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Obama Administration to Create Hybrid System to Try Gitmo Detainees?:
The Associated Press reports on preliminary planning among Obama advisors about what to do with the Gitmo detainees:
  President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice. . .
  Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.
  A third group of detainees - the ones whose cases are most entangled in highly classified information - might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. . . .
  The plan being developed by Obama's team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees.
  I think there are a range of plausible ways to handle the Guantanamo detainees, and the devil is in the details. But I tend to think a hybrid system like this sounds promising. Plus, it's a breath of fresh air to have an incoming President who actually plans to act on Gitmo rather than preserve the status quo.

  Thanks to How Appealing for the link.
FantasiaWHT:
So the only real difference is that the trials are civil and in the US instead of military?
11.10.2008 10:58am
Oren:
That's quite an endorsement coming from a Bush apologist!
11.10.2008 10:58am
Richard Aubrey (mail):
Won't be necessary.
The NYT has said there are some really bad dudes there, with solid intel as to their badness and the difficulty of letting them go.
And Gitmo is no Gulag, either, according to the NYT.
So it's all good.
11.10.2008 10:59am
Anderson (mail):
from Democrats who oppose creating a new court system with fewer rights for detainees

I'm open to being convinced that the United States district courts can't try "cases entangled in highly classified information," but I don't think that the proposition should simply be taken for granted.
11.10.2008 11:03am
Constantin:
Good, Orin. I hope the trials are in your neighborhood and not mine.
11.10.2008 11:05am
Anderson (mail):
Good, Orin. I hope the trials are in your neighborhood and not mine.

Sad to think of your missing jury duty for KSM, Constantin.
11.10.2008 11:10am
paul lukasiak (mail):
unfortunately, "justice" for the Gitmo detainees is virtually impossible at this point --- and efforts to try them in US courts don't make much sense at all. The best course of action would be to turn over the Gitmo detainees to an international criminal tribunal, and let them sort it out.
11.10.2008 11:17am
Richard Aubrey (mail):
Lukasiak.
An international court isn't going to have much luck. Not the kind we'd like.
Muslim nations would insist on representation.
Western nations, or at least their liberal folks, will be upset at letting these guys go, since some of the places they'll be let go to will execute them (Uighurs, ex.)
Two possibilities. Let them go in the custody of al Q, or in the neighborhoods of western nations far from the judges' residences.
11.10.2008 11:23am
Steve:
We definitely need to come up with a system that has some legitimacy. I was hoping for Judge Mukasey to make an effort towards designing such a system after he was appointed AG, as he has vast experience in the real-world problems occasioned by terrorism trials, including classified information and the like. Hopefully his input will be sought by the new administration either way.
11.10.2008 11:28am
mm (mail):
The best course of action would be to turn over the Gitmo detainees to an international criminal tribunal, and let them sort it out.

=let them go after lengthy and expensive show trials.

If the detainees were asked if they would prefer SuperMax on the mainland vs. Gitmo, I wonder what they'd say.
11.10.2008 11:29am
Cornellian (mail):
That's quite an endorsement coming from a Bush apologist!

A leading Bush apologist! Give Mr. Kerr his due.
11.10.2008 11:30am
cboldt (mail):
The United States Courts are rather far along in fleshing out a hybrid justice process based on "a new wheel," the Military Commissions Act. And now a suggestion to craft another layer of "new" on top of that! It sounds more like "confusing" than "promising."
.
Looking forward, I'd like to see what qualifies for being handled as a "national security case." There is no way "creation of a controversial new system of justice" would be undertaken to handle only the number of cases now in hand.
11.10.2008 11:30am
JP_ (mail):
I see you plan on becoming a leading apologist for the radical and lawless policies of the incoming Obama administration. {/sarcastro}
11.10.2008 11:33am
DDG:
There's a clear, perverse realist lesson in the Gitmo mess for future administrations: take fewer prisoners. There would be no issue if these guys were dead on the battlefield. But corpses have lesser intelligence value. Choices, choices.
11.10.2008 11:38am
Bob from Ohio (mail):

Democrats who oppose creating a new court system with fewer rights for detainees


You want maximum rights for your pals.
11.10.2008 11:45am
Johnny Canuck (mail):
DDG: Isn't part of the problem that many of the prisoners were never on a battlefield, they were turned in by bounty hunters?
11.10.2008 11:45am
PLR:
The United States Courts are rather far along in fleshing out a hybrid justice process based on "a new wheel," the Military Commissions Act. And now a suggestion to craft another layer of "new" on top of that! It sounds more like "confusing" than "promising."

There may be a meaningful number of criminal defendants that would be subject to immediate release due to prosecutorial misconduct or the exclusion of evidence obtained by torture. While releasing them would serve the interests of justice, it probably wouldn't serve some other interests that we value highly.

As for the Uighurs and others who have committed no crime, Congress may have to develop a new classification that allows them to remain the U.S. as permanent residents. 欢迎到我们的国家。
11.10.2008 11:51am
Anderson (mail):
efforts to try them in US courts don't make much sense at all

Why not?

What is wrong with the United States courts? Or is it enough nowadays to pooh-pooh them without any argument?

I certainly reject any international tribunal. These guys didn't commit crimes against the international community. They hijacked American planes, in American airspace, and struck American targets. Why on earth should any court but an American one try them?
11.10.2008 11:52am
PLR:
There's a clear, perverse realist lesson in the Gitmo mess for future administrations: take fewer prisoners. There would be no issue if these guys were dead on the battlefield.

