens if a bunch of libs get on the jury, and refuse to convict him?”
Why would libertarians refuse to convict him? This is an outrageous thing to say! Libertarians may not be wild about the government, but that’s no reason to assert they they would let a terrorist go free.
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November 18, 2009, 5:08 pmAnderson says:
I do not for one second believe that it is wrong to kill the AQ and Taliban without trial abroad.
If our special forces grabbed bin Laden, had him bound and on a plane back to Bagram, and then a soldier shot him in the head and killed him, I do think that would be wrong.
Predator strikes are legally iffy, I think, but justified ultimately because, as Jane Mayer’s article on them concluded, we have no better alternatives for terrorists in unthinkably remote areas.
The pirate analogy works pretty well re: terrorists, except that in the 1700s, there were obstacles to bringing in pirates for trial that rarely arise today. If the same special-forces team had bin Laden but was in danger of being overrun by Qaeda members, then I would concede the legitimacy of killing him to prevent his escape, given the threat he would pose.
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November 18, 2009, 5:13 pmAnderson says:
Funny, Floridan.
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November 18, 2009, 5:13 pmbob says:
You’re a hoot. If by “plausibly deniable” you mean “confirmed, widespread, documented and undeniable” then you’re right.
Not at all. The military follows targeting protocols on the battlefield. War is heck.
On this issue, I would wager that there is a pretty good correlation between households that regularly view Fox news and those that purchase Jergens and Kleenex.
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November 18, 2009, 5:18 pmbailey says:
“A state of open, armed, often prolonged conflict carried on between nations, states, or parties”-this is the dictionary definition of war, admittedly different from the Anderson definition. It certainly doesn’t limit it to nation to nation conflict. If your definition of war isn’t correct, why would any theory that flows from it withstand analysis.
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November 18, 2009, 5:21 pmDoc Merlin says:
Would the fact that KSM was waterboarded increase the possibility of an innocent verdict on appeal? Or does the administration acknowledge that KSM doesn’t want an innocent verdict?
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November 18, 2009, 5:30 pmPLR says:
Appeals don’t produce innocent verdicts. But it may increase the amount of heat on Holder to prosecute people who committed or conspired to commit torture.
Doh!
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November 18, 2009, 5:41 pmAnderson says:
Even under Bailey’s definition, al-Qaeda would still qualify for Common Article 3, as held in Hamdan, which provides:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(d) does not require a civilian court, of course, but it does establish that summary executions aren’t allowed — indeed, under *any* circumstances, which is more than I had thought to prohibit.
If we’re going to treat al-Qaeda as anything more than common criminals — which I continue to think a policy mistake, and perhaps a legal one — then I think piracy, not war, is the better legal path to take. The Geneva Conventions simply were not written with terrorism particularly in mind, whereas piracy is a much closer fit.
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November 18, 2009, 5:42 pmOren says:
Weren’t a number of Caribbean pirates shipped to the Admiralty Court in Port Royale to be charged and hung in accordance with English Law?
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November 18, 2009, 5:46 pmOldSarg says:
My concern is that by offering a trial for KSM in civilian court you have just offered him more rights than those we afford to our military personnel. It just doesn’t seem right.
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November 18, 2009, 5:49 pmAnderson says:
This, from the commentary to CA3, is interesting. Discussing a draft of CA3:
Indeed.
And this part addresses some oft-heard complaints:
It’s a “Convention in miniature,” as they put it, and it doesn’t depend on how al-Qaeda treats us.
What Government, indeed.
Works for me.
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November 18, 2009, 5:50 pmSG says:
But again, the problem is that al-Qaeda can no more be “at war” than the Mafia can, or Timothy McVeigh could’ve been.
You can assert this all you like, but Congress has spoken on the issue and they didn’t agree with you. Congress overwhelmingly authorized the use of military force against the perpetrators of 9/11 — they didn’t against the Mafia or Timothy McVeigh.
I’m not aware of any functional difference between the AUMF and a declaration of war (and if you are, I’d appreciate being informed of the difference), so taking the AUMF as a legal declaration of war — on what grounds do you ignore the current law of the land? Also, why are you willing to violate our Geneva Obligations to these prisoners not to subject them to a civilian trial for their alleged unlawful combat activities?
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November 18, 2009, 5:51 pmPLR says:
Might want to read that Fifth Amendment again on that point.
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November 18, 2009, 5:54 pmAnderson says:
You can assert this all you like, but Congress has spoken on the issue and they didn’t agree with you. Congress overwhelmingly authorized the use of military force against the perpetrators of 9/11 — they didn’t against the Mafia or Timothy McVeigh.
I didn’t say we couldn’t use military force; I said that al-Qaeda couldn’t declare war on us. 9/11 precedes the AUMF, and I am not convinced that using military force on, say, Somali pirates, makes us “at war” with those pirates.
Also, why are you willing to violate our Geneva Obligations to these prisoners not to subject them to a civilian trial for their alleged unlawful combat activities?
Beeeeeecause I don’t think we’re at war with al-Qaeda, and thus they aren’t POW’s.
The Hamdi plurality was I believe mistaken in simply assuming a state of war, but perhaps that issue was not properly placed before the Court.
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November 18, 2009, 6:05 pmOren says:
Is it your position that Congress could, consistent with the Constitution (and Ex Parte Milligan), declare war on McVeigh and his associates?
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November 18, 2009, 6:11 pmJohn Moore says:
The following comes up when looking for a rational basis for this decision:
1) KSM will not be released even if found not guilty
2) KSM will be afforded a trial as if he had committed his (war) crimes on US territory, which he did not
3) KSM will have full discovery rights.
So... it is clearly a show trial, because if found not guilty, he will still be released.
A) Is having a show trial that will fool anyone a rational reason? Hardly.
B) The discovery rights will lead to more public disclosure of the capture, detention and interrogation methods under Bush — specifically the harsh methods in effect shortly after 9–11.
Is disclosing these methods a rational reason? Yes — if you want an indirect way of attacking the former Bush administration.
QED: Andrew McCarthy is right — the purpose of these trials is to attack former Bushies, paying off Obama’s left.
C) Or... it may just be that the Obama Administration is dumb as a bag of rocks.
I vote of C and B.
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November 18, 2009, 6:16 pmJohn Moore says:
It is irrelevant to bring the McVeigh situation into this. McVeigh was a US citizen who carried out his acts on US soil. He was thus a terrorist, but had the right to a civilian trial.
Does anyone seriously assert that KSM has a right to a civilian trial?
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November 18, 2009, 6:19 pmFrank Drackman says:
All it’ll take is one Nadal Hasan on the Jury to let KSM do an OJ and walk...
But thats cool, and all we have to do is wait 10 years till KSM trys to steal some of his 9–11 memorabilia back...as long as it happens in Nevada
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November 18, 2009, 6:25 pmAnderson says:
When McVeigh went on trial, were we particularly concerned he would be acquitted?
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November 18, 2009, 6:32 pmDan M. says:
Why would people believe that all people convicted are guilty when the only ones who get into civilian courts are the ones that we have strong evidence against? If we make subjective decisions about bringing stronger cases to civilian courts and keeping weaker cases in military courts, that completely undermines the credibility of EVERY conviction in the military court.
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November 18, 2009, 6:35 pmPubliusFL says:
The requirement applies to anyone claiming POW status.
I think it’s certainly easier to conceive of “war” with terrorists when they’re state-sponsored or sheltered, and the sponsoring or sheltering state is also a party to the war. We invaded Afghanistan when it was controlled by the Taliban, which sheltered Al Qaeda in its territory. You don’t have to respect terrorists that don’t ACT like soldiers. Again, the key is whether they conduct themselves honorably, in accordance with the rules of war. Soldiers do, unlawful combatants don’t.
Or to London, or Boston, or Halifax. Captain Kidd, like a number of other pirates, was hanged at Execution Dock on the Thames. Pirates were often tried after their capture.
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November 18, 2009, 6:42 pmB.D. says:
Morris Davis’s interesting piece, which was written before Holder’s announcement: http://online.wsj.com/article/SB10001424052748704402404574525581723576284.html
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November 18, 2009, 6:47 pmAndrew J. Lazarus says:
Two points. First, I don’t see anything in the Third Geneva Convention that requires KSM to face a military tribunal, insofar as pre-existing American law made a member of the US Armed Forces triable in civilian court for murder, hijacking, etc. (Article 84) AFAIK, an American soldier who hijacked a civilian airliner could be tried in civilian court, so whatever problems there are with Holder’s plan, violating the GC is not one of them.
Second, as two of the defendants in Quirin were US Citizens, John Moore’s argument needs something more than he has offered.
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November 18, 2009, 6:54 pmSG says:
Is it your position that Congress could, consistent with the Constitution (and Ex Parte Milligan), declare war on McVeigh and his associates?
Congress could certainly declare war on them, although what rights they would have if captured would be constrained by the fact that they were citizens presumably captured on US soil with functioning courts.
What bothers me, aside from the fact that I think the precedents set by giving KSM and other a civilian trial will rebound to detriment of the citizenry in normal criminal proceedings, is that this we had this debate in 2001 and the results weren’t even close. We had treated Islamic terrorism as a criminal matter up to that point (and done well all things considered), but after 9/11 happened it was overwhelmingly decided that the criminal justice system was the wrong response to this exact threat posed by this exact person. Now 8 years have passed and the perception of the threat has receded (or it was never that large to begin with). That’s fine — good even. But if that’s the current perception is this is no longer a matter for the military then lets go back to peacetime. This is attempting to normalize a state of war. I can’t believe some people are actually defending the government’s apparent plan to shop jurisdictions (if we’ve got a strong case, we go to Article III courts; if it’s a weak case we got UCMJ courts). This isn’t the rule of law; it’s a bad joke.
That’s assuming good faith on the part of Obama and Holder. If this is being done in bad faith in an effort to vicariously place the Bush Administration on trial, it’s actively repulsive. So far, I think the preponderance of evidence is that this is being done in bad faith, but I simply don’t wish to believe that.
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November 18, 2009, 6:58 pmSG says:
AFAIK, an American soldier who hijacked a civilian airliner could be tried in civilian court
I don’t know enough about the UCMJ to have an opinion, but note that KSM didn’t hijack any airliners or commit murder in the US. Instead, while in another country, he planned an operation that our Congress has declared to be an act of war. Do we claim universal jurisdiction for our criminal code?
But let’s assume his actions were a crime: can a soldier who committed a crime oversees be tried before a domestic civilian court? Again, I don’t know enough about the UCMJ to have an opinion, but it’s not immediately obvious to me that a civilian trial for KSM passes muster under Article 84.
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November 18, 2009, 7:08 pmAnderson says:
The requirement applies to anyone claiming POW status.
That does not seem correct. See GC III, art. 4. There are 6 categories of POW, and the “laws and customs of war” bit applies only to (2) and (6).
I am not sure whether al-Qaeda members qualify under (1) because it says “Members of the armed forces of a Party to the conflict” and I am unclear whether “Party” here means a signatory to the GC — they seem usually to say “High Contracting Party” for those. Again, the fuzziness of a criminal organization’s being deemed able to “wage war” makes the GC difficult to interpret.
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November 18, 2009, 7:09 pmPerseus says:
Shhh. Karl Rove and the rest of us in the vast right-wing conspiracy are working to ensure that he’s acquitted, which will end the political career of the president.
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November 18, 2009, 7:12 pmJohn Moore says:
Laz says:
Huh? Care to explain?
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November 18, 2009, 7:18 pmAnderson says:
On inspecting the commentaries to Common Article 2, it appears that “Party” = “High Contracting Party.”
Thus, Taliban would be POW’s under (1), but not al-Qaeda members, *unless* they were “members of militias or volunteer corps forming part of” the Taliban, which is an interesting question.
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November 18, 2009, 7:22 pmAnderson says:
Huh? Care to explain?
You said U.S. citizens who “carried out acts” on U.S. soil were entitled to a civilian trial, but that was not afforded the U.S. citizens in Quirin, was what I took that to mean.
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November 18, 2009, 7:25 pmJohn Moore says:
Ah — Quinn:
That does not describe McVeigh, hence I fail to see the relevance.
As to whether Quinn was properly decided, I’ll take the IANAL out.
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November 18, 2009, 7:35 pmSarcastro says:
[Considering the lack of evidence of what Obama et. al. are thinking, I think you’ve made up your mind already, wishes bedamned.]
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November 18, 2009, 7:36 pmMark Field says:
As Anderson has already pointed out, there’s no need to consider these issues when we interrogate him for information.
Now, when it comes to due process (which applies under the 5th A to all “persons”, thus including foreigners), the Court has held that it’s a flexible term which basically requires “fundamental fairness”. So no, you don’t need to read him his Miranda rights. But you can’t torture him to get a confession.
Yes. As I pointed out above, due process is expressly required for all persons. Habeas rights have been given to non-citizens since pretty much day 1 of the Constitution.
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November 18, 2009, 7:57 pmHerb Spencer says:
And were just as often executed at sea when caught in the act, which, unlike being shot by a soldier while being taken elsewhere, remains permissible as in flagrante delicto: difficulties in XVIII century transportation modes had nothing to do with it. Whenever the decision is made not to kill a pirate or terrorist caught in the act, however ongoing, then for better or worse the delay obliges the captor to extend some due process to the prisoner. The wisdom of that approach — and its future application — can and should be debated, but as our legal day care centers get ready to close on the left coast, the messy claim that a court martial or military tribunal is unable to administer justice as well as one of its civilian sisters has been cleaned up and closed down.
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November 18, 2009, 8:01 pmRPT says:
There is nothing that demonstrates liberal bad faith more convincingly than Holder’s seeking the death penalty in the criminal prosecution of a Muslim terrorist in New York City before a jury of people adversely affected by his crimes, instead of leaving him in non-tortured comfort in the Cuban beach resort. Now if we could only get the “dream team” of Mary Jo White, Andrew McCarthy and Rudy Guiliani out of retirement to prosecute the case, assuming, of course, that they could handle the job.
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November 18, 2009, 8:14 pmAnderson says:
There is nothing that demonstrates liberal bad faith more convincingly than Holder’s seeking the death penalty in the criminal prosecution of a Muslim terrorist in New York City before a jury of people adversely affected by his crimes, instead of leaving him in non-tortured comfort in the Cuban beach resort.
This is, like, self-refuting. “Bad faith” indeed.
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November 18, 2009, 8:22 pmTim says:
Do the Hague Conventions define lawful belligerents?
