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Thursday, November 19, 2009

The prosecution of KSM: It is obvious Eric Holder has not thought it through 


Watch this selection from Eric Holder's Senate testimony on the use of the civilian criminal justice system to try jihadis who kill Americans. Leaving the substantive arguments to Andy McCarthy, who has just been beating the hell out of them over at The Corner for days, how is it possible that Holder was not ready for the Miranda question?

Boggles my mind.



36 Comments:

By Blogger JPMcT, at Thu Nov 19, 08:01:00 AM:

The trial will, of course, be a fiasco.

The concept of "showing the world the power of our judicial system" could only be based on the reviews of the "Judge Judy" show, rather than the real world clown circus such as the OJ Simpson farce.

Holder and Obama are letting their Hubris show...and, as usual, the result will be bad for America.

Like the proverbial train wreck...it's horrible to watch, yet I can't look away!!!  

By Anonymous Anonymous, at Thu Nov 19, 08:39:00 AM:

Every day brings some new incredible disaster of naivete, ignorance or spite from this administration. Why should Holder's latest decision be different from any of hte others?  

By Blogger Elijah, at Thu Nov 19, 08:58:00 AM:

Mr. Holder and the current administration did not give these individuals their day in court or read them their Miranda rights  

By Blogger Cardinalpark, at Thu Nov 19, 09:08:00 AM:

Because he is an idiot.  

By Anonymous Anonymous, at Thu Nov 19, 10:24:00 AM:

This KSM business puts me in the uncomfortable position of defending the Obama Administration's decision, and arguing that all conservatives should defend the decision.

The logical flaw in Graham's position is exposed in the first ten seconds of this video. KSM was NOT caught on a battlefield by the U.S. Military. He was captured in Rawalpindi, Pakistan by the ISI of Pakistan, a sovereign nation. The CIA took custody of KSM from the ISI, shuffled him through a few black sites, then shipped him to Gitmo.

On these facts you cannot build a credible case that KSM is a legitimate Enemy Combatant who should be subject to military custody. To do so is to assert that the US government can pluck someone off the street anywhere in the world and "disappear" them into indefinite military detention. I don't know a single conservative who would defend that proposition.

This case is NOT making history, or even new law. It is simply following well-established principles of criminal law, military law, and constitutional law. It will not affect the status of legitimate military detainees captured by the military in a battle zone. Graham is full of it.

I actually have a small amount of sympathy for Eric Holder. The Bush administration botched this so badly that there are no good options now. Custody is (and always has been) key. We never should have taken custody of KSM. He should have been kept in Pakistan or transferred to the custody of Egypt, Syria, Jordan, or the like where he could have been tortured, interrogated, then promptly disposed of with a nine-cent bullet to the head.

Flame away . . .  

By Anonymous tyree, at Thu Nov 19, 10:43:00 AM:

Anon, you don't control us and you don't get to decide when our reasoned remarks are "flame away" material.

That being said, it was impossible from the very beginning to fight the War on Terror in a completely legal fashion. There is too much new ground to cover, to many unanswered questions about means and methods. How many terrorists being held in foreign countries have escaped? As for "botched", we won't know how badly President Bush's administration "botched" this war until long after it's over. The Duke of Wellington himself said that Winfield Scott's expedition was doomed.  

By Anonymous QuakerCat, at Thu Nov 19, 10:43:00 AM:

Anon 10:24 - you have got to be kidding? Your disdain for G.W. has gotten your brain into such a knot that you cannot think straight. You are looking at this case as if the guy was selling a kilo of heroin or stole a ton of money. He did not. He masterminded the largest attack on American soil in both lives and treasure. Every conservative I know is perfectly fine plucking these type of dousche bags off any street in the world if they have had any hand in this awful event, nevermind stopping any future events.

You seem to forget that we waterboarded this guy and he sang like a friggin stool pidgeon. The intelligence that was garnered from this one source stopped a number of substantial acts against America. If he were tried in the civilian courts he is now entitled to seek justice against America in the civil courts for his mistreatment. Furthermore, even in the criminal system since he was never mirandized this is automatically a mistrial. You cannot un-ring the bell.