I agree with the "perverse" part.

It's all the administration's fault for trying to create a limboland in Cuba where allegedly no laws apply other than the law invented by the captor.
11.10.2008 11:57am
ForMeItWasEasy:
Anderson: ".... I'm open to being convinced that the United States district courts can't try "cases entangled in highly classified information," but I don't think that the proposition should simply be taken for granted...."

Let me see if I can help here. In the case of any access to any classified information, a background check has to be done on any and all participants. This isn't an inexpensive proposition when you consider the number of judges, defense and prosecution attorneys that would be involved. There still would be zero "observers" in the court room, so what is the difference if some special courts are built that have these people "pre-cleared," one time, and at a one time expense to us taxpayers?

One thing to keep in mind, and very few people seem to understand, when you are dealing with classified information it often IS NOT the information itself, but the method used to collect it that is actually classified. The problem here is how identifiable would be "the method used to collect" if the seemingly inconsequential information becomes generally known?

Example: "....... Osama was in the outhouse at 11:40am...." You might LAUGH that this piece of seemingly silly info would be very highly classified. But it really isn't. In that case it isn't the info itself, but how and where it was collected and how many other ways it could have been collected that is so highly classified. If there is only ONE way, that was is going to be exceptionally highly classified. In this case, a microphone in the outhouse, for example.

Ok, silly example, but it explains something many people aren't aware. This is why we have to be exceptionally careful about who has access and to ensure that access is minimized. Look, the bad guy (Osama) found out we were actually tapping his cellphone conversations and he hasn't used one since, where he used it so freely prior to 9/11. THAT is why those things need to be classified and no other reason.
11.10.2008 12:06pm
cboldt (mail):
-- Plus, it's a breath of fresh air to have an incoming President who actually plans to act on Gitmo rather than preserve the status quo. --
.

Some of that "action" is in the form of argument and posture toward detainees. Modification or change in stance as against individual detainees (or groups of them) can be advanced without resorting to the effort of crafting new process of adjudication - and from the description, the proposed "new" process would be a form of "secret court," to handle the "secret evidence."

.

One of the reasons the current administration appears to be one intent on preserving status quo is that it argues in circles as to why it has the right to keep a detainee. Change the argument, and the appearance of "status quo" will dissipate.
11.10.2008 12:07pm
Howard Gilbert (mail):
The Executive may propose new systems, and Congress can exercise its authority to assign jurisdiction to Article III courts. However, you still have to determine the legal fundamentals in each case. Guantanamo detainees may fall into any of three basic categories, each with their own constraints under US and International law:

Some detainees were soldiers like Yasir Hamdi who served under the Taliban on the front lines against the Northern Alliance. Arguably they should have been given protection under the Third Geneva convention as POWs. The administration has resisted this, and as long as the cases remain under Article II control the Presidential finding has not been seriously challenged. An Article III court may have a different opinion. Since Geneva III prohibits a captured soldier from being tried for civilian crimes in a civilian court, any proceeding for such a detainee would have to be either 1) a civil proceeding to determine if he is an enemy combatant, or 2) a hybrid trial in which a civilian judge enforces military law should any enemy soldier be accused of war crimes. Alternately the proposed policy could be altered to allow continued use of Military Commissions or regular Courts Martial. KSM and the other 9/11 planners are the most prominent detainees who may fall in this category.

Some detainees could be classified as Civilian Internees. It has not been made clear, but I think that all Guantanamo detainees are currently regarded as CIs, since military regulations only provide for EPWs (Enemy Prisoners of War) and CIs and no detainee is regarded as an EPW. CIs are protected by Geneva IV. US regulations only require a commissioned officer delegated authority by the Theater Commander authorize such detention in writing for security purposes. There is a mandatory review of each case every 6 months to determine if the security factors still apply. The US then went one step further and designated each detainee to be an "enemy combatant", which is not required for a normal CI. There are currently Habeas challenges to this process. Since neither the status of CI nor "enemy combatant" involves any criminal charge, any system that requires criminal charges to detain individuals would automatically release all these people unless some criminal charge can be found.

A third category involves civilians who could be criminally charged. They can be divided into civilians who committed ordinary crimes (murder) in Afghanistan against US soldiers during war or occupation (Khadr for example), and civilians who committed crimes under US laws that admit to extraterritorial jurisdiction (providing material support to a terrorist organization as with Hicks and Hamdan).

Before you begin to create new courts or rules of evidence, you have to determine the fundamental context. Are charges based on military law, international law, Afghan domestic law, or US domestic law? All four apply to different cases and charges. You then have to adjust your policy to allow for what will happen when Article III judges begin to hand down dozens of contradictory decisions that second guess every legal conclusion you reached. It seems silly for a new administration to make the assumption that it can unilaterally and globally decide on some new policy and then assume that anything is going to go as planned.
11.10.2008 12:08pm
Happyshooter:
There is one story out there about a AQ shopkeeper who thought it would be fun to throw gas on a college professor HTT team member.

The rumor goes that when her team captured him, after buring her, he bragged that he would be let go by Obama.

He then tried to attack the team members and was shot.

I would expect a lot more of that happening if Obama starts letting federal judges let the emeny go.
11.10.2008 12:16pm
sonicfrog (mail) (www):

These guys didn't commit crimes against the international community. They hijacked American planes, in American airspace, and struck American targets. Why on earth should any court but an American one try them?