You might be onto something. The best definition I had prior to you bringing this up was from Ex Parte Quirin, in which the opinion reads:
The definition of who is an “unprotected person” under the Fourth Geneva Convention (the third applies to prisoners of war) is in Article 5. It reads:
I suspect that there is at least one U.S. case quoting the “fair and regular trial” requirement, as well.
Might make for an interesting topic of an entire blog post.
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November 18, 2009, 8:40 pmRichard Aubrey says:
Obama has remarked, I believe in China, that people are not going to be offended when KSM is convicted and executed. Seems as if a trial is hardly necessary, unless we want to have a flaky cover for a predetermined outcome.
Which does not demonstrate the values of the American justice system Holder read about someplace.
Hell’s bells. New Orleans has a huge number of unprosecuted and unprosecutable murders due solely to the fear of witnesses that they will be killed by the two-bit thugs who did the deed. Same thing’s been reported in Detroit.
New York has had to take special care to prosecute mob trials for the same reason and neither the two-bit thugs nor the mobs are as organized as the jihadists, with more potential volunteers not now on the radar.
One of the Ft. Hood shooter’s co-congregants said stoutly that he would never say a bad thing about a man who did exactly what he was supposed to be doing.
Can we exclude Muslims from the jury on the grounds that one or two might have this in mind, facts be damned?
See, thing is, if that happens and the exection which Obama confidently predicted happens, or the indefinite detention happens, where is the apparent wonderfulness of our justice system?
Now, I’m willing to believe that Obama and Holder are dumb enough to have pulled this off on the grounds that everything will go well. I really think they have been so involved in petty corruption and machine politics that their intelligence, to the extent it exists, has atrophied to an extent only capable of dealing with small, immediate issues and larger issues, including uninteded consequences escape them.
Or, they could be planning for one or more of the negative consequences.
Or there could be nothing but positive consequences possible. I hadn’t considered that.
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November 18, 2009, 8:46 pmOren says:
No. He has the right to fundamental fairness, nothing more.
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November 18, 2009, 8:51 pmRPT says:
Mr. Anderson (as Prof. Kingsfield would say):
I have been around here long enough (and taken enough anonymous rhetorical abuse) that I though it unnecessary to post the “sarcasm” alert for this one.
My point is that the only way that Holder could demonstrate that he is tough enough for the critics is (1) revoke the Marc Rich pardon and try him for terrorist crimes, (2) declare Major Hasan an “enemy combatant” and throw him in Bagram prison, and (3) give out special military commissions in the rank of Major General (attention, SV, Gilbert & Sullivan reference) to John Yoo, David Addington, Liz Cheney and Gov. Palin and appoint them as JAG special prosecutors in a military commission trial with each side getting 10 hours to put on their case, no appeals, and Thomas More’s executioner sitting inside the courtroom.
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November 18, 2009, 8:52 pmSG says:
[Considering the lack of evidence of what Obama et. al. are thinking, I think you’ve made up your mind already, wishes bedamned.]
Believe what you want. I have no insight into what they’re thinking — I can only look at the actions. If they were to declare that every person captured deserves their day in an Article III court, I might disagree with the reasoning but I could see the (IMO misguided) principle that they were trying to uphold.
But that’s not what they’re doing — they’re cherry picking which prisoners go to public trial and which ones face military commissions. So, I’m left to wonder why they would pick KSM, someone who previously said he would plead guilty to a military commission, to bring to open court. This is not being done in the interests of justice — justice could have been easily served under the same process that they are willing to subject others to. They’ve actively chosen this venue for this prisoner. I honestly can’t conceive of a good faith reason for KSM in particular to be brought to open court given that they have accepted the legitimacy of military commissions. It’s even more troubling since trying KSM in open court undermines the legitimacy of those same military commissions that they are using with other prisoners.
Do you have a good faith interpretation of the actions to date? Holder’s testimony today didn’t provide one.
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November 18, 2009, 8:55 pmAnderson says:
Ah so, RPT. I plead battle fatigue!
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November 18, 2009, 9:06 pmepignosis says:
Someone help me here. What federal law is broken if he conspired to have others fly planes into buildings in USA? I am, naively perhaps, thinking that federal courts lack jurisdiction over those acts of conspiracy.
Maybe I was wrong to suspect that what Holder is putting on trial is Bush’s war on terror and the tactics used therein.
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November 18, 2009, 9:11 pmRHSwan says:
Anderson,
The part of Common Article III you did not quote,
states “not of an international character”.
We have fought al-Qaeda on at least 3 countries. How is that not international in character?
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November 18, 2009, 9:16 pmAnderson says:
I am, naively perhaps, thinking that federal courts lack jurisdiction over those acts of conspiracy.
Terrorism is a federal crime, and I’m pretty sure that material support includes planning the crime.
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November 18, 2009, 9:19 pmAnderson says:
RHS, tell it to the Hamdan majority.
“International” means “between two countries,” they said.
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being ” ‘international in scope,’ ” does not qualify as a ” ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.
... Re: KSM, the terrorism statute seems to provide only for a life sentence for conspiracy; I’m sure there are other statutes applicable that I’m simply unaware of.
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November 18, 2009, 9:23 pmepignosis says:
Mr. Anderson
Now you have me thinking. So someone in France could falsely claim that I helped them plan a terrorist act against a building in France. France could ask that I be extradited for trial?
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November 18, 2009, 9:32 pmAnderson says:
Well, yes, if people make false claims about you, you can get into all sorts of trouble.
Presumably France would not seek to extradite, and the U.S. would not agree, if there were not convincing evidence. So good luck!
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November 18, 2009, 9:36 pmepignosis says:
Mr. Anderson,
Apparently it is not luck that I need, but education.
Regards.
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November 18, 2009, 9:38 pmSarcastro says:
Yes, Obama wanting to take out Bush et. al. (after refusing to directly prosecute them) is the only reasonable explanation for such an action! Pressure from the left and the OP do not count as good reasons, I guess.
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November 18, 2009, 9:40 pmA. Zarkov says:
It seems like this whole thing is more like a show trial than a fair trial as there is nearly uniform agreement that KSM will be found guilty, or if not, something else will happen to guarantee that he does not go free. I don’t find it surprising that Obama and his crew like show trials given their background and ideology.
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November 18, 2009, 10:02 pmAnderson says:
Zarkov, how would a military comm’n not have been a “show trial” re: KSM?
And people who adore Bush’s use of NKVD methods for extorting confessions should shut the hell up about “Obama and his crew like show trials given their background and ideology.”
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November 18, 2009, 10:12 pmA. Zarkov says:
Who said anything about a military commissions?
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November 18, 2009, 10:51 pmA. Zarkov says:
From Breitbart News:
So Obama tells us not to worry– he will be convicted.
From Wikpedia on show trials.
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November 18, 2009, 11:02 pmreadery says:
I don’t understand how admitting actually or perceivedly dangerous individuals into the country complies with the President’s duty to defend the country’s borders. Moreover, by admitting them the President creates the possibility of violating their rights. Admission into the country is much easier to undo than birth, but it still has serious consequences, including creating rights nonexistent on the other side of the boundary.
The suffering of those with rights has legal consequence in a way that the suffering of those without does not.
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November 18, 2009, 11:03 pmBenP says:
....It does kind of beg the question that there is some sort of alternative. Seeing the ruckus here when Obama just decides that an already existing court can do the trial rather than some specially created tribunal I can only imagine the outcry if he were to suggest that KSM would be released.
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November 18, 2009, 11:04 pmBenP says:
But does that still suggest that secret trials are better?
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November 18, 2009, 11:06 pmMark Field says:
Like Adolf Eichmann or Manuel Noriega?
Such as?
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November 18, 2009, 11:29 pmRicardo says:
Indeed it does not. For instance, Pancho Villa mounted a cross-border raid into American territory in which several American civilians and soldiers died (supposedly Villa was after arms and supplies). In the aftermath, Villa and his associates were indicted for murder before a Luna County grand jury in the state of New Mexico. At the same time, General John J. Pershing was ordered to command an expeditionary force to invade northern Mexico in order to apprehend Villa so that he could be tried in civilian court.
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November 18, 2009, 11:54 pmKilo says:
Two things strike me about this discussion.
1. Holder’s decision is inherently political, not legal, and should be evaluated in that light. One could posit good or bad motives, but they are political in either case.
2. AQ as it is constituted (and discussed above) exists. It seems likely this or similar organizations may be around for a long time. We need a way to effectively deal with them.
If our current laws and treaties do not provide the tools we need to win against such an enemy, we need new or revised laws, not better jumping-through-hoop skills. It is beyond foolish to say that we can’t effectively defend ourselves because the current situation was not exactly anticipated.
This is particularly true in that we know that many of our adversaries have explicitly adopted a “lawfare” strategy of using our laws and treaties to cripple us.
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November 18, 2009, 11:55 pmRicardo says:
Zarkov, there’s this thing called “trial by jury” that the English invented exactly to avoid show trials.
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November 18, 2009, 11:58 pmA. Zarkov says:
It’s true that it’s harder to conduct a show trial here than in Europe with its system of inquisitional justice, but it’s not impossible. Suppose the government is willing to forgo capital punishment for a bench trial. Let’s face it, the guy’s already confessed.
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November 19, 2009, 12:21 amTGGP says:
Sounds like Posner agrees with Glenn Greenwald.
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November 19, 2009, 12:28 amRicardo says:
Huh? Trial by jury is a constitutional right for any sufficiently serious offense (I believe for any felony or any offense for which the maximum punishment is more than 6 months in jail — lawyers please correct me if I’m off). KSM only gets a bench trial if he asks for one and both the DOJ and the federal court sign off on it. Indeed, the evidence against KSM is so overwhelming it is hard to imagine any verdict other than guilty. That’s the way trials work: we generally do not doubt the outcome in cases where there is a confession or the evidence is overwhelming. That’s why your suggestion that this is nothing more than a “show trial” is so bizarre.
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November 19, 2009, 12:38 amLeo Marvin says:
Zarkov’s suspicion is based on Obama assuring his critics they’ll be satisfied when KSM is convicted and executed, “when” indicating the result is pre-ordained. Of course every time I rolled my eyes back as a kid my mother assured me I’d be sorry when they stayed that way. I guess she had the fix in too, though something obviously went wrong with her nefarious plan.
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November 19, 2009, 12:59 amMichael Drew says:
The statement you cite doesn’t appear in the link you provide, just fyi. (I don’t doubt its accuracy.)
The fact that Holder is saying practical considerations governed the decision of where to try this particular case does not amount to an admission (your charge may nevertheless be true, of course) that they will govern all decisions about the fora in which to prosecute terrorists. There may be compelling legal reasons to try particular suspects in one forum or the other in particular outstanding or future cases, and I see no reason to assume in all cases that those won’t govern the decision, at least up to (and perhaps in some cases even beyond, as I’ll discuss infra) the point where the government fears acquittal of a dangerous person in one of the fora.
Take, for example, the case of a U.S. citizen whom the president finds to be an unlawful enemy combatant. I personally would hope that such a person’s status as U.S. citizen would entitle him to the presumption of a U.S. civil jury trial (for treason, perhaps as well terrorism), even if under the practical considerations that might normally be applied the AG would tend to opt for a military commission.
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November 19, 2009, 12:59 amThe Watcher says:
The Watcher recalls two things:
1. Lynne Feltham Stewart
2. There is a reason al-qaeda stopped using cell phones...what was that? Hmmmm
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November 19, 2009, 1:06 amA. Zarkov says:
That’s true. Now what might cause him to ask for one?
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November 19, 2009, 1:07 amA. Zarkov says:
That’s exactly what the Europeans, especially Eastern Europeans might think. After all they are more used to the idea of a show trial. Obama should have kept his mouth shut.
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November 19, 2009, 1:10 amA. Zarkov says:
Suppose that US citizen has dual citizenship and goes off and joins AQ. Can he now be treated as an illegal combatant and tried by a military tribunal?
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November 19, 2009, 1:14 amTim says:
It already happened in Ex Parte Quirin. One of the defendants claimed to be an American citizen, and their crime occurred on U.S. soil. They were all tried and executed by military commission.
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November 19, 2009, 2:20 amTweets that mention The Volokh Conspiracy » Blog Archive » Why Has Holder Decided to Try Khalid Sheikh Mohammed in a Civilian Court? -- Topsy.com says:
[...] This post was mentioned on Twitter by PostRank – Law and Brian Hawkins, Michael D. Baker. Michael D. Baker said: Try Khalid Sheikh Mohammed in civilian court? High-quality civilian tier vs. low-quality military depends on evidence http://bit.ly/1ENQFd [...]
Ricardo says:
So if KSM requests a bench trial and the DOJ and presiding judge both sign on, it will be just like a Stalinesque show trial out of the 1930s. And I suppose if KSM just pleads guilty, it will be as if the U.S. denied him a trial outright (I don’t know, maybe some fascist comparison is in order here to mix things up). Unassailable logic, I have to say. I understand you might just be trying to explain the impression created by our criminal processes in the eyes of others. But such base, crude and hackneyed propaganda ought to be shown the respect it deserves.
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November 19, 2009, 4:44 amA. Zarkov says:
In those days the US did not recognize dual citizenship. An American could lose his citizenship by serving in the arm forces or voting in another country. US passports carried such a warning. I suspect the the US did not regard any of the saboteurs in Ex Parte Quirin as American citizens.
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November 19, 2009, 6:22 amno relation says:
But see Montoya v. U.S., 180 U.S. 261, 266–67 (1901) (“Whether a collection of marauders shall be treated as a ‘band’ whose depredations are not covered by the act may depend, not so much upon the numbers of those engaged in the raid, as upon the fact whether their depredations are part of a hostile demonstration against the government or settlers in general, or are for the purpose of individual plunder. If their hostile acts are directed against the government or against all settlers with whom they come in contact, it is evidence of an act of war. . . . We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch a military force for their subjugation, is sufficient to constitute a state of war.”).
Does too.
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November 19, 2009, 6:24 amAvisaMe says:
.
Unconvincing. Discriminating against defendants depending on the strength of the case against them will undermine the credibility of both tiers of the system as well as the system as a whole.
If individuals against whom a strong case exists are given a civilian trial with greater procedural rights, a fortiori those against whom evidence is weak should be entitled to such protections. Otherwise, the greater procedural protections are only being made available when they are deemed unnecessary since it is considered that those individuals are bound to be convicted. The hypocrisy of such a system will rightly lead to it being seen as a sham.
