Sonicfrog: Because of the poor quality of the text, and the lack of a specific target, finding the source of that pdf.

You could have tried Googling the title (in quotes). That’s what I did (to find it again).

Cheers,

JK

Because of the poor quality of the text, and the lack of a specific target, finding the source of that pdf. would have simply taken more time than I have to spend on such ventures. Have to go play with the Black Capped Lorikeet now. She’s screaming for attention.

geokstr: Zuch, it must really be a joy to have a live conversation with you.

Not for someone of your ilk. For obvious reasons.

Cheers,

Will Wills: I am surprised Holder didnt show up at his bond hearing and suggest he be released on his own recognizance.

This is your problem, not ours. Keep it under your hat; thanks in advance.

Cheers,

Sonicfrog: I’m not saying it’s fake. I have no idea. But what the heck is that doc. There is no title page, and the quality of the copy. it doesn’t look anything like a gummint doc. should.

Ahhh, yes, the kerning’s off. My bad.

More on it here and here. Google is your friend.

Cheers,

Zuch, it must really be a joy to have a live conversation with you. Do you try to overpower or outscream everyone you talk to in person as well, or demonstrate your clearly superior intellect by countering every clause and phrase in your opponents’ statements at length, one at a time?

Interrogations without a Miranda warning or after a warning are only an issue if the statements are being used against a person in court. As you all should know, you have no right to take the 5th, for example, if you are granted immunity from prosecution.

Since the physical and eyewitness evidence against the Christmas bomber is overwhelming, there is no need to enter any of his statements into the criminal trial. Simply interrogate as much as you’d like while and after the criminal trial is done. Just don’t use the info in the criminal trial, use it for intelligence.

Speaking of which, why is what the bomber did and didn’t say being released? Is it me or shouldn’t this stuff be classified? Shouldn’t Al Qaeda in Yeman be made to at least sweat a little bit at the possibility their bomber might have given up what he knows about them?

Sonicfrog: And what the heck is the origin of that pdf. That looks worse than the Rathergate documents.

Your gummint.

Assuming you were asking about my link in this comment above.

Cheers,

JK: …a Nigerian citizen who committed a crime in the US…

What crime did he commit in the US? The criminal act, that of trying to blow up the plane, happened aboard a plane bound for the US which had entered US air space, in the manner which a ship would enter US territorial waters, but not landed when that attempt was made, it all happening before anyone passed through customs, and thus was admitted to the US. Isn’t that legally consequential? Wouldn’t things have been very different legally for Maher Arar if he had been allowed through customs at JFK, rather than denied admission there and put on a plane to Jordan?

No. There is no constitutional protection against being interrogated for national-security purposes w/out a lawyer present, provided that information is not used in a criminal prosecution.

Natural gas:

a). Doesn’t explode if all by itself.

b). Smells funky.

Setting it to blow up on a timer has … well, some deficiencies in planning.

Not to mention, attaching metal plates to anything inside ain’t gonna do anything. That’s sheer physics. You’ve got stuff blowing up on both sides of the plate. What result?

This is kind of like the “swing a bucket for Allah” idea. Did you see that they wanted Padilla to construct a nukular bomb?(!!!) Dismissed as impractical, you know; they then started thinking “dirty”. Kind of on the same level as torches on the Brooklyn Bridge….

Cheers,

The only problem is getting past the credit check if the same person tries to rent multiple apartments in the same city. The rest of the operation requires simply some training and parts you can mostly buy at Home Depot. It is in some ways an elegant plan and, based on the AQ motto “if at first you don’t succeed …” I would not be surprised if they don’t eventually carry it off with a different crew and maybe a different target.

Howard Gilbert: Plus, of course, Padilla was the lead operator in the next attack on the US (“the apartments operation”) by the people responsible for 9/11 and by capturing him the US prevented the attack.

Which has what to do with the merits of interrogating him?

Cheers,

I still fail to see how Padilla became “one of the most important intelligence assets of the war”. Even assuming arguendo the facts as you state, doesn’t say much for our intelligence.

BTW, who else was arrested in the “apartments operation”? Oh …. no one. Right. It had been scotched at one point as being undoable. And to be honest, it was one of the more hare-brained schemes….

Cheers,

Howard Gilbert:

[zuch]:
And the idea of not giving a criminal suspect (and U.S. citizen) a lawyer when he asks for one seems … well, a little behind the times,…blockquote>
Except Padilla was not a criminal suspect. He was a Grand Jury witness.

And why should a “material witness” be denied a request to talk to a lawyer? Just because it’s … ummm, “convenient”?

Howard Gilbert: He never was charged with any crime for anything done after that date, nor did the government ever say he was being held as a suspect or that he even could be charged with a crime.

… because that might have involved making his detention public and getting lawyers involved. Of course, in the end, they did seek to try him, when their bluff had been called.