For the sake of accuracy, I believe all those guys are dead :-)

Problem is that, as far as I can tell, there aren't very many in G-town who were involved in any way with the events and planing of 9/11.
11.10.2008 12:26pm
Oren:

I was hoping for Judge Mukasey to make an effort towards designing such a system after he was appointed AG, as he has vast experience in the real-world problems occasioned by terrorism trials, including classified information and the like.

Given that he presided over a successful trial, I thought so too. My tentative conclusion from his failure to move in that direction is that the detainees are so ****ed up by 6 years of solitary that bringing them into a Federal courthouse would discredit the entire system to such an extent that it would undermine the prosecutions. Of course, there are myriad other plausible explanations.
11.10.2008 12:30pm
Oren:

There's a clear, perverse realist lesson in the Gitmo mess for future administrations: take fewer prisoners. There would be no issue if these guys were dead on the battlefield.

Wait, I thought interrogation of these prisoners was an absolutely vital step in protecting American troops and civilians from future attack. So much so that any interference in that power would encroach on the CinC's inherent authority to protect the country (so the argument goes).
11.10.2008 12:32pm
Oren:

A leading Bush apologist! Give Mr. Kerr his due.

My apologies to the Professor for understating his complicity-through-civility in the war-crimes of the Bush era.
11.10.2008 12:33pm
CJColucci:
Good, Orin. I hope the trials are in your neighborhood and not mine.

We've had big-time terrorist trials in my neighborhood, a few blocks away from my office. So far, so good.
11.10.2008 12:46pm
Jim Hu:
In the case of any access to any classified information, a background check has to be done on any and all participants.
In a civilian criminal court, wouldn't the defendant also have the right to hear all the evidence against him? Good luck on that background check!
11.10.2008 12:51pm
einhverfr (mail) (www):

In a civilian criminal court, wouldn't the defendant also have the right to hear all the evidence against him?


IANAL, but I believe there are provisions for classified evidence.

However, the question might exist whether the right exists to a trial by jury (a right guaranteed in the Constitution, by the way).... I don't think they could tell the classified evidence to the jury....
11.10.2008 1:04pm
Steve:
The entire point of a "hybrid" system is that we are not simply going to throw all of these people into the civilian court system.
11.10.2008 1:25pm
Soronel Haetir (mail):
In regard to classified information and jury trials, I recall one of the computer hacking trials from the early 90s the prosecution tried to keep the jury from seeing the stolen documents The docs in question described 9-1-1 operations in a manner that would make social engineering easier. The case fell apart when the defense was able to order essentially the same information out of a AT&T documents catalog.
11.10.2008 1:29pm
Oren:

I don't think they could tell the classified evidence to the jury....

I'm sure stiff penalties for jurors who divulge classified information would be considered constitutional (ask Eugene if prior restraint would work).
11.10.2008 1:29pm
Connecticut Lawyer (mail):
How many of you think that Sen. Obama and the rest of the Congressional Democrats would have supported a hybrid system for trying terrorist suspects if President Bush had proposed one? As I recall, a number of pundits and professors and lawyers suggested something along those lines and the Democrats vigorously shot down one and all, giving various reasons that all boiled down to, "Do everything possible to make it impossible for President Bush to do anything at all so we can run against his record of failure in 2008."

It strikes me that this is one of those issues that the Republicans ought to let the Democrats pass on their own, with no cover from the Republicans at all.
11.10.2008 1:34pm
Richard Aubrey (mail):
Considering that Lynn Stewart is unlikely to be a one-off, I bet a certain group are really hot for classified material to be admitted.
11.10.2008 1:34pm
Anderson (mail):
Problem is that, as far as I can tell, there aren't very many in G-town who were involved in any way with the events and planing of 9/11.

Point taken, but of course we're talking about the conspirators here. I don't see why there should be an international trial just because KSM was in Afghanistan or Pakistan when he planned the crimes. Would we have an international trial for a Mafia don who planned his crimes in Sicily?

I think that something like the NSA court could be created for genuine security-issue cases, but the words "star chamber" should suffice to remind us that the bar for those cases should be a little higher than the Executive's say-so (be that President Bush or President Obama).
11.10.2008 1:35pm
Al (mail):
There's a clear, perverse realist lesson in the Gitmo mess for future administrations: take fewer prisoners. There would be no issue if these guys were dead on the battlefield. But corpses have lesser intelligence value. Choices, choices.

How about just leaving them in the custody of the Afghans, Iraqis, et al. rather than shipping them to Gitmo in the first place?
11.10.2008 1:37pm
Anderson (mail):
How many of you think that Sen. Obama and the rest of the Congressional Democrats would have supported a hybrid system for trying terrorist suspects if President Bush had proposed one?

They wouldn't have trusted Bush to walk the dog around the block, either.

Sorry if anyone's shocked that the Bush-Cheney Axis of Evil seemed less than reliable.
11.10.2008 1:38pm
Bob from Ohio (mail):

thought interrogation of these prisoners was an absolutely vital step in protecting American troops and civilians from future attack.


You'd be right. Intelligence and not trials was the reason for Gitmo.

After 7 years, I assume the intelligence value is gone so who cares how the Dems act. Let them help out their pals if they want.
11.10.2008 1:44pm
Thomas_Holsinger:
The devil is certainly in the details. There are two immediate considerations - must secret intelligence information, particularly communications intelligence, be provided to defense counsel (for any trial), and how will ordinary jurors feel about being made the personal targets of terrorists? Including their families, and long after the Obama administration is history.