The two-tier system will be criticized as a vehicle for show trials: the government is not in fact willing to release individuals who could conceivably be acquitted for lack of evidence. In fact, it will not even try them in the civilian court system.
There is no basis for affording wartime detainees the constitutional procedural safeguards designed to protect members of the polity from abuses of state power. The policy concerns in the ordinary domestic context underlying principles such as the exclusionary rule, disallowing coerced confessions, and other restrictions on use of evidence, etc. are either not present at all or to a lesser degree. If you argue that those policy concerns should apply in the case of captured detainees who are clearly guilty, then they should certainly and especially apply to those who are less clearly guilty. The precedent set by granting such rights will do long-time damage to the ability to conduct the war on terror. The hypocrisy of not granting them in all but the most egregious cases undermines the “rule of law” which the whole system would be intended to uphold.
I do not see how such a perverse form of discriminatory treatment where the extent of rights provided is inversely proportional to (provable) guilt can possibly enhance the credibility of the system.
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November 19, 2009, 6:54 amdave from woodstock says:
This post is so seemingly naive it is hard to know what to say.
Do you really believe that political appointees like Eric Holder always act rationally and without political motives? Do you think that the prospect of putting Bush Administration practices on trial was not part of the calculus?
Ironic question: if KSM is acquitted, or there is another terror attack (heaven forbid) related to the trials, should Holder be investigated and perhaps prosecuted by the next AG?
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November 19, 2009, 7:48 amRichard Aubrey says:
Obama said “When”, proving the fix is in.
Or we can say to the world that Obama’s mouth gets ahead of his brain and, although the fix is in, he shouldn’t have let on.
Or we can say to the world that he meant “if”, since Obama’s known for not saying what he means.
Two problems: One is if KSM is acquitted. The fabulous American justice system supposedly on display here is going to let him go???? Nope. Holder and Obama have said KSM stays, no matter what. So how does this display the wonderfulness of the vaunted American system.
Hell, if he’s acquitted, what happens to Obama’s promise that he’ll be executed? Is he still executed?
Now, I know there are those who would short themselves into a nasal hemorrhage at the thought KSM will be acquitted, but I would remind them that obviously guilty defendants do get acquitted from time to time.
We have meathead juries–see OJ. We have prosecutorial misconduct, see Bill Ayers. We have Angela Davis–what was the reason there? “Guilty as sin, free as a bird, ain’t America wonderful.” quoth one of David Horowitz’ lefty buddies.
Now, suppose KSM is convicted. Who would believe it was a legitimate trial? After all, Obama announced the verdict beforehand.
There is no way this dog’s breakfast is going to showcase American justice. Obama and Holder have seen to that.
Now, we can all clap our hands and close our eyes really, really tight and BELIEVE these two clowns really, really meant to show off America’s justice system. But those who do that are as dumb as Holder and Obama if that’s what Holder and Obama think they’re doing.
Or we can decide that showcasing American justice and its admirable qualities is the last thing on their minds and drop any legal parsing, historical precedent, and simply look at the political issues this will impact, there being nothing else in their calculations.
Plus take all precautions about being called to jury duty.
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November 19, 2009, 8:24 amOren says:
I think KSM is perfectly docile in shackles, no matter how dangerous he was when loose.
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November 19, 2009, 10:00 amRichard Aubrey says:
Oren.
Could you say the same about Lynn Stewart’s notorious client?
Yeah, I suppose you would.
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November 19, 2009, 10:17 amMark Field says:
Agreed.
Nobody is claiming that it’s required. Personally, I think it’s a good idea, but the only entitlement the detainees have is to basic due process.
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November 19, 2009, 10:20 amRedlands says:
I have absolute faith in our government to make the right call on any two-tiered system it deems appropriate to establish and implement.
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November 19, 2009, 10:21 amRoland Jensen says:
Obviously Khalid Sheikh is not in his senses to appear in court without a lawyer. If the case is just simple, if you don’t need expert witnesses, it’s basically oral testimony and documents that you have available, and a modest amount of money is at stake, then it often makes sense for people to represent themselves. The fact that his case is terrorism, that’s far more complicated because the US security is on the line.
I hope you can visit Varrasso Legal to know more about legal issues and what its worth.
Cheers,
Roland
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November 19, 2009, 10:25 amSG says:
Obama wanting to take out Bush et. al. (after refusing to directly prosecute them) is the only reasonable explanation for such an action! Pressure from the left and the OP do not count as good reasons, I guess.
The pressure from the left is to take out Bush. Pressure from the left is what’s caused Obama to waver on Afghanistan and go to war against Fox News. The left certainly has enemies, but they tend to have an (R) after their name. Even if you were to assume that the left cared about these prisoners’ rights directly (as opposed to finding them useful as a political cudgel), that wouldn’t support the cherry picking of venue — in that case every prisoner should get their day in open court. Since that’s not what’s happening, this claim doesn’t hold.
And as far as the original post goes, frankly it’s stupid and I’m giving Obama and Holder the benefit of the doubt that they are not stupid. Having a two-tier system undermines the legitimacy of both tiers. The military commissions ultimately must provide sufficient process for their decisions to be credible. If they do, then there’s no reason to have a second-tier. If they don’t, then cherry picking between the two-tiers renders the overall process illegitimate, even for people subjected to the higher-tier because we always retained the option of putting them through the lower-tier (“Damned if you do, damned if you don’t” does not meet my notion of a fair process). Nor do I accept the notion that the military commissions are ipso facto lower quality. I have no personal knowledge, but everything I’ve read says if you’re a defendant, the UCMJ is better if you’re actually innocent, Article III courts are preferred if you’re guilty.(*) The two systems have differences, but one is not clearly higher-tiered relative to the other and both provide sufficient due process.
So no, I don’t count either of those as good reasons. Do you have any others? Seriously, I don’t like thinking that the Obama Administration is using the 9/11 organizer as a political football, but I really can only come up with that or they’re stupid.
(*)As an aside, if this is true it even further calls into question the wisdom of putting KSM in front of an Article III court.
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November 19, 2009, 10:33 amRichard Aubrey says:
Working on this quote business.
I agree. The fun thing would be to rhetorically force somebody to pick one or the other and defend it.
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November 19, 2009, 10:49 amSteve W from Ford says:
Does it really matter whether “torture” was used to get a confession or to gather info re future attacks? Isn’t the relevant issue that the President of the US and his attorney general have both admitted that the US “tortured” KSM and others, and that additionally the authorities, with all the power of the US Government and military behind them, threatened to kill, at least, KSM’s family if he did not provide the info they wanted?
Can anyone imagine a criminal murder defendant NOT getting off with this set of facts on their side? Seems to me that any defense lawyer would claim that ANY confession or admission made during the course of KSM being held was not true and was made solely to either save his innocent family or to keep himself from further “torture”. Wouldn’t any competent counsel spend A LOT of time on ALL the gory details of the “torture” and detainment and threats and the people who carried them out and where and why and how this all fits into a conspiracy by the government? How could any judge not allow this when “torture” is already on the record and from the highest authority?
Seems obvious to me that this can easily be a “circus” and likely will be even without the judge losing control.
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November 19, 2009, 11:21 amjr565 says:
The Geneva Conventions allow people to be held in confinement for the duration of hostilities without trials. Are you against such confinement?
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November 19, 2009, 11:27 amjr565 says:
At Nuremberg nazis were tried using military tribunals not courts and afterwards many were summarily executed.
Also, in WWII nazi saboteurs were tried using military tribunals and were then summarily executed. And the presidents authority was upheld by the Supreme Court (just as Lincoln’s authority was upheld when HE tried saboteurs using military tribunals).
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November 19, 2009, 11:33 amRichard Aubrey says:
565
The GC doesn’t allow “people” to be detained. It is the subset of “people” the detaining authority can reasonably assert fall into one or another category. And some categories can’t be held indefinitely.
Which category KSM and his merry band fall into has been the subject of much self-refuting discussion, mostly designed to give the Bush administration the maximum legal and political trouble.
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November 19, 2009, 11:40 amJohn Moore says:
Except, based on my quick look at Quirin, that this was not a factor.
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November 19, 2009, 11:56 amKen Royall says:
This is a war, KSM and others like him are enemy combatants. There are many good reasons why in the past we did not extend Constitutional rights to enemy combatants and I have seen nothing that would indicate we should change that now. There is nothing in it for us and this entire notion seems to come from buying into the liberal meme that America needs to “prove” to the world we are a just nation. I know we are, and trying KSM in civilian court will not change the minds of left wingers the world over either way.
Obama and Holder have already made a mockery of the entire process by saying in advance that KSM will be convicted and killed. Any hope that this was going to be seen as a “fair trial” went out the window with that nonsense. The moron Lindsey Graham was right, how in the hell are the soldiers on the battlefield going to conduct the war knowing they may get hauled into civilian court? In addition, re-opening the wound in NYC for would could take years will be horrible for national morale. Since when do we let the hand wringers run the show?
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November 19, 2009, 11:58 amRichard Aubrey says:
Ken Royall.
The handwringers have been at it for some time.
Fortunately, Bush was able to keep a lid on them.
Now....
If the trial only results in morale damage, we’ll be lucky.
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November 19, 2009, 12:13 pmHarold says:
When I first enlisted in the Navy, I was told that if you really are innocent, demand a court martial. If you’re not, take your lumps at non-judicial punishment. Having watched the system work for 21 years of service, it works that way. Courts martial are far more fair than civilian jury trials. And the punishment for the guilty often harder.
Military trials are the only proper place to try terrorists.
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November 19, 2009, 12:22 pmSG says:
The fun thing would be to rhetorically force somebody to pick one or the other and defend it.
What I really want is for someone to articulate a reasonable case for option 3 — this is being done in the best interests of the nation.
I can’t see an argument for option 3 (and I’m looking for it), but I acknowledge that vision is at least partially obscured by my biases.
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November 19, 2009, 12:36 pmRichard Aubrey says:
SG.
It’s possible this is being done in the best interests of the nation...by accident and not by the interests of Obama, Holder, et al.
But anybody who could make your Option 3 case as the goal of the administration would be a hell of an advocate.
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November 19, 2009, 1:00 pmAnderson says:
What I really want is for someone to articulate a reasonable case for option 3 — this is being done in the best interests of the nation.
America has damaged itself badly abroad by renouncing the rule of law after 9/11. Trying KSM in open, civilian court — affording him the same protections afforded other criminal defendants — declares that 2001–2008 was an aberration, and that we continue to take pride in our justice system and our commitment to law. It is, in short, excellent PR.
Certain people, the proper epithet for whom escapes me at present, retort to the above that “the terrorists” don’t care. But of course, we are not appealing to terrorists. We are appealing to the vast, non-terrorist majority, whose tacit cooperation the terrorists require for success in their evil goals. Those people were taken aback by Abu Ghraib and Guantanamo, but can perhaps be persuaded (falsely in some part, alas) that there is a new sheriff in town.
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November 19, 2009, 1:01 pmRichard Aubrey says:
Anderson.
Proper guidelines include the president telling us KSM will be convicted and executed? And kept on hand even if acquitted?
Nuts.
This isn’t going to impress the terrorists, but it’s not going to impress anybody else, either.
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November 19, 2009, 1:05 pm**** J ***** says:
You state that that the military tier system of justice is “low quality”
It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.”
You suggest that the remedy for the “credibility problems” of the “low quality” tier of justice is to try only weaker cases in that forum.
A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty.
It escapes me as to how cherry picking only weaker cases for trial in the “low quality” military tier system remedies the alleged “credibilty problem” of conviction in the military system. By your own definition convictions in the military tier are “non credible”
The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convic tions are not possible.
You also suggest that as part of the governments calculus, it will only try non dangerous “suspects” (i.e., war criminals) in the “high quality” justice system.
“The government will make a judgment as to whether a suspect is dangerous or not.”.
Can you explain the criteria as to how the alleged mastermind of the 911 attack could be “judged” “not” “dangerous”? If he is not “dangerous”, what is the criteria for making a determination that a “suspect” is dangerous?
You state that the main criticism of Holder’s approach is that KSM will take over the proceedings. That is a red herring. It is not the main criticism. The main criticism is that KSM is an enemy combatant and is not entitled to a trial in American Civil Courts and that Holder’s decision is without precedent, unnecessary and expensive. It also compromises American criminal jurisprudence by unnecessarily pressuring federal court judges into reevaluating longstanding legal precedents in order to ensure convictions of “dangerous” enemy combatants that these judges no full well can not be allowed to be acquitted. It also undermines the jury system as jurors are being lectured by the President and the attorney general that conviction is assured. What is the mesage being sent to the general jury pool if whenever the government asserts the guilt of a criminal suspect.
The main criticisms of Holder’s approach are that KSM and others will take over proceedings and use them for propaganda purposes, that secrecy will be compromised, and that the approach signals insufficient seriousness about the terrorist threat.
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November 19, 2009, 1:06 pmAnderson says:
200: While Obama did not quite say that, in the quotes I’ve seen, it *is* rather foolish of Holder to pander by saying KSM will be kept incarcerated, regardless.
The correct response would be, “I’m sorry, are you suggesting that you think KSM is innocent? Give me a break.”
Obama’s vaunted political skills, like his vaunted moral sense, have proved wanting.
However, I was addressing simply the decision to put KSM on trial in S.D.N.Y., which I continue to think is prudent.
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November 19, 2009, 1:11 pmRichard Aubrey says:
Crap. What is it with this thing?
Anderson. How are Obama, Holder, you and your buddies going to finesse the seventy-five guys who will stay at Gitmo without a trial?
How is that going to impress others with the American system of justice?
Hint: Obviously repetitive lies do not constitute an actual, working memory hole.
Honest.
The admin hasn’t figured this out yet.
They may never.
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November 19, 2009, 1:11 pm**** J ***** says:
You state that that the military tier system of justice is “low quality”
“It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.”
You suggest that the remedy for the “credibility problems” of the “low quality” tier of justice is to try only weaker cases in that forum.
“A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty.”
It escapes me as to how cherry picking only weaker cases for trial in the “low quality” military tier system remedies the alleged “credibilty problem” of conviction in the military system. By your own definition convictions in the military tier are “non credible”
“The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convic tions are not possible.”
You also suggest that as part of the governments calculus, it will only try non dangerous “suspects” (i.e., war criminals) in the “high quality” justice system.
“The government will make a judgment as to whether a suspect is dangerous or not.”.
Can you explain the criteria as to how the alleged mastermind of the 911 attack could be “judged” “not” “dangerous”? If he is not “dangerous”, what is the criteria for making a determination that a “suspect” is dangerous?