Lastly, how in the hell did the Bush adminstration screw this up - because they did not Mirandize him, because they did not provide counsel to him? It is clear that any rational thought has left your brain due to how much of a homer you are for the Left. Try thinking about America's best interest and what a bunch of baffoons we look like to the rest of the world. We are going to try him in civilian court and the President has already said the guy is going to fry anyway - so why bother with all of the window dressing? Also, let's just say his case gets bounced because he was mistreated and he was not read his Miranda rights - do we still keep him custody? We sure as hell cannot "fry him" as Mr. Obama said. The argument you make is actually worse than Holder's because he clearly did not think things through, you on the other hand have had some time to think about it and you are still defending this innane decision.  

By Anonymous Anonymous, at Thu Nov 19, 10:49:00 AM:

Anonymous: What does "battlefield" mean in a war on terror? The entire world is a battlefield a terrorist, because no place is off-limits to his attacks. If Osama were captured in his cave, would that be on the battlefield? It seems to me that any place a terrorist happens to be located is part of the battlefield, and if we catch him it is perfectly legitimate to say that he was caught on the battlefield.  

By Anonymous Anonymous, at Thu Nov 19, 10:49:00 AM:

I think you do not give Holder enough credit. I believe he knows exactly what he is doing. He sees that Obama will be a one term president and is preparing to sell a dark of the night pardon for KSM to the Saudis/Soros at the end of Obama's term. He did it for Marc Rich. After all, why should Congressional dems and t heir family members, friends and relatives be the only one to get a pay day from their government "service?"  

By Anonymous Anonymous, at Thu Nov 19, 10:51:00 AM:

No flame, but disappointed you argued well trod arguments without realizing that each and every one has been dispensed with.

The point of capture is not relevent. Even Holder relies not on the point of capture but on the point of attack for his argument, so your points collapse as your premise falls away. As to Holders argument, that civilians were the victims of 9/11, that ignores the Pentagon, and it relies on an entirely species theory that attacking civilians should be rewarded. As Tom Maguire put it so bitingly, by Holders logic if KSM had attacked an elementary school would that require a trial in Juvenile Court? Yes.

As to your outrageous assertion that the case is not making "history, or even new law", that ignores all the evedence provided over tha last week, citing wars ranging from the Revolution to the al Qaeda conflist, priving just the opposite, as well as the traditions of war around the owrld (whether declared or undeclared). And, please, don't raise the "undeclared war" sophistry. It's an empty argument, and even if it had validity it would support the military commision argument since these combatants were out of uniform, non-state combatants and the rules of war, as well as the Geneva Convention, REQUIRE summary military trials and execution. Our military commission approach, a bi-partisan bill sponsored by Nancy Pelosi and co-sponsored by Barack Obama, was fully constitutional and offered this scum far more rights than they deserved by even irrational interpretations of the laws of war.

You have sympathy for Eric Holder? Well, we all have symapthy for the village idiot so, if that's what he is, then fine. But he isn't that: he's an evil man bent on evil acts. He defended detainees against the public interest as a private lawyer, and he's hired otehr such lawyers to work on detainee matters for the Justice Department. Even someone who thinks well of him has to recognize the serioous conflict of interest that presents. Moreove, he is deliberately and by plan endangering the intelligence capabilities of the Untied States through exposire in a public forum, federal courts. He is holding the justice system of the United States up to ridicule, since (as the President himself announced from Beijing) this man will be convisted and executed, no matter what the trial says. Turning our court system into show trials is ridiculous, and makes us look ridiculous.

The decision is idiotic, it endangers America, and it doesn't comply with a carefully negotiated law dictating procedure.

Holder is a corrupt political hack, seeking only to embarass the former administration at any cost. It's bizarre behavior.  

By Anonymous Boludo Tejano, at Thu Nov 19, 10:51:00 AM:

QuakerCat:
Lastly, how in the hell did the Bush adminstration screw this up..