But, if you really want to foster terrorism, the answers are yes, all of it and in every case for the first question and, for the second question, that's not a bug, it's a feature!
11.10.2008 1:46pm
Cactus Jack:

[H]ow will ordinary jurors feel about being made the personal targets of terrorists? Including their families, and long after the Obama administration is history.

How do ordinary jurors feel about being the personal targets of mob bosses and gangsters as the world exists today? Or is it somehow scarier because TERRORISTS are involved?
11.10.2008 1:58pm
Douglas2 (mail):
Howard Gilbert makes good points above. I was living in Europe when the Gitmo controversy got underway, and whenever anyone was critical of the US approach I asked what they would do with (hostile non-uniformed + no clear chain of command) people captured in the conflict zone. We cannot always release them into a theatre of conflict that is still hot, because many will just join the conflict again. We cannot try them, because that is illegal under international law. We cannot release them to their home countries, because they might be subject to inhumane treatment. We cannot hold them in internment in the zone of conflict, because that invites raids trying to release them, putting even more lives at risk. We cannot imprison them on US soil, because (rightly or wrongly) the legal precedent then gives them rights which would not allow their continued imprisonment.
11.10.2008 1:59pm
Matthew K:

how will ordinary jurors feel about being made the personal targets of terrorists? Including their families, and long after the Obama administration is history.

It seems to me that we have tried major terrorism cases in the past (also organized crime cases). To the best of my knowledge, those trials involved juries and those juries were not subject to retribution afterwords. Did I miss something?
11.10.2008 2:00pm
Soronel Haetir (mail):
Another bit of evidense weirdness. I was lving in Idaho when a UofI student was brought up on material support charges for maintaining a website. Part of the evidense was his mailbox, almost all of which was in Arabic. The defendant was prohibited from assisting in the search for exculpatory material, he had to bring in security cleared people.

And after all that work the jury still aquitted on the serious charges and hung on the visa violation charges (stemming from a claim that his volunteer efforts were illegal work). It actually wouldn't surprise me if that case had been covered on the VC, ought to check the archives.
11.10.2008 2:06pm
Al Maviva:
How about just leaving them in the custody of the Afghans, Iraqis, et al. rather than shipping them to Gitmo in the first place?

What makes you think this hasn't been the de facto policy for a couple years already?

Oh yeah, that's right, there's no drumbeat of NY Times coverage of how terrible life is for AQ prisoners in custody of the Iraqi or Afghan governments. Gee, I wonder why we're not hearing about a burgeoning prison population of AQ associates in those countries...
11.10.2008 2:07pm
Thomas_Holsinger:
Cactus &Douglas2,

War and peace are not the same. They are different.

Americans and foreigners are not the same. They are different.

Crime and terrorism are not the same. They are different.

Intelligence and wisdom are not the same. They are different.
11.10.2008 2:20pm
PLR:
Howard Gilbert makes good points above.

Uh oh.
I was living in Europe when the Gitmo controversy got underway, and whenever anyone was critical of the US approach I asked what they would do with (hostile non-uniformed + no clear chain of command) people captured in the conflict zone.

Funny, I thought it was the non-hostiles who presented the knotty problem.
We cannot always release them into a theatre of conflict that is still hot, because many will just join the conflict again.

Maybe it won't be hot much longer.
We cannot try them, because that is illegal under international law.

It is not illegal to try them if they have committed crimes.
We cannot release them to their home countries, because they might be subject to inhumane treatment.

True.
We cannot hold them in internment in the zone of conflict, because that invites raids trying to release them, putting even more lives at risk.

Guess you've never served in the military. Of course that is an option, and it's the option.
We cannot imprison them on US soil, because (rightly or wrongly) the legal precedent then gives them rights which would not allow their continued imprisonment.

Constitutional habeas and the guarantees in the Bill of Rights are doctrinally wrong or debatable?

Sheesh!
11.10.2008 2:34pm
Constantin:
Anderson:

Sad to think of your missing jury duty for KSM, Constantin.


I'm certain you are. And when the Constantin-less jury lets this poor misguided soul off, I trust you'll be the one to pick him up from the courthouse, right?
11.10.2008 2:46pm
Richard Aubrey (mail):
I believe the judge in one of the '93 WTC cases got--possibly still has--protection.
Also somebody connected with the WU. There's a recent essay by one of his kids floating around about how Bill Ayers tried to kill him.
So, apparently, terrorists are scarier.
11.10.2008 2:51pm
Arnaud Amaury:
Neca eos omnes, deus suos agnoscet.
11.10.2008 2:51pm
Ex-Fed (mail) (www):
Your failure to launch into a multi-page rant against the Bush Administration policy on this point, complete with at least 2.3 uses of the word "Amerikkka" per page and not fewer than three comparisons of Bush to a chimp, Hitler, or a chimp strategically shaved to look like Hitler, you have proven yourself once again to be a shameless apologist for each and every excess of the Bush Administration. Fie! Only pants-wetting shows patriotism, sir.
11.10.2008 2:53pm
Anderson (mail):
War and peace are not the same. They are different.

Americans and foreigners are not the same. They are different.

Crime and terrorism are not the same. They are different.

Intelligence and wisdom are not the same. They are different.


Is that an argument? I'll spot you on the intel/wisdom difference, given your AD&D background ....

And when the Constantin-less jury lets this poor misguided soul off

Do you mistrust Americans in general, Constantin, or just Americans on juries?

Do you really imagine that a jury would acquit KSM? The man who confessed to 9/11 to a journalist, before even being taken into custody?