You state that the main criticism of Holder’s approach is that KSM will take over the proceedings. That is a red herring. It is not the main criticism. The main criticism is that KSM is an enemy combatant and is not entitled to a trial in American Civil Courts and that Holder’s decision is without precedent, unnecessary and expensive. It also compromises American criminal jurisprudence by unnecessarily pressuring federal court judges into reevaluating longstanding legal precedents in order to ensure convictions of “dangerous” enemy combatants that these judges no full well can not be allowed to be acquitted. It also undermines the jury system as jurors are being lectured by the President and the attorney general that conviction is assured. What is the mesage being sent to the general jury pool if whenever the government asserts the guilt of a criminal suspect.
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November 19, 2009, 1:17 pmMark Buehner says:
Military tribunals are hardly something new. Lincoln’s conspirators were tried by military tribunal and they were US citizens, not even rebels (I think they were all from Maryland). What’s new is capturing and enemy on a foreign field and dropping them in federal court. I believe Lindsey Graham pointed that out to Holder yesterday and stumped him.
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November 19, 2009, 1:25 pmtom says:
“A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty”
ARRRGH.
What people won’t believe it?
The folks at daily Kos? Al Qeada?? Who are these mythical people Obama seems to desperateley want to please? This Administration is like an insecure teenager who will do anything to get everybody to like her.
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November 19, 2009, 1:26 pmtom says:
“A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty”
ARRRGH.
What people won’t believe it?
The folks at daily Kos? Al Qeada?? Who are these mythical people Obama seems to desperateley to want to please? This Administration is like an insecure teenager who will do anything to get everybody to like her.
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November 19, 2009, 1:26 pmCargosquid says:
Remember, everything is about Obama’s legacy. Nothing else.
After all the legal wrangling, Obama may very well be out of office by the time any civilian trial is concluded. Holder did not tell Sen. Graham that KSM would be re-imprisoned. He said that Congress would not allow KSM to “be released in THIS country.”
Obama could be accused of biasing any jury pool with his statements. If KSM is found “not guilty”, Obama can point to that as an example of how fair HIS administration is and that HE has restored America to the fair and wonderful place it was before.....fill in the blank.
All of the ramifications on KSM and other terrorists custody status has been done. No one wants a clear definition. One that we could use is the old term OUTLAW. They are outside the law, and therefore free game for anyone. Just as we will never see a return to the standards of piracy prosecution from the past (can you see any modern skipper of a warship hanging pirates caught in the act?), our society will not allow itself to treat these mad dogs appropriately.
This “trial” could be held anywhere. NY will be picked for the theater. Why not Pennsylvania? Or Virginia? Holder refused to answer any questions about conflict of interest because of past associations with firms that DEFENDED the terrorists. This is about Obama’s legacy. Holder is his pet.
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November 19, 2009, 1:27 pmJohn Moore says:
Yep, that’s what the europhiles think, which indicates why they are incompetent to protect our nation.
The US did not renounce the rule of law after 9/11. Some here believe strongly that we exceeded the government’s legal power in a few cases — which is a far different situation.
Beyond that, this whole “we take pride in our justice system” is irrelevant drivel. KSM was not subject to our justice system until Holder made the unilateral decision otherwise. There is zero precedent for trying him with the rights and privileges of a domestic criminal.
He is not just another criminal defendant. He is part of an organization that is at war with us. Don’t believe it’s a war? Then contest with congress their AUMF. It’s a war, and he is an illegal combatant who is a member of the enemy.
While a few Eurosnobs and other disconnected elites will praise this as some sort of utopian solution, the rest of the world, and the US, look at this as either the height of stupidity, or a perfidious plan to discredit the Bush administration at the cost of our national security.
Personally, I think it’s both. Stupid AND perfidious.
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November 19, 2009, 1:38 pmSG says:
America has damaged itself badly abroad by renouncing the rule of law after 9/11. Trying KSM in open, civilian court — affording him the same protections afforded other criminal defendants — declares that 2001–2008 was an aberration, and that we continue to take pride in our justice system and our commitment to law. It is, in short, excellent PR.
This would be convincing if it were applied to all detainees. But since it does not, and we will continue to use the alternate path when it suits our purposes, this does not provide excellent PR — it delegitimizes both tiers. Hell, your argument provides confirmation that this is meant as an attack on Bush, only that you think that’s synonymous with the best interests of the nation. And perhaps that’s the best explanation of Obama and Holder’s decision — they don’t see a difference between attacking Republicans and attacking the nation’s enemies. To them (and you) they’re one and the same.
And I still can’t figure on what grounds you ignore the actual law of the land that 9/11 was an act of war and instead declare it to have been a criminal act. It’s just dishonest. But why should I expect better?
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November 19, 2009, 1:50 pmHarryEagar says:
I don’t think military commissions are acceptable under Kahanomoku, and wonder whether Tim, in his ‘research back to the civil war,’ stumbled across that decision.
On the other hand, if the defendant is a ‘prisoner of war,’ then he cannot be handed over to civilian courts under the Geneva Convention.
Best just take him out behind the barn and shoot him, maybe.
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November 19, 2009, 1:53 pmRichard Aubrey says:
Let’s presume that the jihadis manage to scew up the trial.
Let’s say KSM is acquitted and afterwards a juror or three say they voted to acquit because they were threatened. Or felt threatened.
One of the jurors on the second Rodney King trial said he was aware of the riots the first time around. Didn’t say what he did because of that awareness. At least one OJ supporter said, after the acquittal, that OJ should thank the streets.
So we have just a small incident. Maybe only a couple of dozen people killed at lunch at a no-name restaurant. Trial moved.
Suspended.
Acquittal.
How good does the system look?
Yeah, and for some Bush is the worst enemy this nation ever had. Everything is justified in going after him.
The question is whether Anderson and his type really believe themselves or hope that repetition will convince the gullible.
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November 19, 2009, 1:57 pmPLR says:
In both your make-believe world and the real world, KSM would promptly be shipped to the next country where he is wanted to answer for his crimes. That country will give him a normal trial, without considering a fake alternative with only one possible outcome.
Surely there will be a country where the jurors or other triers of fact are courageous enough to send a murderer to his just deserts, in the event our citizenry has been cowed by DHS, DOD, Fox News and/or various occupants of the executive branch.
Next.
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November 19, 2009, 2:07 pmRichard Aubrey says:
PLR. See New Orleans and their unprosecutable murders for the effect of fear on jurors and triers of fact.
Next. (Boy, that’s a stupid remark.)
Anyway, after this happens in the real world, what does our system look like?
You’ll note, and probably lament, that the guards at Gitmo take every precaution to avoid having the prisoners know their names. Fear for their families in the face of overt threats.
Are those guys overreacting?
Yeah. We need some families of soldiers dead to show our courage.
What trash.
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November 19, 2009, 2:17 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by bcullenhawkins: eric posner totally defending the obama justice dept. nice to see conservatives making sense for once http://tinyurl.com/y9d4pae...
SenatorMark4 says:
Think ICC here. Of course the civilian trial will be a huge circus and then, our dear leader, will decide that this is better tried by the International Criminal Court so that he can wash his hands of it.
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November 19, 2009, 2:19 pmDr. Dean says:
KSM, OBL are “lawful belligerents”. Al Qaeda declared and prosecuted a war against the United States resulting in thousands of deaths of American citizens and others. Morally and legally, Al Qaeda are belligerents in a war and clearly should be treated as such.
When Japan dropped the first bomb on Pearl Harbor we were instantly at war with them by definition of “an act of war”. Further, even though our government had not yet formally declared/acknowledged that fact, the actions of the people on the ground in Hawaii that day were and are actions taken to defend themselves from an overt act of war by a belligerent.
Pearl Harbor, just like 9/11, was not a crime — it was an act of war.
We didn’t try the leadership of Japan in civilian federal court in Hawaii did we? Were we as a nation evil and somehow less deserving of respect from the rest of the world for not doing so?
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November 19, 2009, 2:25 pmAllen McPheeters says:
I thought that one of the reasons Obama was elected was that he was going to show a more moral face to the world than Bush did, including “more” adherence to the rule of law. Determining whether to try alleged terrorists on the basis of how easily the government can make the case doesn’t seem to qualify.
I can imagine creating set of criteria by which you determine that this person should be tried in civilian courts and that one should be tried in a military tribunal. (A primary criteria would probably be the degree to which civilian trial risks revealing intelligence assets.) But this business: we’ll pick and choose cases for the civilian courts to try, on a case-by-case basis, seems arbitrary.
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November 19, 2009, 2:29 pmEvilDave says:
Yes it does.
Democrats like KSM more than they like our military personnel.
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November 19, 2009, 2:31 pmPLR says:
None of that is responsive to my post (which I freely admit did not solicit responses).
But if the present American rule of law is dismaying to you, there are Congressional elections in even numbered years. Keep your checkbook handy.
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November 19, 2009, 2:38 pmmatt says:
The case is the biggest legal can of worms in history, and will now be a complete circus. Don’t be surprised if the perpetrators walk.
I blogged on it at the link above. Holder and KSM playing hot potato with a hand grenade.
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November 19, 2009, 2:46 pmletter of marque says:
Anderson’s pirate analogy implodes due to contrary case law. See Montoya v. United States.
Pirates engaged in “individual plunder” are not engaged in acts of war. Terrorists whose “depredations are part of a hostile demonstration against the government . . . in general” and whose “hostile acts are directed against the government or against [civilians] with whom they come in contact” are however, engaged in “act[s] of war.”
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November 19, 2009, 2:46 pmTBlakely says:
Having KSM convicted is of purely secondary interest to this administration. The purpose of Holder’s decision is to try the Bush administration by proxy. I predict a lot of interesting information (both real and imagined) will be leaked to KSM’s defense team by ‘concerned’ nameless citizens.
If in the end KSM is not found guilty, Obama will state in a sorrowful voice that if it wasn’t for the shameful acts of the Bush administration justice would have prevailed. If KSM is found guilty, then Obama will state in a stern voice that justice has prevailed despite the shameful acts of the Bush administration. In their shortsighted view it’s a win-win situation.
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November 19, 2009, 2:55 pmMaureen001 says:
1. Any pretense by the Obama administration that trial of KSM in a civilian court will be a just process went right out the window with both the President’s and AG Holder’s prejudging statements in the media about the guilt of the man and their projections of the outcome of such a trial.
2. This is NOT a new enemy; it is a very OLD one. Thomas Jefferson reported the words of the envoy of Tripoli to then-SecState John Jay: “It was written in their Koran, that all nations which had not acknowledged the Prophet were sinners, whom it was the right and duty of the faithful to plunder and enslave; and that every muslim who was slain in this warfare was sure to go to paradise.” Do you see any difference whatever in these words and those being uttered today by al-Qa’eda?
3. The US did NOT declare war in either the First or Second Barbary Wars. It was not necessary. War had been declared on us; Congress merely authorized the action we took to address the threat, which was an aggressive (and effective) military response both times. Do you see any difference between that and what Congress did post-9/11/01?
4. I abhor and condemn the reckless, baseless, politically-tainted claims that legal proceedings under the USMJ would be anything less than a “pure high quality” system as hogwash and codswallop, pure and simple. Shame on you!
5. Upon conclusion of the Second Barbary War 1,038 enslaved Christians were released by the muslim leaders who held them. How many hostages have been held now by the Somalian pirates? How many in Iraq, Iran, the Middle East in general, in the Philippines, Indonesia? We keep thinking this is something that originated on 9/11/01, but it’s actually never ended. The only inconsistency is on our part, not theirs.
6. How will anyone guarantee national security will not be compromised once Wesley Clark and Lynne Stewart (and the like) become defense counsel to KSM? The track record on this indicates exactly the opposite.
7. Former AG Ashcroft today has said AG Holder “doesn’t have the authority to mandate that the secretary of Defense turn somebody over to him and yield jurisdiction so that something that would have been done in a military setting is done in a civilian setting”. He asserts that only the President has the authority to make this call, in spite of President Obama’s differing claims. This makes sense to me, given that the President is not only the Chief Executive Officer but Commander-in-Chief, and as such, is the only member of the executive branch to have authority in both government and military venues.
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November 19, 2009, 2:59 pmPubliusFL says:
I think the relevance of Kahanamoku is limited by the following language from that case:
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November 19, 2009, 3:00 pmRPT says:
Blakely:
Great conspiracy theory. Is this decision being made by or with the consent of the many Bush holdovers in the DOJ? Why does the BO/EH DOJ not assert claims or initiate investigations directly against the “Bush Administration”? Who is going to do the leaking? What is the bass for your theory here? Proof man!
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November 19, 2009, 3:16 pmRPT says:
Recall that the VA and benefit-cutting R leadership have no particular affection for the military. Boehner? Cantor? Cheney, Sr. and Jr.? McConnell? To paraphrase, sir, “you can’t handle the truth”.
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November 19, 2009, 3:20 pmMike M. says:
That’s not the answer.
First, they are not being “tried” in civilian court. They have admitted that the verdict is already pre-determined. This is not a trial. It is an exercise in propaganda and political power.
Second, the whole exercise is to “convict” Bush. He is their scapegoat, and they need to abuse him so that they may more easily abuse us (America).
Third, the ultimate point of the trial is to destroy America, and to refashion a new entity here in America’s former geographical borders.
If you don’t see the last point it’s just because you’re a coward. And who could blame you for being one? If that happens you, yourself, lose almost eveything too. That is hard to admit.
Your “analysis” sounds sophistiocated, urbane, inciteful, etc. But it’s just a coward’s BS, isn’t it?
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November 19, 2009, 3:36 pmRPT says:
Dave:
Do you know how federal criminal trials work? Are they televised? Do they allow real time “twittering”? Do you think that the trial judge will be an Obama appointee? Do you think that the SDNY USA and the trial attorneys assigned to the case will be Obama appointees? Do you know how AUSA’s are hired and evaluated? Do you think that KSM will be pro see and allowed to make speeches in the trial? Do you think that being treated as a criminal enhaces his status more than being proclaimed, as the R’s do, as some superpowerful warrior terrorist whose mere presence is more of a threat to NYC than Godzilla? Wow.
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November 19, 2009, 3:41 pmPhd says:
What do you call it where the government cherry picks aspects of the legal system without regard to precedent, or the controlling document (constitution), to suit it’s political ends and retain power? A tyranical dictatorship, maybe? We’re there, folks!
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November 19, 2009, 3:44 pmAnderson says:
Second, the whole exercise is to “convict” Bush.