Cheers,

zuch:
Padilla “bec[o]m[ing] one of the most important intelligence assets of the war”.I’m failing.Someone help me

Padilla was transferred to KSM around March 15 and spent two weeks in last minute training before he leaves for Cairo and is picked up by US intelligence April 1. Abu Zubaydah is captured on March 28, is subject to normal interrogation, then enhanced interrogation. At some point he tells the US that the person responsible for 9/11 previously known by an alias is actually KSM. We don’t have an exact date, but it seems likely that the US only learned about KSM a week or so before Padilla is arrested by the FBI.

So imagine what it must have been like to be in the room with Padilla when he tells them that during the two weeks before he went to Cairo he was in a crash course with KSM, Ramsey Binalshib, Amar Al-Baluchi, Mustapha al-Harsawi — you know, the guys responsible for 9/11. And they gave him disposable cell phones, E-Mail addresses, electronic funds transfer instructions, travel documents, and a cover story exactly like they did for the 9/11 hijackers. He knows what they look like, what skills each one brings to the operation, and how everything was done.

Padilla has actionable intelligence against the people responsible for 9/11, the guys who are number 3, 4, 5, and 6 on America’s most wanted list. People who the FBI didn’t really know existed a week or so earlier. This was a fabulous intelligence win.

Plus, of course, Padilla was the lead operator in the next attack on the US (“the apartments operation”) by the people responsible for 9/11 and by capturing him the US prevented the attack.

zuch:
And the idea of not giving a criminal suspect (and U.S. citizen) a lawyer when he asks for one seems … well, a little behind the times,

Except Padilla was not a criminal suspect. He was a Grand Jury witness. You never have a right to a lawyer while testifying before a Grand Jury. Your only right is to invoke the Fifth Amendment. If you are immunized so that nothing you say can be used against you in a criminal proceeding, then you have absolutely no right to a lawyer. Instead, you are obligated to answer under oath any question put to you by the Grand Jury. When you are released, you can be sure that you will never be a criminal suspect for anything discussed before the Grand Jury (in Padilla’s case for anything he did after July 24, 2000, the day he enlisted in the Army of Afghanistan).

Padilla never made it to the Grand Jury, and he never formally got a grant of immunity. However, the government acted as though he was immune. He never was charged with any crime for anything done after that date, nor did the government ever say he was being held as a suspect or that he even could be charged with a crime. He was, of course, convicted of old felonies he committed mostly between 1996 and 1998 but involving nothing after his enlistment date.

11-B.2O/B4: Not a US citizen, trained by (and therefore ostensibly a member of)a non-state entity which has declared war on the US. This isn’t rocket science people. He does not have the same protection that a US citizen does. He is an enemy combatant, to be treated as such. If he WAS a US citizen, we could charge him with treason on top of it all, but we’d have to Mirandize him.

I was listening to an interview on Bill Handel’s show of a 22 year JAG talking about this case last week. His contention was that this is a very ridged matter concerning jurisdiction – Abdulmutallab committed a several federal crimes, was apprehended by the FBI, and therefore was arrested as a criminal, and contrary to popular belief, even the President can’t just decide to move his status from one to the other. He made another point but I don’t remember it. Damn, I wish I would have blogged it when it was fresh in my mind. Anyway, the guy did present a pretty detailed case as to why Abdul could not have been moved to “enemy combatant” status.

Howard Gilbert: Padilla is a concrete example of the potential disastrous consequence of inappropriate Miranda. He stated that if he had been given a lawyer he would have shut up and said nothing. When he was not given a lawyer, he became confused and nervous, started talking, and became one of the most important intelligence assets of the war.

I’m trying to get my head around the concept of Jose “Swing a Bucket and Collect the HEU” Padilla “bec[o]m[ing] one of the most important intelligence assets of the war”. I’m failing. Someone help me.

And the idea of not giving a criminal suspect (and U.S. citizen) a lawyer when he asks for one seems … well, a little behind the times….

Cheers,

Bohemond: Suddenly KSM was singing like a canary, including info that was essential to uncovering the 2006 Airliner Plot and saving the lives of 1500–2000 passengers.

Huh?!?!? Where’d you make this up?

Cheers,

[Kevin R.C. O'Brien]: What all these bright and opinionated lawyers are missing is that there are prisoners, and then there are prisoners. There are at least three categories of people recognized in law, who might come into the hands of law enforcement or internal-security forces:
1. suspects under law
2. prisoners of war under Article 3
3. unlawful combatants under Article 3, sometimes called francs tireurs under earlier rule of law.

What is this “Article 3″ of which you speak?

[Kevin]: The US did not mirandize or try lawful combatants who fell into our hands, whether in the War or 1812, WWII, Korea or Iraq (there have been trials and even executions of POWs for misconduct while POWs.

As I pointed out above, no need to Mirandize anyone if you’re not going to try them. And you’re not going to try POWs generally.

[Kevin]: People in Category 3 have traditionally been (entirely lawfully) shot or hung out of hand, or after a summary court in the field, or (if held longer and in a more structured environment), after trial by a military commission. This is the entirely lawful process by which Washington had André shot, Roosevelt had the New Jersey Nazis hung, and Eisenhower and Bradley disposed of Skorzeny’s US-uniformed infiltrators at the Battle of the Bulge, and of would-be Werwolf guerillas after Allied forces began to occupy German territory. The wall or the gallows has been the destination of spies and saboteurs.