Summoning every thread of experience and courage, I looked Khalid in the eye and asked: "Did you do it?" The reference to September 11 was implicit. Khalid responded with little fanfare: "I am the head of the al-Qaida military committee," he began, "and Ramzi is the coordinator of the Holy Tuesday operation. And yes, we did it."

He went on: "About two and a half years before the holy raids on Washington and New York, the military committee held a meeting during which we decided to start planning for a martyrdom operation inside America. As we were discussing targets, we first thought of striking at a couple of nuclear facilities but decided against it for fear it would go out of control." * * *

The attacks, he said, were designed to cause as many deaths as possible. It would be a huge slap in the face for America, on its own soil. But who would carry it out? "We were never short of potential martyrs. Indeed, we have a department called the department of martyrs."


Leave aside *anything* we got from him after his arrest, and just share that with the jury.
11.10.2008 2:53pm
Cactus Jack:
Thomas -

Could you elaborate? Why would a juror be at greater risk as a result of convicting a terrorist compared to convicting, say, a member of MS-13?
11.10.2008 3:13pm
Steve:
We put brutal rapists and murderers on trial every day in this country. If somehow we failed to secure a conviction against one of them, there is every likelihood that they might go free to rape or murder again. Yet somehow the earth keeps turning, and we haven't replaced our judicial system with a principle of "indefinite detention without trial for all brutal rapists and murderers, because we can't take the chance that they might get off."
11.10.2008 3:15pm
Oren:
Yeah, the jurors that convicted the '93 WTC bombers really showed a penchant for antiamerican animus.
11.10.2008 3:15pm
Richard Aubrey (mail):
Anderson
Not admissible. Hearsay.
Bill Ayers got off--"guilty as sin, free as a bird"--not because he was innocent but because of the way the government got the evidence against him.
You don't need a jury of meatheads a la OJ.
A judge with steak tartare between his ears, or a cop who forgot to dot an i.
I recall hearing of a case which went one way or the other depending on whether an attachment to a warrant had been stapled or paperclipped.
KSM had lots of opportunities to do an Ayers. And, starting about, oh, say, three p.m. EDT Sept 11, 2001, a lot of sympathizers in universities and elsewhere.
11.10.2008 3:16pm
LM (mail):
Orin Kerr,

I think [...] the devil is [...] a breath of fresh air [...].
11.10.2008 3:21pm
Bob from Ohio (mail):
Why is the 1993 WTC trial held up as a model? Sure, some of the conspirators got put in jail but it did not protect the WTC did it? In fact, the lenient treatment of the first set probably encouraged the later attempt.
11.10.2008 3:29pm
Cactus Jack:

A judge with steak tartare between his ears, or a cop who forgot to dot an i.

The government dropped its case against Ayers. It wasn't thrown by a judge. "Forgot to dot an i"? The cops were allegedly breaking in to defense counsel's office and wiretapping without warrants. The case was dropped as part of an effort to prevent these tactics from coming to light. That's hardly a technicality.
11.10.2008 3:32pm
Thomas_Holsinger:
Bob,

Not. Liencency had nothing to do with it. Failure to follow up the leads did.
11.10.2008 3:34pm
LM (mail):
Bob from Ohio:

In fact, the lenient treatment of the first set probably encouraged the later attempt.

Right, because a stiff prison term would be a real deterrent to operatives from "the department of martyrs."
11.10.2008 3:41pm
Steve:
In fact, the lenient treatment of the first set probably encouraged the later attempt.

How can you not be amused by someone who believes suicide bombers can be deterred by the threat of harsh punishment? "Gosh, if we somehow survive crashing these planes into the World Trade Center, those silly Americans will afford us the full protections of their jury system! Guess we should go for it after all!"
11.10.2008 3:41pm
MarkField (mail):

Not admissible. Hearsay.


It was an admission.


Neca eos omnes, deus suos agnoscet.


It's strange that I don't recall Simon de Montfort as a noted authority on ethics.
11.10.2008 3:49pm
Brian S:
But I tend to think a hybrid system like this sounds promising.

Despite the snark of some others in this thread, this is exactly the sort of thing that got you called a Bush apologist.

The only possible reasons to create a hybrid system is so that we can have courts where the defense is not allowed access to all the evidence, where the defense is not allowed to question the prosecution's witnesses, where evidence obtained under torture is admissible, or where the proceedings of the court are to be concealed from the public.

Advocating any of these things is advocating a star chamber, and not justice. One reason, perhaps, that someone mistook you for a Bush apologist is that wrapped inside a post that to the ear sounds mild and reasonable is enthusiasm for the "promise" of potential degradation of our civilian courts, to go along with the shame already brought down on our military system of justice.

If this is indeed Obama's plan, it didn't take Obama long to join Bush in the rogues gallery.
11.10.2008 3:51pm
Oren:

Why is the 1993 WTC trial held up as a model? Sure, some of the conspirators got put in jail but it did not protect the WTC did it? In fact, the lenient treatment of the first set probably encouraged the later attempt.

If you seriously think there is anything that could have been done differently to the suspects to prevent the 2001 attack (as opposed to not having the intelligence community asleep at the wheel), then I have a lovely bridge to sell you.
11.10.2008 3:57pm
Richard Aubrey (mail):
Cactus.
I was not referring to the Ayers case as a matter of "i dotting".
However, as the saying goes, guilty as sin, free as a bird.
So, having KSM on record as bragging about his guilt doesn't mean, as one poster said, anything like a likely conviction.
11.10.2008 4:07pm
Anderson (mail):
Why is the 1993 WTC trial held up as a model? Sure, some of the conspirators got put in jail but it did not protect the WTC did it? In fact, the lenient treatment of the first set probably encouraged the later attempt.