Okay, finally, I’ll bite:
What is supposed to be the reason for us to believe in this motive?
... Marque, I did not say that terrorists *are* pirates; I wondered whether treating terrorists as “enemies of all mankind,” like pirates, would offer a useful legal precedent, rather than the making-shit-up approach that’s favored by those who imagine terrorists to be soldiers.
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November 19, 2009, 3:44 pmFrancis Galton says:
It’s not just the height of offspring that reverts to the population mean. Young Posner has completely botched his attempt to apply signalling theory to this situation.
If the assignment of cases is made in order to maximize convictions, claims of greater justice are completely spurious. There are several perfectly defensible reason for trying all terrorist suspects in military tribunals, an approach that would make inferences about the quality of the prosecution’s evidence in any particular case impossible.
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November 19, 2009, 3:47 pmAnderson says:
What do you call it where the government cherry picks aspects of the legal system without regard to precedent, or the controlling document (constitution), to suit it’s political ends and retain power?
Prosecutors make “cherry-picking” decisions, if you think that’s the term, all the time. We could charge under statute A or B — which offers a better shot of conviction? A case can be brought in two different venues — where are we more likely to win? Etc.
Having two types of court in which to proceed, UNDER THE LAW, and choosing the more advantageous, is nothing shocking.
And again, people who whine about “tyranny!” but didn’t give a damn about torture or indefinite detention over the past 5 years, need to go back to their Glen Beck tivo and quit trying to carry on conversations with non-stupid people.
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November 19, 2009, 3:49 pmDennis says:
Having read thru this lengthy thread, it appears that the central argument in favor of this decision is that it demonstrates the honesty and integrity of the American system to currently unaligned peoples in other countries, thereby reducing the support for terrorists and therefore reinforcing the U.S. position. (There is also apparently an argument over whether 9/11 was an act of war vs a civilian criminal offense; so far I find the argument that it is the latter unconvincing.)
I am still waiting for a straightforward answer to the questions (1) how is this possible given that Obama and Holder have stated that the outcome of guilt and execution is essentially predetermined?; (2) how is this possible when Holder indicates that if by some fluke the trial outcome is not as expected, that the govt will retain KSM anyway?; (3) how is this possible when a two-tiered system is used with the govt subjectively deciding which based on what is most favorable to its interests?; (4) how is this possible when a significant number of detainees will be held indefinitely without any trial?
And the answers — given the persuadable masses abroad — cannot be in clever legalese, but rather common-sense and fairness. Otherwise, it is just an exercise in projection.
Since there is strong precedent for using military tribunals, and since Congress in fact first effectively acknowledged 9/11 as an act of war and secondarily explicitly authorized such tribunals for this purpose, the burden for justification is on those supporting the Holder decision.
Until those questions are satisfactorily addressed, the rest is noise. And in the absence of substantive justification, that regrettably leaves only the conclusion that this is a political decision.
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November 19, 2009, 3:59 pmRPT says:
Maureen001:
Could you explain how it is that you are qualified to attack the service record and patriotism of Gen. Wesley Clark?
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November 19, 2009, 4:02 pmjr565 says:
Unless of course, they are in the lower tiered rung of the jihadist majority who was captured on the battlefield. And then they get the lower tiered justice which affords them the fewest rights, whereas the KSM’s get the higher tiered justice which gives them a day in court. So, in fact they are appealing to the terrorists and not the vast majority, whoo when faced with trials will in fact be grossly disappointed if they assume that they’ll actually get a day in court.
Poor jihadis. If they had just killed more people and done it in a better venue they might get full court trials
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November 19, 2009, 4:03 pmRichard Aubrey says:
PLR.
You seem to be proof against reality. Not that that’s uncommon.
Fact is, this is going to be a circus and it will not impress people. Not positively, anyway.
Is it your view that the American rule of law includes the president confidently predicting conviction and execution as if they’re done deals?
That the acquitted defendant will not be allowed to go free? I know you’ll deny KSM could possibly be acquitted, but that doesn’t matter. Holder already said he’s not getting loose, acquittal or not. And the vaunted fairness of the American rule of law is going to be kind of hard to see when we start putting him on trial for something else, and then something else, until we get a conviction. I guess that’s what Holder had in mind if the first trial results in an acquittal. It wasn’t me that arranged for the no-release nohow version of the American rule of law.
Or maybe Holder’s planning, should an acquittal happen–and he must have thought it might or he’d not have discussed it–to say “acquittal, schmaquittal, he stays” Great example of the rule of law.
My view of the American rule of law is hardly going to matter when said circus is viewed by people overseas, which is Holder’s main point.
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November 19, 2009, 4:05 pmRPT says:
Have any of the EH critics here reviewed the history of the military commission cases? Are there any instances of pretrial dismissals? Can you compare that record to comparable federal criminal prosecutions dismissed for investigative or law enforcement wrongdoing? Please provide details.
And, can you tell us exactly what conduct of the “Bush Administration” the OB/EH DOJ wants to put on trial while the same DOJ will be prosecuting KSM? Who will testify for the defense as to the facts? Will KSM have retained counsel, panel counsel or appear pro se? Does he speak English? Will he be able to appear pro se if he doesn’t.
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November 19, 2009, 4:09 pmPhd says:
Anderson:
You left out Nixon and Watergate. Also, all we stupid folks really appreciate having folks around who know what’s best for us. Thanks.
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November 19, 2009, 4:10 pmMark Field says:
I’m ok with it if (a) you admit they fit the definition of those subject to indefinite detention; and (b) you treat them the way the GC requires. Bush wasn’t willing to do either.
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November 19, 2009, 4:10 pmSG says:
What is supposed to be the reason for us to believe in this motive?
Occam’s Razor: Every other explanation offered so far is either contradicted by the facts or assumes profound stupidity on the part of Obama and Holder.
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November 19, 2009, 4:10 pmMike M. says:
I stated the reason: They need a scapegoat (a la Rene Girad if you want to know what I mean by that; or check your local schoolyard). Bush is the scapegoat. He will then become a symbol. With that symbol, they can achieve their ultimate goal — the detruction of America.
I said that pretty clearly. Wouldn’t your question be “Why would they want to destroy America?”, and doesn’t knowing them and a bit of history already answer that question?
If you think that is ridiculous, I offer as evidence the pas year (give or take), and the current prospects for the future. The evidence is on my side. You need to make the case why you think — despite the evidence — they are not really trying to destroy America.
Please make that case if you can. Nothing would make me happier than to know that these people were mere buffoons and not diabolical monstrostities.
Thanks.
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November 19, 2009, 4:15 pmRichard Aubrey says:
Dennis.
Lawyers and polticians are used to–get paid to–cloak nonsense and vileness in clever legalese.
It would be strange if they thought the persuadable masses overseas would need clarity and evidence of fairness.
I can imagine Obama and Holder and their supporters trying to explain Quirin and some kind of backdoor view of the GC, and thinking they’re making some good public relations progress.
I mean, would anybody here supporting this circus think of any other way?
I mean, here we are arguing over arcane points of law when the POTUS has taken the extraordinary step of proclaiming conviction and execution before the event.
And somebody thinks more arcane arguments afterwards will fix things?
Good lord.
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November 19, 2009, 4:16 pmjr565 says:
Anderson wrote:
And similarly, all that talk about how Bush was evil for holding people indefinitely and not giving them full trials was proven to be nothing but pablum from your side to get Democrats into office.
For all the high minded rhetoric, your side doesn’t really care about rights of jihadists either. In fact your side seems to be suggesting that rights are relative to how easy it is to convict people. If we have airtight cases, then we can proceed with civilian trials, but if we have shaky cases we’ll hit them with tribunals so as to have a better chance of conviction. Wow, what a moral argument you got there.
THough from an intellectual standpoint, explain how, if you have a slam dunk case for a civilian court that you somehow wouldn’t have a slam dunk case with the same evidence using a tribunal instead since fewer rights are afforded to the accused.
You can’t argue that somehow tribunals are now wrong, since you’ve already established that tribunals are a ok after all.
Intellectual people thank you jerks for wasting our time with all your caterwauling about torture and the evilness of Bush for daring to hold jihadis without trials. It was all posture.
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November 19, 2009, 4:16 pmRichard Aubrey says:
565
And not particularly well-hidden posturing, either.
Nevertheless, I think they will continue to expect us to take them at their word.
I think Anderson and PLR should explain how detaining 75 guys without a trial will impress the persuadable masses overseas.
Start right in, guys.
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November 19, 2009, 4:22 pmMike M. says:
SG: You are correct.
The so-called smart people here are not smart enough to see the basic logic. The alternative to the reality is mere buffoonery or stupidity of the entire Obama Team and All the Dems who support him. That is far-fetched. I will easily say they are all “evil” (strictly speaking in the Augsutinian sense). That is pretty obvious to anyone who is even remotely honest. But all profoundly stupid? Not likely. The odds don’t work on that deduction.
They work brilliantly on the conclusion that the damage is intentional and that there is more being planned. It’s a war. They are winning every single battle so far, and will win the whole thing — turning us into slaves and serfs — if they aren’t even fought against.
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November 19, 2009, 4:25 pmSG says:
I’m ok with it if (a) you admit they fit the definition of those subject to indefinite detention; and (b) you treat them the way the GC requires. Bush wasn’t willing to do either.
Without defending the the actual Bush Administration’s policies with regards to detainees, it’s not clear to me these detainees should receive all the rights and privileges of GC if they don’t abide by the responsibilities the GC requires of legal combatants. They can be combatants subject to (a), but without the the rights (b) that legal combatants possess.
Which is to say, the Bush Administration’s policies for determining detainee status may have been deficient (different discussion — but Congress is responsible for setting the rules.), but that doesn’t imply that the right response is either criminal trials with the possibility of acquittal or full POW status. It seems perfectly legitimate to develop a better process (if needed) that still leaves appropriately determined detainees in custody for the duration of hostilities yet does not (say) grant the right for detainees to decline interrogation.
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November 19, 2009, 4:29 pmMike M. says:
http://article.nationalreview.com/?q=MWMwN2UyNzYwN2M1Y2JkNTdiODk1OWMyYmVmYTA2YmU=
Andrew McCarthy: “Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence. They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers. As civilian “defendants,” these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.
This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.
…
From indictment to trial, the civilian case against the 9/11 terrorists will be a years-long seminar, enabling al-Qaeda and its jihadist allies to learn much of what we know and, more important, the methods and sources by which we come to know it. But that is not the half of it. By moving the case to civilian court, the president and his attorney general have laid the groundwork for an unprecedented surrender of our national-defense secrets directly to our most committed enemies.”
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November 19, 2009, 4:40 pmmojo says:
Endless detention without trial is no longer a politically viable option.
How about Summary Executions? Works for me.
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November 19, 2009, 4:48 pmmojo says:
And it sure cuts down on recidivism...
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November 19, 2009, 4:49 pmChris of Rights says:
I think the two-tiered method has just as many credibility issues.
You’re basically admitting that the whole thing is a farce. When asked “why was X given a civilian trial, while Y had a military one”, Holder is unable to answer. The truthful answer would be “because we can’t convict Y in a civil trial and we want to make sure he’s convicted”. That admits that the whole thing is for show.
So, Holder is forced to hem and haw and evade the question. Which doesn’t add to his or the trials credibility either.
In fact, I think that the only way to avoid credibility issues IS to have a one-tiered system. The two-tiered system makes a mockery of the process.
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November 19, 2009, 4:57 pmTim says:
Not according to Quirin, which is still good law in the United States. Perhaps you should read all of the comments, not just the ones that suit your fancy.
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November 19, 2009, 5:04 pmpunditius says:
I don’t think there’s any two-tier prospect at all.
Let’s view this in terms of foreign policy concerning terrrorism, and bear in mind that Obama would not have taken this step without wargaming the possible outcomes.
Obama’s foreign policy objective is to reverse Bush’s policy that we are at war with a loose alliance of terrorists and terrorist sponsoring states, in favor of the left wing belief that we are facing an international criminal conspiracy.
Operating from this perspective, Obama has picked a high profile case which he either wins in criminal court, which validates the criminalization approach over the warfare approach, or loses, which can only happen because of things that occurred while Bush was wrongheadedly engaging in the warfare policy.
I think Holder has convinced Obama that KSM will be convicted. Why else would Obama risk saying that a conviction will occur? If it does, then we will see the criminalization approach utilized for all the prisioners we have, and in point of fact, those situations where the prosecutors decide we can’t win in court will result in release of those prisoners, not in trial by military tribunals. Obama will be able to say that we are following the law by bringing the criminals to trial, and the success against KSM will give him cover for doing that.
I also think that Obama has decided that if KSM is not convicted, he will be released, along with all the other prisoners. It might take a couple more trials before we reach this point. The story then will be something along the lines that if we can’t convict the main guys, there’s no way we can get the small fry. Obama’s cover will be the acquitals, plus blaming Bush because Bush is the one who mucked things up by doing things wrong in the first place. Obama knows that the media will spin any losses that way.
So. Convict KSM and validate the criminalization approach. Fail to convict KSM and invalidate the warfare approach. Either way, close down Guantanamo.
It’s a win/win/win for Obama.
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November 19, 2009, 5:06 pmgeokstr says:
What a coincidence. A number of the lawyers hired by Holder that are now working on this case were busy defending the Guantanamo jihadis before joining the DOJ:
Did Holder stiff Senate on Justice Dept. lawyers who defended jihadis?
I would not doubt a bit that these creeps are already feeding information to KSM’s lawyers on exactly what to ask for, because they’ve already found it for them, and have probably already boxed the copies for discovery. Everything that can make Bush, Cheney, Yoo, the CIA, and others look bad will be in there.
Like most everything that comes out of Obama’s mouth, when he said that prosecutions of members of the prior administration would not happen, and it’s time to move on, he was lying through his teeth. It just took them this long to figure out how to do it and still be able to say, look, it’s not my fault.
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November 19, 2009, 5:06 pmAnderson says:
And yet somehow, Andrew McCarthy was able to avoid these issues when he helped try Islamist terrorists who wanted to blow up the WTC.
But all the good prosecutors are now writing for National Review, apparently.
(What a hack.)
You need to make the case why you think — despite the evidence — they are not really trying to destroy America.
Um, no. Actually, I don’t need to argue with someone who thinks that “Obama is trying to destroy America.”
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November 19, 2009, 5:12 pmRPT says:
Let’s ask another question:
Are any of the EH critics here lawyers? Any experience with federal criminal trials? Ever been in a federal court?