It could be argued that Bush and company screwed this up by not having KSM tried, convicted, and six feet under by January 20, 2009. It was foolhardy to leave this to a POTUS who ran on the "I am not Dubya" mantra.  

By Anonymous Anonymous, at Thu Nov 19, 10:54:00 AM:

Sorry about my spelling, but needed to go stream-of-conciousness to get it out before I became complacent and then too busy with work...Just amazes me that someone could defend this idiocy.  

By Anonymous Anonymous, at Thu Nov 19, 11:00:00 AM:

By the way, if one wants to defend Holder's decision, this is the better way to go about it: Trying KSM in Federal Court makes for a better chance of a conviction.

Not saying i agree with this argument, but at least it says there might some rational thought behind the decision (a happy thought).  

By Anonymous Mr. Ed, at Thu Nov 19, 11:35:00 AM:

I can see how Geneva Convention rules regarding the combatants of nations serves a useful purpose in conventional conflicts. Your average soldier is not necessarily an evil person and may be fulfilling what he/she considers to be a duty, and an honorable one.

Non-state terrorist organizations, like Al Qaeda, who wage war against nations via innocent civilians, are definitely enemies of those they attack and they are also definitely soldiers for their cause. They can manage their war from wherever they are, so it really doesn't matter what nation owns the street you find them on.

This latest in a long list of dumb and badly reasoned actions by the Obama Administration, and AG Holder in particular, is maybe the most offensive so far. No one has denied that if the trial does not convict, KSM will nonetheless not be released, but he will revert to his "enemy combatant" status---i.e. he will be back in the military justice system where he will likely be tried again (for the same crime for those of you with constitutional concerns), found guilty and executed.

What really steams me is the idea being floated by the Obama administration that this process will show the world what a beautiful system of justice we have. When the outcome of a trial is foreordained, however, the trial is nothing more than Kafkaesque show, a sham by any other name. This is the way they try people in Iran, Russia, China, Sudan, Burma, North Korea and a host of other nations. These are nations whose system of government, I might add, Obama and Company seem to revere more than our own and more than the handful of legitimate democracies who have been our longtime friends and allies.

In this country, not many folks are going to cut KSM much slack. He will be viewed harshly. But every two bit dictator from Hugo Chavez on up, and every anti-American mosque, madrassa and civic organization is going to put America on trial all over the world. In the end, Obama's goal of restoring America's place in the world will be nothing more than a trashing America on a grand scale, on the big stage.

I happen to think we do have a system of justice which is quite imperfect but also quite beautiful. Obama and company will accomplish nothing more than showing the world that our system of justice is just as shitty as most of the truly crappy justice systems which exist only to prop up a fantasy of justice where there is none to speak of.

M.E.  

By Blogger DEC, at Thu Nov 19, 11:54:00 AM:

Like Lee Harvey Oswald, KSM will be dead--one way or another.

Obama has gambled his whole political future on this issue. Risk vs. gain--the decision makes no sense to a realist, an analyst, or a pragmatist. It may make sense to a hopeless idealist.  

By Anonymous Anonymous, at Thu Nov 19, 12:25:00 PM:

Original Anon here. I have to admit I'm more than a bit surprised at some of the positions being asserted here.

First principles: Under our Constitutional scheme, the Executive branch cannot hold in custody prisoners who have not been convicted of a crime by the Judicial branch. This principle was encoded in our Constitution because European Kings had a nasty habit of "disappearing" people they considered enemies of the state. The Constitutional power of Habeas Corpus provides the Judicial branch with a check and balance on detention by the Executive branch.

The Judicial branch has carved an exception to the rule for the legitimate detention by the military of enemy combatants captured by the military in a battle zone. It should be noted that the power of the military to hold prisoners of war who have not been convicted of a crime by the Judicial branch is not explicitly provided in the Constitution. Rather, it derives from the deference the Judicial branch gives to the Executive branch in conducting war.