That is Billy Madison-quality.

As for "lenient treatment":

In March 1994, Salameh, Nidal Ayyad, Mahmud Abouhalima and Ahmad Ajaj were each convicted in the World Trade Center bombing. In May 1994, they were sentenced to life imprisonment.

Perhaps a punishment out of sharia would've been preferable?
11.10.2008 4:12pm
Anderson (mail):
Not admissible. Hearsay.

I believe that the journalist also got video to the same effect. Leaving aside the porosity of the hearsay exception. And assuming that KSM even invokes his right to remain silent.
11.10.2008 4:14pm
Bart (mail):
Here we go back to 9/10 and treating military enemy combatants as civilian criminal defendants.

Looks like there are three options being discussed for the enemy:

1) Admit them into the United States to undergo civilian criminal trial in US federal criminal courts;

2) Admit them into the United States to undergo civilian criminal trial in an as yet nonexistent US federal criminal court designed to handle classified evidence; or

3) Release the enemy combatants back to the battlefield.

There is no published plan to hold any as prisoners of war.

Option one is most likely a non starter because the majority of the evidence against the enemy combatants is derived from undercover CIA agents and their classified sources. Making this evidence public will get these sources killed.

Option two is essentially a reinvention of the current classified military tribunal system in a domestic civilian court whose judge has no real experience in military matters. At best, we are looking at another 2-3 years of litigation as the attorneys for the enemy try to derail this new court system as they did the military tribunals. At worst, an inexperienced civilian judge or jury unfamiliar with counter terrorism will acquit the enemy combatant and release him onto our streets.

Option three will apply to every enemy combatant for whom there is evidence of membership in al Qaeda but not of a particular criminal offense. The article suggests that Obama will send these enemy combatants to their country of origin for detention or rehabilitation. However, none of these countries are willing to take over detention of the enemy and would instead release them back to the battlefield to war against the United States. In essence, option three means we will not longer detain the enemy as prisoners of war and will routinely release them back to the battlefield unless we can charge them as civilian criminal defendants.

Is this change you can believe in?

Elections have consequences for the citizenry and this consequence is going to get our citizens killed.
11.10.2008 4:21pm
Anderson (mail):
whose judge has no real experience in military matters

Singling out this clause, what "real experience in military matters" is needed to try people who've conspired to crash jetliners into buildings?
11.10.2008 4:31pm
Steve:
Bart actually believes that Obama intends to release every al-Qaeda member to go free unless they can be convicted of a specific criminal offense. What a colossal idiot he is.
11.10.2008 4:32pm
Anderson (mail):
Steve, I realize the powerful temptation to call someone an idiot, especially when that someone is Bart; but I don't think that helps the thread very much.

Surely there are more subtle ways to make that point.
11.10.2008 4:48pm
Thomas_Holsinger:
Steve,

No, Bart and I expect Obama to release classified intelligence information to terorists as part of criminal discovery due process so our sources will either be killed or refuse to cooperate with us any more. In particular, frienedly intelligence services will cease to cooperate with us.
11.10.2008 4:53pm
Bob from Ohio (mail):
Life imprisonment for terrorists is lenient. We did not let McVeigh off with life, did we?

The trial just showed how weak we were.

Its not the stooges of 9/11 that would have possibly been deterred by a stronger response. Its the planners. They may have sought weaker targets. Maybe. But our pathetic criminal response certainly did nothing.
11.10.2008 5:07pm
Bart (mail):
Steve:

Bart actually believes that Obama intends to release every al-Qaeda member to go free unless they can be convicted of a specific criminal offense. What a colossal idiot he is.

Steve, you are free to point out the passage in the AP article where Obama plans to hold any al Qaeda as prisoners of war rather than either trying them for civilian criminal offenses into our countries or releasing them back to their countries to be freed.

There is a colossal idiocy here, but it is not mine.
11.10.2008 5:10pm
Bart (mail):
Anderson (mail):

Why is the 1993 WTC trial held up as a model? Sure, some of the conspirators got put in jail but it did not protect the WTC did it? In fact, the lenient treatment of the first set probably encouraged the later attempt.

In March 1994, Salameh, Nidal Ayyad, Mahmud Abouhalima and Ahmad Ajaj were each convicted in the World Trade Center bombing. In May 1994, they were sentenced to life imprisonment. Perhaps a punishment out of sharia would've been preferable?

You completely missed the point.

Treating this war as a civilian criminal justice matter restricts us to jailing the enemy after they mass murder our citizens rather than preemptively killing them or holding them as prisoners of war before they kill our citizens.
11.10.2008 5:14pm
Anderson (mail):
Life imprisonment for terrorists is lenient.

Yousef got life w/out parole at the Supermax. I think I'd prefer death, personally.

Anyway, the notion that KSM et al. thought, "goody, even if the infidels catch us, we won't be executed, so let's go ahead!" is ... implausible.

Leaving aside that the 1993 attack killed 6 people, McVeigh killed 168, and 9/11 killed 2,974.

I could see life perhaps for some more peripheral figure, but KSM is going down ... indeed, would already've been executed, had he been arrested and indicted.
11.10.2008 5:18pm
dirc:
Steve @ 4:32pm wrote:

Bart actually believes that Obama intends to release every al-Qaeda member to go free unless they can be convicted of a specific criminal offense. What a colossal idiot he is.