The proferred “Razor” rationale is pretty funny as used to justify the most complicated explanation of how trying KSM in NYC is really a complicated conspiracy among BO, EH, and former detainee defense lawyers to get GWB. However, you guys have left out a critical part of the scheme; ACORN!
That is, fresh off their successful manipulation of the 2008 election to generate 10,000,000 fraudulent votes for BO (which even Hans Bader, Hans von Spakovsky and Glenn Beck have not yet discovered), and NY 23, ACORN operatives will infiltrate the SDNY court staff so as to send out jury summons only to fellow ACORN operatives. Then the left wing defense lawyers will conspire with the left wing AUSA and left wing District Court trial judge to conceal the ACORN involvement in voir dire so that an acquittal is guaranteed.
This is Occam’s Razor as wielded by Sweeney Todd. If there are any details which I have omitted, please fill them in.
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November 19, 2009, 5:27 pmjr565 says:
Anderson wrote:
I think if you read his book you’ll come to the conclusion that he’s not in favor of trying terorrists in court going forward and that a lot of issues did occur with the trial he presided over.
http://www.amazon.com/Willful-Blindness-Andrew-C-McCarthy/dp/1594032130/ref=sr_1_1?ie=UTF8&s=books&qid=1258669804&sr=8–1
I’d start there.
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November 19, 2009, 5:32 pmAndrew J. Lazarus says:
I don’t think that’s correct, when an enemy soldier of US Citizenship was an enemy draftee. This could certainly happen in cases where such a person was caught behind what became enemy lines when war broke out.
In other words, while America didn’t allow for dual citizenship (and in certain cases still doesn’t) when an American citizen petitioned for citizenship elsewhere, it wouldn’t make any sense for the United States to let other countries dictate our citizenship policies. Suppose Country X stated that the child of X-ian citizens was a citizen of X even if the parents had expatriated to the USA before the child’s birth. On a very strict construction, the child could lose American citizenship just by visiting X, whether or not war broke out.
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November 19, 2009, 5:35 pmRPT says:
“What a coincidence. A number of the lawyers hired by Holder that are now working on this case were busy defending the Guantanamo jihadis before joining the DOJ.”
This is a very broad conspiracy:
“Giuliani Partners
In 2002, Giuliani formed Giuliani Partners LLC, which has since earned over $100 million.
Among the firm’s clients was Qatar Minister Abdullah bin Khalifah Al Thani, who has numerous ties to al-Qaeda and, in the 1990s, helped Khalid Sheikh Mohammed (known as the mastermind of the 9/11 attacks) elude the FBI. But, more important for Giuliani, Al Thani’s checks were also good. It is unclear whether Giuliani ever sent any of the money he made from Al Thani to any of the victims of the attacks planned by Al Thani’s associate, Khalid Sheikh Mohammed.”
What a coincidence indeed! RG is part of the KSM conspiracy. Sort of a “Manhattan-churian candidate” sleeper cell tye guy already in place to faciliate KSM’s victory. .
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November 19, 2009, 5:37 pmno relation says:
That’s not what you said. This is what you said:
So you did analogize terrorists to pirates in order to justify your claim that 9/11 was not an act of war. Montoya v. U.S. torpedoes that claim, and sinks your analogy. First, by distinguishing acts of plunder (of which piracy is a subset) from “depredations [that] are part of a hostile demonstration against the government” — depredations which may therefore constitute an act of war. Second, by holding that acts of war may in fact occur in the absence of a declaration of war (or its modern equivalent, authorizations of the use of military force).
Your line of reasoning and its salient points are thoroughly refuted by the case law.
If anyone is “making shit up,” it’s you.
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November 19, 2009, 5:37 pmArch says:
I think you have missed the point. The purpose is to try the Bush administration, not the terrorists. The bad guys are just tool. The civilian courts allow the the Obama administion to attack Bush. It also creates a large smoke screen that distracts attention from the healthcare and cap and trade issues. The Obama people have already said that they should not let a good crisis go to waste. In this case, they will create one.
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November 19, 2009, 5:47 pmAndrew J. Lazarus says:
Of course they can demand, the question is will they receive. But I fail to understand why moving their trials to a fair military commission would preclude this. AFAICT, the recommended solution is to give KSM a sham trial before and ad hoc commission using ad hoc rules that choke off any defense he might be able to raise. (Except, given KSM’s enthusiastic admissions of guilt, I don’t see what defense that would be.) How America would be made safer by holding a kangaroo court escapes me. Perhaps someone could explain?
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November 19, 2009, 5:48 pmJohn Moore says:
Because KSM would be now dead, and not bothering us. Because few in the world who actually count give a damn about how we go about trying KSM at this point. Just who, exactly, are we trying to impress with our current charade? Is Obama going for another Nobel prize?
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November 19, 2009, 5:53 pmJohn Moore says:
Victor Davis Hanson says this trial decision is like letting a cobra loose in the living room.
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November 19, 2009, 5:59 pmhitnrun says:
I think by “accurate” you mean “most rigorously biased against conviction.”
To take the extreme case, OJ Simpson killed his ex-wife. This is not conjecture, or “alleged.” Well, it is those things, but it is also actual fact. The Earth revolves around the sun, bears defecate in the woods, the Pope is Catholic, and OJ Simpson killed his ex-wife.
He was not convicted of doing so due to the various biases toward non-conviction that are our civil rights as Americans. This is not a “more accurate” brand of justice, unless that’s meant as a partially ironic term understood by those who use lawyer jargon, in which case I apologize.
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November 19, 2009, 6:01 pmgarrett says:
Posner:
You might be the dumbest legal mind I have yet to read.
Your arguments are poorly formed and poorly conceived. The ‘Two Tier’ system you refer to only aids the arguments you claim it dissolves. Holder and Obama’s assertions of Certain Conviction and Death Sentence for KSM nullify any grounds you would hope to concede to them in this argument.
Perhaps another stab at this is in order?
Might I suggest that the time for a refresher course is nigh, I’d reccomend any 200 level Philosophy of Law course. You should have no problem auditing one. I think it would help.
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November 19, 2009, 6:04 pmCato The Elder says:
You embarrass yourself with this comment. Can we cut it out with the personal insults, of the professor and the Democrats, please? This thread is a good one, and I’d like that to continue for at least a bit longer.
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November 19, 2009, 6:07 pmSG says:
How America would be made safer by holding a kangaroo court escapes me. Perhaps someone could explain?
Perhaps you could explain why that “kangaroo court” as you call it is sufficient for pretty much everybody who isn’t KSM?
We can have a good debate over what due process we are obligated to provide to these detainees, but I do think the Congress clearly expressed their intent that it be less than what a normal criminal defendant would receive when they authorized the use of military force. It seems that disregarding the other branches of government and making ad hoc decisions is apparently only an issue when the president has an (R) after his name.
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November 19, 2009, 6:17 pmACS says:
Have you ever heard of “separation of powers”? Obama and Holder don’t make the decision whether the prisoner is guilty or what his punishment will be. Their statements are legally irrelevant. Prosecutors, those who execute the law, make statements like this all the time. Their job isn’t to be impartial, it’s to represent the government.
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November 19, 2009, 6:21 pmAndrew J. Lazarus says:
Kevin Drum at Mother Jones.
To a certain extent, John Moore agrees.
Well, if this is a clash of civilizations, or philosophies, I can see certain advantages to a live demonstration of the Rule of Law. (One of the lessons of asymmetric warfare we should have learned by now is that a priori analysis of who actually counts can be grievously mistaken.) I don’t see how KSM is bothering us. His food bill can’t be that high. He seems, instead, to be some sort of demon for the right-wing whose very presence brings danger into his surroundings. To illustrate this, why Al Qaeda will be more determined to avenge him if he is on trial in New York than being waterboarded in Cuba is hard to understand from Al Qaeda’s point of view.
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November 19, 2009, 6:23 pmAndrew J. Lazarus says:
Hunh? Bush and Rumsfeld had to be dragged kicking and screaming into the idea of any tribunal for any detainee, and their structure (which had no resemblance whatsoever to UCMJ courts-martial) was totally bogus. There was one type of tribunal where prisoners would be allowed an advisor who would be required to tell the commission of any admissions his “client” made. Military lawyers agreed they were a sham. Some refused to participate. The Supreme Court rejected Bush arguments repeatedly. What are you talking about when you say this is what justice looks like for everyone except KSM? It’s true that some of the other detainees will be tried by military commissions (following traditional, not Bush-style, rules), but KSM’s trial will be the most visible.
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November 19, 2009, 6:43 pmDennis says:
I’m still waiting for the response to the four questions in my prev post. (3:59)
In the meantime, and since there is already a fair amount of conjecture here, I think it plausible to offer the argument that the Holder decision is being driven by electoral strategy . . .
The president is hemorrhaging support among Independents, a great number of whom believe that while the candidate portrayed himself as a reasonable centrist that would unite the country, all along he intended to pursue a far-left agenda. The notions of post-racial and bi-partisan were clearly a ruse. Without strong support from this bloc not only is he vulnerable but especially next year are those Democrats who won using a similar strategy, in those ~100 congressional districts won by McCain and/or Bush. While it is unlikely that Congress would change hands next year, there could be sufficient Republican gains to significantly stall or even derail elements of the president’s agenda.
After the results in NJ and in particular VA, the WH initially feigned ‘no big deal’. But a week later Axelrod explained that the fundamental problem had been failure to energize the base. Looking closely at the numbers, only with a very strong turnout in the order of ’08 by <30’s and blacks, can the loss of Independents be possibly offset, which loss is likely to be sustained thru next year. Consequently the WH has, according to Axelrod, decided to nationalize the ’10 midterms, with Obama campaigning heavily in the aforementioned districts.
The Holder decision fits in with this strategy, as it not only delivers (or at least sufficiently so) on his promise re criminal prosecutions and GITMO, but also provides more energizing grist for the Bush-hating mill. Very importantly, it will dominate its share of the news cycle, which is an important tactic towards distracting the visibility of details in his policy moves.
Most of the arguments made above focus on either legal or moral considerations. But at the end of the day, unless Holder & Obama (and anyone here) can make a strong supportable argument that these considerations are actually the drivers (again, waiting for those questions to be answered), then a partisan political motivation is the much more plausible explanation.
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November 19, 2009, 6:47 pmRPT says:
Were you at the trial or something?
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November 19, 2009, 6:55 pmRichard Aubrey says:
ACS. Ref separation of powers. Nice obfuscation.
The point is to overawe the foreign public with the wonderfulness of American justice.
Whether the president’s mouthing off about what he has in mind is legally relevant is irrelevant.
It simply looks as if the fix is in.
Which was the point, as you know but tried to duck.
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November 19, 2009, 6:57 pmMark Field says:
The original question to me was whether we could hold people indefinitely pursuant to the GC. The answer to that is yes, of course, but you can only do so “pursuant to the GC” if you comply with the GC.
Had Bush not screwed the pooch so badly, we could consider lots of options. The problem we face is no longer how to deal with the detainees per se, but how to restore our credibility. Providing super duper due process rights to the highest profile detainee seems like a plausible way to do so.
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November 19, 2009, 6:58 pmDennis says:
I presume by “separation of powers” you mean the Executive not having authority over what the Judiciary does. Not being a lawyer, I can’t conclusively comment on your claim. I can observe that such pre-judging has certainly been made an issue in the past in the context of whether the defendant can receive a fair trial.
But I’m afraid you missed my point. The argument being made is that the civilian trial will influence masses in other countries favorably towards the U.S. Those folks don’t give a hoot about separation of powers, assuming they even knew what that was. After all, this isn’t a civics class for the illiterate. What they see is that those widely portrayed sympathetically (over there) are being given a public criminal trial in which both the president and the AG are saying that the results are pre-determined, and if for any reason the accused were not to receive the expected result, such result would effectively be declared null and void. As the president said, it’s not a question of “if”, it’s a question of “when”. This will not be perceived as fair from the supposed target audience’s perspective.
Now how’s about the other three questions? . . .
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November 19, 2009, 7:00 pmRPT says:
How many federal criminal cases has Hanson tried?
If Andrew McCarthy ever responded favorably to a defense discovery request such as described in an earlier post, he would have been fired the next week.
It does not appear that any of the critics have any familiarity with how the federal courts really work.
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November 19, 2009, 7:00 pmjr565 says:
Andrew,
As laid out by many, including Andrew Mccarthy, the tribunals under Bush in fact offered more rights than those given to Nazis at Nuremberg including:
the presumption of innocence;
the imposition of the burden of proof on the prosecution;
the right to counsel—both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one;
the right to be presented with the charges in advance of trial;
access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution;
access to interpreters as necessary to assist in understanding the proceedings;
the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes);
the free choice to testify or decline to do so;
the right against any negative inference from a refusal to testify;
access to reasonably available evidence and witnesses;
access to investigative resources as “necessary for a full and fair trial”; and
the right to present evidence and to cross-examine witnesses.
Now we know for a fact that Holder and co. will continue to use tribunals to try some held (but not others who get even more protections). What magic safeguards were imposed that separate current tribunals from Bushs. PLease be specific.
And if its an issue of prisoners not having rights at trial explain how a two tiered system of justice is fair and how Obama and Holder by assigning rights to various prisoners dependent on who they are and how likely they are to be convicted is somehow better than what you say Bush did.
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November 19, 2009, 7:07 pmBrian G. says:
This is a bunch of nonsense from just another right wing propaganda spewer. Obama wants to show the world that KSM is getting a fair trial and if the evidence shown doesn’t support a conviction, then an American jury will acquit him. Regardless of whether or KSM is acquitted or convicted, it is a real victory for the American justice system that can be trumpted to the world. Besides, as part of the trial, we can show the world that Obama is appalled by the tactics of the thug Bush Administration and its disgusting violations of the Geneva Conventions and human rights and that America will not hide the ugly truth about the evil Bush/Cheney/Rumsfled/Ashcroft/Rove regime that trampled all over the world for fun and so that Haliburton and Blackwater could make ludicrous profits.
What I find appalling is the overwhelming presumption of guilt that all of the commenters have. Other than Bush and his cronies stating that KSM was responsbile, how do we truly know? We don’t. And don’t give me his so-called “confession,” which was so obviously waterboarded and tortured out of him and thus it should be excluded from the trial. From what I have seen, I can’t imagine that he’ll be convicted on such thin evidence. ANd I can’t imagine any jury giving an ounce of credibility to anything Bush’s stormtroopers say. And if he is acquitted, I hope you same people will look at the real problem here, Bush. he should be put on trial for war crimes and crimes against humanity, given a fair trial, and then put in jail at the Hague for the rest of his life, along with Cheney, Rumsfeld, Ashcroft, Rove, and Sarah Palin too.