No. See my prior comment. And see Common Article 3 of the Geneva Conventions:

Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(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.

This applies to all held hors de combat.

[Kevin]: It’s clear from some of the comments that one can be quite well-informed about constitutional law, and entirely in the dark on the law of warfare.

You’re not among them.

Cheers,

To Hayek With You: Ask a WWII vet what they did with enemies found dressed as civilians who tried to blow things up behind the lines.

All but one such case of summary execution were done by the Axis powers, Nazi Germany or Japan (see here for some discussion and references). Hardly an exemplar of behaviour we should follow. In the one case of U.S. soldiers executing Nazi soldiers out of uniform, some of the soldiers were summarily tried and executed; the mission commander however was acquitted of war crimes.

Cheers,

Michael Smith: These attackers are clearly enemy combatants …

Actually, no. What they are is clearly criminals. I hope you’re not suggesting that what they [allegedly, but obviously] did is not a crime under U.S. law and the laws of war (if applicable). Whether they are “enemy combatants” (and whether that should make a difference) is a much more nuanced analysis.

Cheers,

There are two examples (Jose Padilla and Ali al-Marri) of people initially detained in the criminal justice system but who, after investigation, were determined to be unlawful enemy combatants and were transferred to military custody. It was sheer luck that Padilla was detained at first as a category of person not entitled to Miranda warnings (a material witness who was to appear before a Grand Jury) and was therefore denied access to a lawyer even when he asked for it. Anything he said would not be admissible against him in a criminal proceeding, but he was not a criminal suspect and was to have been immunized in exchange for his Grand Jury testimony anyway.

Padilla’s case in May 2002 shows that the FBI after 9/11 was able to get this sort of thing straight, at least if they had a month to plan things out as they did between Padilla’s acquisition by US intelligence in Cairo on April 1 and his arrival in the US a month later.

Padilla is a concrete example of the potential disastrous consequence of inappropriate Miranda. He stated that if he had been given a lawyer he would have shut up and said nothing. When he was not given a lawyer, he became confused and nervous, started talking, and became one of the most important intelligence assets of the war.

At the same time, Padilla’s treatment was not due to any expectation that he would be detained as an enemy combatant. This is one place where treating someone the way you treat members of the mafia instead of the way you treat enemy soldiers worked out for the best. Using a trick common with organized crime, to immunize some low level mobster and then drag him in front of a Grand Jury to answer questions about the mob, the FBI stumbled into capturing an enemy combatant by utilizing the one tool of criminal justice that cancels out Miranda.

Michael Smith: The issue here is that the combat wing of Islam — as represented by Al Qaeda and similar groups who enjoy at least the tacit support of many sympathetic governments in Muslim countries — has declared war on the U.S. with the stated goal of toppling our government and erecting a totalitarian Islamic theocracy in its place. Sure, it’s an insane goal….

[assuming arguendo the facts as stated, which is not in the least obvious] “… which means we should treat it just the same as Yamamoto, four aircraft carriers, the biggest battleships the world has ever known, and hundreds of thousands of armed troops attacking and destroying many of our capital ships, the cities of our allies, and invading and occupying one of the largest countries in the world….”

I’m sure they appreciate the compliment. Probably does much for their stature and recruiting too.

Treating al Qaeda as the “combat wing of Islam” is also a winning policy. Next year, Jerusalem, to borrow a phrase.

Cheers,

ShelbyC: Who’s suggesting we do anything contrary to the constitution or BoR?

Those that think that war criminals ought to be treated as anything else than criminals. Giving them the status of “combatant” is far more than they deserve. Calling them bone-headed criminals is closer to the truth, but of course this doesn’t serve the purpose of the “Terra-ists are coming for you! They’re under your bed! Be scared and trust us! Elect us, we talk like Kiefer Sutherland! Boo!” crowd.

Cheers,

The easy answer: Abdulmutallab was a sad sack. Treat him with some respect and friendship and folks like that usually tell everything.
But treat him as we did, as a criminal, and he stops talking at all.

Here’s Cassell’s proposed solution:

[Otis]: The United States Attorney can dismiss the indictment against Abdulmutallab and turn Abdulmutallab over to the armed forces of the United States. I see no reason why Abdulmutallab can’t be detained as an enemy combatant available for questioning as the president sees fit. Unless I’m missing something, it’s not too late to try to rectify the mistake.

[Cassell]: This seems like perfectly sensible advice to me.

“[A]s the president sees fit” under Dubya was waterboarding. Abu Zubaydah was reportedly co-operating until the heavies stepped in and started treating him with some aqueous “respect and friendship”.

I really think you have the situation backwards.

Cheers,

The easy answer: But we don’t want terrorists to confess to a crime. We want to prevent more attacks.

Yes. See my prior comment.

Cheers,

What is a “Kossite”?

I think he misspelled it. I’m sure he meant to refer to the group which took over Babylon at the fall of Hammurabi’s dynasty.