Steve, I assume you were referring to Bart as the colossal idiot. What do you think will happen to Guantanamo detainees that are not convicted of a criminal offense?

I think that Bart is right. Otherwise, what does it "Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts" mean?

And no need to call me a colossal idiot, too. I take that as a given.
11.10.2008 5:19pm
Sarcastro (www):
I haven't heard that Obama doesn't plan to give each of the terrorists a bomb and let them free on bond. Steve, you are free to prove this wrong.

Obama is colossally idiotic about the consequences of this action. I can't imagine what is motivation to do this would be except that he hates Americans.

And criminal trials have no methods of dealing with secret information at all.
11.10.2008 5:19pm
Bart (mail):
It appears that the Obama legal team intends to extend US constitutional rights to wartime foreign enemy combatants for the first time in American history.

I presume then that bin Laden will have a 5th Amendment right to silence if we capture and attempt to question him for intelligence gathering on the ground it might tend to incriminate him in his civilian criminal trial.

As steve notes, a colossal idiocy.
11.10.2008 5:20pm
Anderson (mail):
Treating this war as a civilian criminal justice matter restricts us to jailing the enemy after they mass murder our citizens rather than preemptively killing them or holding them as prisoners of war before they kill our citizens.

Bart is mistaken. Congress authorized the use of military force against al-Qaeda. That doesn't mean that we can't apprehend, indict, try, and execute its members when we catch them, as opposed to blowing them up via Predator drone or whatnot.

We are not at war with al-Qaeda. Al-Qaeda is not a state. It's a band of criminals, like the Mafia. The fact that they hide in an effectively lawless region makes it necessary to use military force against them, but that doesn't make them soldiers. They don't deserve that much credit, however much KSM might like to preen otherwise.

(Leaving aside, where did this POW stuff come from? Whom have we held as a POW since 9/11?)
11.10.2008 5:23pm
Anderson (mail):
I presume then that bin Laden will have a 5th Amendment right to silence if we capture and attempt to question him for intelligence gathering on the ground it might tend to incriminate him in his civilian criminal trial.

Why do you make this nonsense up? If the CIA or the military interrogate bin Laden, and that information is kept confidential (as one would damn well hope), how does that impair his right to a fair trial?

Being a gadfly is useful. Being obtuse, or disingenuous, is not.
11.10.2008 5:26pm
Bart (mail):
Anderson (mail):

BD: Treating this war as a civilian criminal justice matter restricts us to jailing the enemy after they mass murder our citizens rather than preemptively killing them or holding them as prisoners of war before they kill our citizens.

Bart is mistaken. Congress authorized the use of military force against al-Qaeda. That doesn't mean that we can't apprehend, indict, try, and execute its members when we catch them, as opposed to blowing them up via Predator drone or whatnot.

We are not discussing what the President is empowered to do with enemy combatants during a war. Rather, we are discussing what the President elect actually plans to do or not to do with the enemy in a dozen weeks.

We are not at war with al-Qaeda. Al-Qaeda is not a state. It's a band of criminals, like the Mafia. The fact that they hide in an effectively lawless region makes it necessary to use military force against them, but that doesn't make them soldiers. They don't deserve that much credit, however much KSM might like to preen otherwise.

1) The United States has engaged in literally dozens of wars against non-state tribal, guerilla and pirate bands through our history. This war is no different. Indeed, it is very similar to the Barbary Pirate Wars.

2) The AUMF against al Qaeda was not a criminal indictment, it was a declaration of military war.

Leaving aside, where did this POW stuff come from? Whom have we held as a POW since 9/11?

Don't be willfully obtuse. As we have discussed on dozens of previous occasions, prisoners of war are simply enemy combatants and civilians held for the duration of a conflict to prevent them from returning to the battlefield or to support the enemy war effort.

The Bush Administration declined to use this term because it invokes POW privileges provided by the Geneva Conventions for enemies that observe the laws of war.
11.10.2008 5:33pm
Sarcastro (www):
We are not discussing what the President is empowered to do with enemy combatants during a war. Rather, we are discussing what Bart's fevered imagination actually dreams Obama will do or not to do with the enemy in a dozen weeks.
11.10.2008 5:35pm
Constantin:
Steve:

We put brutal rapists and murderers on trial every day in this country. If somehow we failed to secure a conviction against one of them, there is every likelihood that they might go free to rape or murder again. Yet somehow the earth keeps turning, and we haven't replaced our judicial system with a principle of "indefinite detention without trial for all brutal rapists and murderers, because we can't take the chance that they might get off.

These brutal rapists and murderers don't have fellow rapists and murderers targeting their judges and juries and courthouses via fatwa.

And they commit crimes within American territories, too, but I realize having that matter is an outdated, and moot, notion.
11.10.2008 5:37pm
Bart (mail):
Anderson (mail):

BD: I presume then that bin Laden will have a 5th Amendment right to silence if we capture and attempt to question him for intelligence gathering on the ground it might tend to incriminate him in his civilian criminal trial.

Why do you make this nonsense up? If the CIA or the military interrogate bin Laden, and that information is kept confidential (as one would damn well hope), how does that impair his right to a fair trial?

Unless we have evidence completely independent of bin Laden's statements and their fruits, then the evidence will be suppressed. Indeed, any competent defense attorney will claim that the evidence in the case is the fruit of such interrogation regardless of whether it is true in the hope that a judge will grant a motion to suppress.
11.10.2008 5:38pm
Sarcastro (www):
I know I worry that we may not convict Bin Ladin, what with all his taped confessions and all. You know how easily confessions get tossed out of court!
11.10.2008 5:40pm
Anderson (mail):
Unless we have evidence completely independent of bin Laden's statements and their fruits, then the evidence will be suppressed. Indeed, any competent defense attorney will claim that the evidence in the case is the fruit of such interrogation regardless of whether it is true in the hope that a judge will grant a motion to suppress.