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November 19, 2009, 7:12 pmDennis says:
(Apologies is this is a dup; system accepted but did not update with my prev reply.)
I’m afraid you missed my point. The argument being made is that the civilian trial will influence masses in other countries favorably towards the U.S. Those folks don’t give a hoot about separation of powers, assuming they even knew what that was. After all, this isn’t a civics class for the illiterate. What they see is that those widely portrayed sympathetically (over there) are being given a public criminal trial in which both the president and the AG are saying that the results are pre-determined, and if for any reason the accused were not to receive the expected result, such result would effectively be declared null and void. As the president said, it’s not a question of “if”, it’s a question of “when”. This will not be perceived as fair from the supposed target audience’s perspective.
Now how’s about the other three questions? . . .
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November 19, 2009, 7:12 pmRichard Aubrey says:
Not exactly O/T. Some of this discussion comes close to the POW question.
I will remind the folks here that holding a POW until the end of hostilities is the done thing.
But the handwringers howled that this might be forever. “When will it be over? Huh? Huh? You can’t tell me when it will be over and we’ll be holding these guys for some unknown time! Inhumane. Damn Bush and Cheney.”
So, before insisting that these guys should have been POWs from the get-go, recall that a number of lefty handwringers did their damndest to foreclose that option.
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November 19, 2009, 7:12 pmNew Pseudonym says:
Do you know where the Pentagon is?
Do you know where Flight 93 crashed?
Do you know where the conspirators met to plan the crime?
Do you know what state’s airspace the planes were in when they were hijacked?
Lots of venues for this trial. Try again at answering the question seriously.
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November 19, 2009, 7:43 pmAnderson says:
Other than Bush and his cronies stating that KSM was responsbile, how do we truly know? We don’t.
He told an al-Jazeera reporter, for one thing.
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November 19, 2009, 7:51 pmJohn Moore says:
That’s total BS.
The problem we continue to face is the threat of terrorist attacks from Jihadists, as demonstrated at Ft. Hood in a minor way. “Credibility” in the war on terror is also a problem, but in the opposite sense of what is meant above. The credibility we need is for our allies to believe we will continue to fight (you know, as in expend material and manpower in killing) along side them, and to convince our enemies we will do the same.
But lets, arguendo, assume that there we really do need to restore our “credibility” about terrorist treatment with someone who matters and can be swayed...
Would you explain who we have to restore our credibility with, and how this process will do so?
As has been amply pointed out in this thread, even if that were an important goal, this is about as dumb a way to go about it as I have seen.
We are going to gain their respect by:
1) giving vast rights to a few terrorists,including one who has already freely confessed;
2) having the highest legal official in the land proclaim, before the trial, that the outcome will be guilty with a sentence of death
2) adding that if these terrorists exercise those rights to successfully defeat the charges, we’re going to hold onto them anyway.
3) continue the policy that Bush started of military tribunals to try the rest.
4) continue the Bush policy of rendition of terrorist suspects to countries who don’t bother with little matters like torture conventions or human rights
5) continue the Bush policy of using robots to rocket civilian homes in a country we are not at war with
I can’t imagine anyone would be fooled by this when seeing all these points as a whole. Apparently there are a few on this board, however, who buy this nonsense.
One is left with the conclusion that either Holder and Obama are total idiots about how to conduct a war and how to convince people, or that they are perfidiously using this whole charade to get back at Bush (and energize their far left base), regardless of the cost to the nation.
Frankly, the answer has to be both.
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November 19, 2009, 8:07 pmDonald Sensing says:
When, if ever, was KSM Mirandaized? Is it unreasonable to expect that pretty much all statements he has made, including his year-old confession (boast) of masterminding 9/11, must be excluded?
The discovery danger is very real. It is not true that the Classified Information Protection Act gives the government the authority to exclude from discovery or courtroom use any classified info it says. The judge has to agree and has the authority under law to order discovery or disclosure if he wants. Nothing classified is actually protected under CIPA if the judge orders it disclosed.
This certainly will not be a speedy trial. I’ll not be surprised if Obama stands for reelection before the jury is seated.
The idea that jihadist propagandists’ mouths will be shuttered because KSM will get a civil trial is so ludicrous that I can’t believe it was offered seriously. Jihadists are radicalized Islamists and reject every form of justice except shariah. Civil court, military tribunal, all same-o same-o to them: infidel.
Finally, there is no benefit to the American people from trying KSM and the others in civil court rather than tribunal. I will not be better off or better protected. If anything, the rule of law will be degenerated, not enhanced.
There may be only one beneficial outcome: if even enemy, unlawful combatants captured in battle have to be Mirandaized and otherwise rights-protected in case they stand civil trial, then I guarantee there will be damn few live captures henceforth: “You have the right to remain silent.” Bang! “And so you are!”
More and more, I am coming to believe that the real accused in the docket is George W. Bush and Dick Cheney. I think that the ultimate fate of KSM is, to the present administration, beside the point. Bush and Cheney will be convicted in court to the satisfaction of the Left, and that will be the main point, even if KSM walks.
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November 19, 2009, 8:28 pmSG says:
I can’t imagine anyone would be fooled by this when seeing all these points as a whole. Apparently there are a few on this board, however, who buy this nonsense.
No kidding, they’re either liars or idiots. Well, I suppose they could be both...
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November 19, 2009, 8:38 pmhuxley says:
Good discussion. Special thanks to SG who keeps returning to the question which perplexes me. How are things improved by having this two-tier setup unless the motives are political?
I also don’t understand where Posner gets the rationale he imputes to Holder. Judging by the witless responses Holder gave to Lindsey Graham, I find it hard to believe Holder has thought this through much at all.
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November 19, 2009, 8:42 pmRichard Aubrey says:
John Moore.
I beg to differ. Nobody on this board is that stupid.
Some hope others are, though, and what they say elsewhere about this stuff is kind of interesting to think about.
“civics class for the illiterate” Good one.
Let’s keep in mind that this is supposed to show how great American justice is. Obama and Holder said so, so it must be true. When was the last time these guys lied, anyway? So it’s true.
Therefore, legal arcana are irrelevant.
What is relevant is what’s before the persuadable masses overseas.
KSM is guilty, will be convicted and executed, said the prez.
If he’s acquitted, he’s not going to be let go says Holder.
This is supposed to be an advertisement for US justice.
There are seventy-five guys going noplace.
If I didn’t know better, I’d think these clowns are stupid. But nobody’s that dumb. They’re trying for something OTHER THAN THEY CLAIM IS THEIR OBJECTIVE. They’re lying, in other words.
Once you accept that, everything falls into place except which, exactly, of the possible catastrophes is the aim.
BTW. Anybody watch Graham vs. Holder?
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November 19, 2009, 8:52 pmRicardo says:
Can you point to where exactly Congress “clearly” expressed its intent in the AUMF in this manner? The AUMF is not that long and you can access it here. And also where Congress removed the President’s discretionary decision making in terms of who goes free, who stays, and who gets tried in military v. civilian court? Our civilian laws against terrorism are still on the books and do not have a 9/11 exception.
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November 19, 2009, 9:13 pmMark Field says:
Yes, it’s unreasonable.
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November 19, 2009, 9:32 pmSG says:
Can you point to where exactly Congress “clearly” expressed its intent in the AUMF in this manner?
Sure. See the first line — “To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” Also see (emphasis added), “such acts render it both necessary and appropriate that the United States exercise its rights to self-defense”.
Congress expressed intent was this be responded to militarily (i.e., the military response is both necessary and appropriate). The military is explicitly barred from domestic law enforcement. Therefore, this was not a matter for domestic law enforcement. Since it’s not a law enforcement issue, domestic legal norms should not apply, but instead the law of war.
As I said, you can legitimately debate our obligations to these detainees under precedent and Geneva, but I don’t see how you can read the Congressional authorization as anything other than an explicit statement that the response to 9/11 was to be outside the realm of normal law enforcement. How else do you read it?
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November 19, 2009, 9:36 pmrpt says:
Good match: Holder 6-Graham 3. Kyl lost his match by default.
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November 19, 2009, 9:37 pmNew Pseudonym says:
Depends on what you mean by “English Law.” If you mean common law courts, IIRC the answer is no. They were tried by admiralty courts.
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November 19, 2009, 9:37 pmjr565 says:
Further, even Obama himself acknowledged my point above back in 2006 with the following:
You don’t say Barack, you don’t say. All of that rhetoric about the tribunals denying any and all rights to those captured, was simply theater. When its Barack’s turn he too goes for the tribunal for the vast majority of the cases, as realistically it’s kind of hard to try people on battlefields. It’s just that he also has to give a sop to his base (you for example) so has his justice department jump through hoops to try KSM in courts as the frenzied mob (you for example) was demanding without any claims to history or common sense to back up their ludicrous assertions. So now we have two standards of trials with different rights assigned to each. and if you get tried under the low standard you are essentially being tried under the Bush standard (which you guys thought was the equivalent of Stalinist Russi) and the civilian court standard. Does the fact that a select few get tried in courts negate all the arguments your side made about tribunals considering most people will continue to be tried under them? Or is everything hunky dory now that Obama is in charge?
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November 19, 2009, 9:37 pmMike M. says:
You do actually need to. You won’t because you are on the same side and would pretty quickly expose yourself.
That’s understandable from your perspective.
1) Evidence is mounting Obama is destroying America. 2) According to even his critics, he is ‘intelligent’. 3) The conclusion is then that the destruction is intended.
If a smart person was not intent on destroying America, that would be easy. Obama is taking no steps to restore the good, and every step he takes destroys it.
That’s called an argument whether you are man enough for it or not. I suspect not. You’d show your true colors in a short time if you even engaged. You don’t have the guts for it is my guess. Bullies never do.
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November 19, 2009, 9:44 pmMike M. says:
Arch, you are correct.
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November 19, 2009, 9:46 pmRicardo says:
Montoya is a civil case brought under a law that provided for compensation of property owners who sustained damage or loss “by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.” The question was whether or not the given Indian tribe was “in amity” with the U.S. under the law. It has nothing to do with questions of military commissions, Congress’ war-making powers, detention of combatants or any related issues.
I would point out if we are going to reference civil law in this discussion that insurance companies paid out damages to victims of 9/11 despite the clause in all insurance contracts that they do not cover “acts of war, declared or undeclared.” As far as I know, no company attempted to invoke the war clause to get out of paying up.
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November 19, 2009, 9:51 pmRicardo says:
No, a clear expression of intent would be something along the lines of “all those responsible for the attacks on the United States should be treated as enemies of the nation and be subject to military detention or trial by military commission as deemed appropriate by the President.” The AUMF never explicitly says anything about how the terrorists should be treated under the law. You can read between the lines about the supposed intent of Congress but to say that Congress “clearly” intended a particular result is simple argument by assertion.
As for your other assertions, since the attacks of 9/11 were launched from overseas, the question of using the military for domestic law enforcement does not arise by simple definition of the word “domestic.” Your notion that the military is never dispatched to a foreign country to apprehend a criminal to be tried in civilian court is false, though. General Pershing pursued Pancho Villa in Mexico for exactly this purpose (indicted by a Luna County grand jury in New Mexico for murder following a cross-border raid) and more recently, the U.S. military invaded Panama in order to render Manuel Noriega for trial on federal narcotics charges.
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November 19, 2009, 10:02 pmSG says:
Can someone detained by the military and then brought before an Article III court challenge their detention as unlawful because the military was acting in violation of the Posse Comitatus Act? By charging these detainees criminally, is Obama in violation of the act? He could be looking at up to 2 years in jail...
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November 19, 2009, 10:05 pmJohn Moore says:
Given the intent that was expressed, it is clear that Congress expected the military force to be used in its customary manner — by waging war. Part of waging war involves capturing enemy — both legal and illegal combatants — and dealing with them in military ways.
Are you aware of any other AUMF’s that contain explicit details on dealing with enemy personnel?
Also, you have failed to take into account Congress’ authorization of military tribunals to deal with exactly these defendants.
You are correct about the history of military use, but that history in this case is not significant.
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November 19, 2009, 10:10 pmRicardo says:
People like Noriega and Eichmann (in Israel) challenged their detention and failed: it is an old common law rule that courts generally do not concern themselves with the exact circumstances of how someone got to be brought before the court. An illegal or unlawful arrest does not make the person’s subsequent detention within the court’s jurisdiction unlawful. As for the Posse Comitatus Act, why don’t you research the exact provisions of that law and get back to us? I doubt it is implicated in rendering a foreign suspect for trial in the U.S. but can be convinced otherwise with actual citations [if you are right, then Reagan would have been guilty also].
I’m not aware of any other AUMFs that dealt with non-state entities. Are you? If so, we could look to whether or not the disposition of prisoners was dealt with in the text as well as look to the actual practice of the U.S. in dealing with the prisoners. Your claim that the history I cited “in this case is not significant” is just another argument by assertion. I’m not saying the U.S. is legally obligated to try KSM in civilian court. I am saying that the President has the discretion to pursue civilian criminal charges against KSM and that there is no statute or Constitutional provision to suggest otherwise.
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November 19, 2009, 10:39 pmJohn Moore says:
Well, if that is your argument (it certainly wasn’t clear before), then I withdraw my objection.
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November 19, 2009, 10:44 pmDennis says:
Anderson, thank you for your response to Brian G.
Brian G., I find your post confusing and contradictory to the statements just made by the President and AG. While they obviously disagree with the Bush approach, they also obviously do not disagree with the “appalling presumption of guilt” — from their statements, they clearly do not even countenance the possibility of anything less than conviction and execution, which is to say, that they would find acquittal to be a miscarriage of justice. And for that matter, were KSM to be acquitted, Mr. Holder has indicated that he will still not be released, presumably in recognition of the grave threat he represents. And beyond this, they have decided to retain some 75 terrorists without any trial at all, which must distress you to no end.
By the way, do you belong to the same firm as Lynne Stewart?
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November 19, 2009, 10:45 pmMunch says:
Are you kidding? A justice system that tries you in a high burden of proof court if they have lots of good evidence against you and a lower burden of proof court if they have less good evidence against you INCREASES CREDITIBILITY?
How about referring to a court that just convicts for those few cases where they have no evidence against you.
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November 19, 2009, 10:45 pmRichard Aubrey says:
Wow. Sounds as if there may be grounds to dismss the whole thing.
After which, KSM stays here. He may even be executed.
I recall people saying it was nuts to think KSM would be acquitted.
Yet here we have people discussing legal reasons for the case being dismissed on the grounds that nobody can figure out who’s supposed to be in charge.
I suppose it’s correct to say he won’t be acquitted. You have to have a trial to be acquitted.
I think the unpersuaded masses overseas may find themselves puzzled. After they stop laughing at us.
Yeah. Great advertisement, guys.
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November 19, 2009, 10:49 pmSG says:
I am saying that the President has the discretion to pursue civilian criminal charges against KSM and that there is no statute or Constitutional provision to suggest otherwise.
I agree with you as far as this statement goes. Congress has not asserted itself to the point where they have interfered with the CinC’s discretion over the handling of these prisoners (although they do have that right under the Constitution). But the AUMF did explicitly express the intent the 9/11 perpetrators be dealt with militarily. I will also point to the Military Commissions Act as further evidence of Congressional intent that these people not be tried in Article III courts.
I actually remember 9/11, don’t try to tell me that Congress did not treat it as an act of war. As recently as yesterday, Holder himself reaffirmed that 9/11 was an act of war and that the nation still considers itself at war.
I have never questioned Obama’s authority to do this. I just don’t believe any claims that this is being done to ‘restore the rule of law’ or any other such pious nonsense as is being spewed by some The law does not require a trial before an Article III court for KSM, Congress didn’t intended such a result and reaffirmed their intentions that this be under the military’s jurisdiction 5 years later.
So, if it’s not being done because the rule of law compels it (as thee two-tier system makes clear), and it isn’t being done to build confidence in our system (because the two-tier system makes a mockery of any claims that KSM’s treatment signals some higher moral standing, not to mention that Holder and Obama have essentially pre-judged the outcome), and it’s being done in contravention of the expressed Congressional will, why is it being done?
No one here has been able to provide any rationale for this decision that doesn’t in some way reference George Bush. Any rationale that invokes George Bush to justify this action reaffirms my belief that this decision was made in bad faith. If every detainee were getting an Article III trial, such an argument might hold water, but not this current ad hoc procedure. Obama’s defenders have convinced me that this Obama is just playing politics with our national security.
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November 19, 2009, 11:22 pmJohn Moore says:
SG...
Well said. It’s just awfully hard to construct an argument that this is a result of good faith reasoning (unless its extremely idiotic good faith reasoning, which might be possible).
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November 19, 2009, 11:37 pmAndrew J. Lazarus says:
The Bush Administration had a number of plans for tribunals, and at each revision public opinion, Congress, or the Supreme Court forced them to grant more rights to detainees. By 2006 Congress was at first looking at a good bill that would have brought the system into obvious compliance with the Geneva Convention, until the Cheney/Bush Administration got John McCain to flip-flop for his own electoral reasons. (Wanted to get elected is not a liberal-only thing.)
All these conservatives thinking they’ve found something in Obama’s casual assumption that KSM will be found guilty (definitely the way to bet) and executed (likewise)—where were you when Donald Rumsfeld announced that we had the “worst of the worst” in Gitmo with such confidence that there were no plans for any sort of tribunals at all? (Unlike the claim of KSM’s guilt, this turned out to be a wild overstatement, as the Administration itself eventually admitted.)
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November 20, 2009, 12:25 amAndrew J. Lazarus says:
Two members of the Bush DOJ come out in favor of (or at least tolerant of) trying KSM in Federal Court. They also remind me, which I had quite forgotten, that the Shoe Bomber was tried in civilian court without the sky falling in. Fancy that!
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November 20, 2009, 12:53 amRicardo says:
I don’t disagree with any factual claim you make above. But it’s a problem for you that Holder — America’s top prosecutor — came out in public saying he is confident he will get a conviction for KSM? Scandalous! As for Obama, I suppose some would rather he made some tepid public statement like, “We are confident that justice will be served in our federal courts.” But that’s lame. Someone is inevitably going to follow up with “What if KSM is acquitted”? The President is within his rights to reassure the public that that will not happen. It is too high profile a case to not comment on.
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November 20, 2009, 2:10 amBrian G. says:
I do not belong to the same law fim as Lynne Stewart, who by the way is another victim of the Bush Administration. All she did was zealously advocate for her client. Bush couldn’t have that.
The Bush Administration needs to be put on trial. What they really need is to be rounded up and tried at the Hague, but the KSM trial is unfortunately the only way it could be done. If KSM is found innocent and Bush is theoretically convicted, then justice will have been done as the American people deserve to know the truth about Bush and his war crimes.
And, by the way, since when have you right wingers consiered Al Jazeera a credible source?
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November 20, 2009, 2:39 amGaryC says:
This is a fairly simple mistake. Gen. Wesley Clark has no law degree and has never taken, let alone passed, any bar exam. He is extremely unlikely to ever serve as a defense counsel for anyone.
Ramsay Clark, on the other hand, is a lawyer who is famous for defending the indefensible, including both Slobodan Milosevic and Saddam Hussein. (He is also a former Attorney General, but LBJ is responsible for that.)
I think it is fairly obvious which person Maureen was thinking of in her comment.
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November 20, 2009, 3:35 amletter of marque says:
Wrong. That was only a part of the question. The main question was whether a “band” of Indians that is independent of tribes in amity with the United States may commit an act of war — and the Court answered ‘Yes’ to that question.
It was not merely a civil case, but a case concerning the nature of acts of war. Surely you’re not so naive as to suppose that a case can’t touch on multiple issues and areas of law at once.
Your claim that the case has nothing to do with Congress’s war-making powers is simply false, as Montoya cites Bas v. Tingy — a war powers case — and holds that a declaration of war is not a necessary precondition for the commission of an act of war.
I think you have neither read nor understood the case, as is evident from your short and inaccurate shrift given to it.
Except you are not referencing civil law, or any law at all. The fact that no insurance company has attempted to do so — for obvious PR reasons — does not make 9/11 not an act of war. It just makes such attempts to “get out of paying” unlitigated. Which is really just another way of saying: ‘I have no cite but I’m going to pretend that the behavior of private firms constitutes legal precedent that trumps contrary case law that speaks directly to the issue.’
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November 20, 2009, 4:59 amRichard Aubrey says:
Lynn Stewart was not convicted for zealously advocating anything. She was convicted for passing information and directions from her already-convicted client to terror organizations.
Brian G. knows better but hopes, by repetition, to convince the gullible.
I have to say, guys like Brian keep trying and, through dedication and sheer perseverance, might just define reality.
Ricardo misses the point that this is advertised as a show-off trial. See how cool the US justice system is? He seems to want us to not notice that when you are doing a show-off trial, you don’t show off that the fix is in beforehand. Otherwise, it looks to the unpersuaded masses overseas like a show trial instead.
And we have it on good authority, Obama and Holder, that the point of all this is to show off our justice system.
They screwed up.
Now, no matter what Ricardo and others say, and no matter what they insist we should think, the whole thing’s been poisoned. As a show-off trial, that is.
Show trial...looks pretty good for a show trial.
And that’s supposed to positively affect our position in the world?
There’s a certain point where prudence suggests abandoning a losing position, especially when you can’t bill for supporting it. Letting it drag you further into nonsense–with no billable hours in compensation–seems like a bad idea. Drop it and go on to something else, hoping others will eventually forget your position. Just some advice.
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November 20, 2009, 7:45 amdavod says:
“I do not belong to the same law fim as Lynne Stewart, who by the way is another victim of the Bush Administration. All she did was zealously advocate for her client. Bush couldn’t have that.”
Stewart advocated for her client and people died in Egypt.
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November 20, 2009, 8:55 amSG says:
But it’s a problem for you that Holder — America’s top prosecutor — came out in public saying he is confident he will get a conviction for KSM? [...] The President is within his rights to reassure the public that that will not happen. It is too high profile a case to not comment on.
As Richard Aubrey said, this is only at issue because people are claiming that the decision to bring KSM (although not all alleged jihadis) before an Article III court is to convince the world that the US is (now) a just nation or other such nonsense. If this were Obama’s intention, then he and and Holder making statements than can easily be read as saying the outcome is predetermined directly contradicts that stated aim.
I don’t object to their statements; I only mention them because the invalidate the most common good faith explanation of the Obama administration’s decision. It reinforces my (now held) belief that this decision was made in bad faith.
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November 20, 2009, 9:15 amDennis says:
Apparently the courts do not agree with you. And that is the appeals courts, by the way. She is guilty of aiding and abetting terrorism. Finally in jail where she belongs.
Perhaps you could move past the venom just long enough to respond to the question. Again, how do you reconcile your “appalling presumptiom of guilt” accusation with the President and AG’s very clear just same presumption?
And . . . I never did get straightforward responses from anyone to the central questions I summarized in my post yesterday (3:59). These questions are not the ravings of the far-right; they are the same questions reasonable people across the spectrum are asking.
I do however commend you for your candor. Being from San Francisco, this viewpoint and tone is quite familiar. Like a great many Independents, I would appreciate such candor during the political campaigns, so that the electorate can see the true thinking at work.
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November 20, 2009, 9:17 amRichard Aubrey says:
Dennis.
I hope we’re not presuming Brian G believes himself???
That would be an insult to his intelligence.
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November 20, 2009, 9:22 amSG says:
All these conservatives thinking they’ve found something in Obama’s casual assumption that KSM will be found guilty (definitely the way to bet) and executed (likewise)—where were you when Donald Rumsfeld announced that we had the “worst of the worst” in Gitmo with such confidence that there were no plans for any sort of tribunals at all?
This isn’t the gotcha you believe it is — you’re simply missing the point (see my comment to Ricardo above).
I don’t care that their prejudged by the executive branch. I don’t believe foreign nationals require any due process if we’re only intending to detain them for the duration of Congressionally declared hostilities (although they are entitled to some degree of due process — but not a criminal trial before an Article III court — if we wish to hold them beyond the end of hostilities.) If the military believes the nation’s security is enhanced by holding them, that’s sufficient. The notion that a POW starts with a presumption of innocence and full constitutional rights and the military has to prove in open court beyond a reasonable doubt that the prisoner is guilty of a violation of US domestic law is completely ahistorical.
None of which is to say that we wouldn’t want to provide more (fairer, more open, whatever) process as a matter of policy, or that Congress couldn’t compel more due process for these detainees, or that the Obama administration is not within their authority to treat KSM this way. Only that the logic behind this decision appears to be from bizzaro world.
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November 20, 2009, 9:29 amRichard Aubrey says:
Seems Obama has now said it was Holder’s decision.
Ashcroft made the unexceptionable observation that Holder, a cabinet level officer, may not give orders to Gates, a cabinet level officer.
Now, before people get their snark warmed up on account of Ashcroft saying this–as a distraction from the real question which is...can Holder actually make this decision...?
IOW, Obama’s lying about this.
Unless Holder “made the decision” and presented it to Obama who okayed it.
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November 20, 2009, 9:42 amdavod says:
Does Holder have a conflict of interest. His old firm:
“Putting on the best terrorist defense is a Covington & Burling specialty. Among the firm’s other celebrity terrorist clients: 17 Yemenis held at the Guantanamo Bay detention facility. The law firm employed dozens of radical attorneys such as David Remes and Marc Falkoff to provide the enemy combatants with more than 3,000 hours of pro bono representation. Covington & Burling co-authored one of three petitioners’ briefs filed in the Boumediene v. Bush detainee case, and secured victories for several other Gitmo enemy combatants in the U.S. Court of Appeals for the D.C. Circuit. Falkoff went on to publish a book of poetry, Poems from Guantanamo: The Detainees Speak, which he dedicated to the suspected terrorists: “For my friends inside the wire, Mahmoad, Majid, Yasein, Saeed, Abdulsalam, Mohammed, Adnan, Jamal, Othman, Adil, Mohamed, Abdulmalik, Areef, Adeq, Farouk, Salman, and Makhtar. Inshallah, we will next meet over coffee in your homes in Yemen.”
How sweet. One of the class of Yemeni Gitmo detainees that Falkoff described as “gentle, thoughtful young men” was released in 2005—only to blow himself up (gently and thoughtfully, of course) in a truck bombing in Mosul, Iraq, in 2008, killing 13 soldiers from the 2nd Iraqi Army division and seriously wounding 42 others.”
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November 20, 2009, 10:07 amRichard Aubrey says:
Davod,
I think Falcoff’s puffery would be described by Brian G as zealous representation.
The dead...?
Collaborators.
Non-people.
Not a problem.
Bush sympathizers.
The price we pay....
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November 20, 2009, 10:14 amAndrew J. Lazarus says:
(1) What Obama and Holder have to say doesn’t count as much as what the jury has to say. Unless you want to make the further claim that ACORN will insure the jury follows Obama and Holder’s orders, their pretrial statements are no more meaningful than every manager in the league claiming his team will win the pennant. (2) and (4): Detainees not convicted of crimes can be held as lawful POWs in conditions consistent with the Geneva Convention. In particular, those conditions will be more generous than what they initial received—as I pointed out, the original Rumsfeld position was that we had captured “the worst of the worst” for whom no sort of review or tribunal was necessary and whose conditions of confinement did not have to meet any international or treaty standard. (3) Governments make decisions like this all the time: whether to try an ordinary criminal in state or Federal court (if both are possible), whether to file charges at all in a marginal case, timing of politically charged indictments, etc. It has only become controversial, AFAICT, when white male Republicans are not in charge of making these decisions.
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November 20, 2009, 10:36 amSG says:
It has only become controversial, AFAICT, when white male Republicans are not in charge of making these decisions.
When your argument has devolved down to veiled charges of racism, you’ve lost. You should shut up and go away — you’re not only embarassing yourself, you damage the credibility of the position you’re intending to defend.
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November 20, 2009, 10:42 amRichard Aubrey says:
Andrew.
Missed again.
The question is whether this is supposed to be a show-off trial or a show trial.
Given the statements by Obama and Holder, it was supposed to be a show-off trial but, as Dennis points out, this is impossible considering the fix-is-in statements made by Holder and Obama.
It is now a show trial irrespective of whatever happens in court.
What happens in court is almost irrelevant after Holder and Obama have poisoned the well–speaking of the example to the unpersuaded masses overseas which is the ostensible reason for this clustercrunch.
So whether they’ve poisoned the well in terms of the court hearings doesn’t matter.
Their supposed goal is toast, and they toasted it.
It only remains to speculate whether it was deliberate or a matter of their shattering innocent ignorance.
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November 20,