Right. So?

I'm particularly unimpressed by what "any competent defense attorney will claim." Let 'em claim all they want. Claims don't acquit people.
11.10.2008 5:41pm
Anderson (mail):
You know how easily confessions get tossed out of court!

Right. Not to mention all those Twinkies he ate the night before he gave the orders for 9/11.
11.10.2008 5:44pm
Cactus Jack:

These brutal rapists and murderers don't have fellow rapists and murderers targeting their judges and juries and courthouses via fatwa.

And they commit crimes within American territories, too, but I realize having that matter is an outdated, and moot, notion.

Sure they do. Pick your favorite gang or crime family. When they issue death threats against a judge, an AG or an AUSA, we don't call it a fatwa but it's the same thing. The difference is that gangs and the mob actually kill judges and prosecutors from time to time.
11.10.2008 5:46pm
Steve:
Steve, I assume you were referring to Bart as the colossal idiot. What do you think will happen to Guantanamo detainees that are not convicted of a criminal offense?

People like Bart enjoy pretending that everyone at Guantanamo is a member of al-Qaeda. In fact, from their rhetoric you'd think that every last detainee was captured in flagrante delicto, perhaps hovering, knife in hand, over the barely-dead corpses of innocent women and children. Meanwhile, out here in the real world, many of the detainees have not even been proven to be "enemy combatants" to the satisfaction of a military tribunal. In fact, the prosecutors - loyal career members of our military - keep resigning as it becomes clear that the tribunal system is designed to railroad these detainees rather than provide an accurate determination of whether they are, in fact, enemy combatants.

The short answer to your question is that, to the extent the detainees actually belong to al-Qaeda, they will be convicted of material support for terrorism or a similar offense, just like Jose Padilla. If they are not members of al-Qaeda, well, it depends what exactly they've done.
11.10.2008 5:48pm
Nunzio:
The bombers of the embassies in Kenya and Tanzania were tried in federal court in NYC in 2001, found guilty, but spared the death penalty by the jury.

I've got no real problem with charging the Gitmo detainees in federal court either, but they should try them in Alabama, Texas, or South Carolina. Need to shop for a more pro death penalty jury.

Also, the Zacarias Moussaoui trial was worse than watching Judge Judy, largely due to Moussaoui's decision to represent himself and his general craziness.

My worry with Obama is not what judicial process to subject the Gitmo detainees, it's what he does when new suspects are captured. Does he believe in trying to get information from them only in accordance with Constitutional criminal procedure. I.e., if they refuse to talk, do they get a lawyer, then brought to the U.S. before a judge for a bond hearing, etc.?
11.10.2008 5:53pm
Thomas_Holsinger:
I would appreciate if any of the people here who defend Obama's proposal to hold criminal trials of foreign terrorists would state if they have ever, in their entire lives, defended or prosecuted criminal accused for any criminal offense whatever.

Because they clearly have no idea whatever of the procedures and requirements for criminal discovery and suppression of unlawfully obtained evidence.

So, are there any volunteers here who can prove me wrong? Speak now, or forever hold your peace.

Because I say flat out that you guys have no idea what you are talking about.
11.10.2008 5:57pm
Anderson (mail):
it's what he does when new suspects are captured. Does he believe in trying to get information from them only in accordance with Constitutional criminal procedure

As I've suggested above, I don't see any contradiction b/t FBI interrogations to secure convictions, vs. intel interrogations to secure information. The FBI results could even be forwarded to the intel folks; it just can't run the other way.

One reason we didn't do this with KSM et al. is that we were committed to using torture, including isolation techniques as with Padilla, and one of the cardinal rules was to deny the prisoner any contact with any friendly face, such as a defense attorney.

Nothing in Obama's campaign suggests that he intends to be sissyish in defeating al-Qaeda. Remember McCain's feigned horror at the thought of bombing bin Laden inside Pakistan?

(For that matter, now that the campaign's over, I hope that McCain will share with Bush and Obama his secret plan to catch OBL. Country First!)
11.10.2008 5:59pm
Thomas_Holsinger:
Note that Cactus Jack's most recent post does not at all mention the word, "juror".
11.10.2008 5:59pm
Anderson (mail):
Because I say flat out that you guys have no idea what you are talking about.

For example?
11.10.2008 5:59pm
Ex-Fed (mail) (www):
Meanwhile, out here in the real world, many of the detainees have not even been proven to be "enemy combatants" to the satisfaction of a military tribunal.



And when you consider that the precise definition of "enemy combatant" has at times been (a) classified and (b) subject to redefinition at the unreviewed and unreviewable discretion of the executive, that's quite an accomplishment.
11.10.2008 6:01pm
OrinKerr:
All,

I have tried deleting and editing comments to this post, but the software seems to be malfunctioning and it is not letting the comments and deletions go through. However, you all are acting like 3 year olds -- the comments are uncivil, immature, and silly. Given that, I am cutting off the thread.
11.10.2008 6:03pm
Brian G (mail) (www):
I say we should just release them all and move them into Chicago, Marin County, and Madison, Wisconsin, where they will surely be welcomed with open arms as unfortunate victims of the evil Bushitler.
11.10.2008 6:03pm