Contrary to the assertion above, the point of capture IS relevant, as is the particular governmental entity that effected the capture and the nature of the allegations against the detainee. This would be a completely different case if KSM had been captured by the US Military in the course of an operation in Afghanistan or Iraq.

Again, KSM was NOT captured on a field of battle as part of a military engagement. He wasn't even captured by the US Military. He was captured on Pakistani soil by Pakistan's ISI. The CIA then (stupidly) took custody of KSM and transferred him to Gitmo. It is worth recalling that attorneys for the US military did NOT want him at Gitmo. Now you know why.

The Executive branch had no authority to keep him in custody without bringing him to trial. This is a classic case for Habeas Corpus.

The power of the Executive branch is limited by the Constitution. The president cannot expand these powers by simply applying the name War on Terror. Our government is now 30 years into the War on Drugs. But drug kingpins captured in Columbia aren't held in military custody or tried in military court. They are held in custody by civil authorities and tried in our criminal court system.

To be perfectly clear: the Bush administration botched the KSM affair by directing the CIA to take custody of KSM. As I said before, custody is key. KSM never should have been taken into U.S. custody. KSM should have been transferred to the custody of Egypt, Syria, or another suitable country where he could have been interrogated, tortured, and then shot in the head.

I've read most of the articles and examples purporting to justify treating KSM as a military detainee. All but one are inapposite. KSM is (1) a civilian who (2) was captured nowhere near a battle zone (3) by an entity that is not the US military. The only other person who fits this profile was Mary Surratt, who was hanged as a co-conspirator in Lincoln's murder. Most historians concur that she was most likely not guilty--that's why we have Habeas Corpus law.

The Courts are never going allow a scenario which gives the CIA or FBI authority go pluck a civilian off the street anywhere in the world and throw them into indefinite detention, and that's a good thing.  

By Anonymous Anonymous, at Thu Nov 19, 12:47:00 PM:

Attorney General Holder Shocked that Lindsay Graham is a Moron

http://thelonggoodbye.wordpress.com/2009/11/19/mountain-path-autumn-wallpaper-attorney-general-holder-shocked-lindsay-graham-is-a-moron/  

By Blogger Elijah, at Thu Nov 19, 12:54:00 PM:

"The Courts are never going allow a scenario which gives the CIA or FBI authority go pluck a civilian off the street anywhere in the world and throw them into indefinite detention, and that's a good thing."

A civilian...and that's where your argument fails completely.

Again, anon - how is the administration not committing targeted assassinations via drone strikes if individuals are to receive due process?

Did the current administration prove individuals were not civilians in Pakistan before the Hellfires were set free?

There is either a war occurring or there is not.  

By Blogger Escort81, at Thu Nov 19, 01:23:00 PM:

Original Anon -

How is KSM "a civilian?" In the sense that he is not a member of a uniformed military organization that is part of a recognized nation-state, nor a non-uniformed member of an intelligence service (a spy)? How would any senior or low level AQ member not be construed as a civilian in your view?

How can rendition be the preferred method of dealing with a big fish? Of course the U.S. should have had first dibs on interrogating KSM. The methods that third parties may have used could have resulted in less reliable intelligence yields. Remember the Iraqi "Curveball" interrogated (without torture) by the Germans regarding WMDs. To say that the U.S. should not have taken KSM into custody -- and forego the highest quality intelligence output -- out of a fear down the road of what his ultimate legal disposition would be seems to violate every aspect of common sense, and is throwing out the baby, the bathwater, the basin, the mother, the father and all of the siblings. Bush may have botched other things regarding the GWOT, but taking KSM into U.S. custody was the right call.  

By Anonymous Edward Lunny, at Thu Nov 19, 01:45:00 PM:

" has not thought it through "..Standard operating procedure for this group of morons.  

By Anonymous Anonymous, at Thu Nov 19, 02:09:00 PM:

@ Elijah, you've got several concepts in your post that are muddled together. I'll try to respond as best as I can understand them.

First, I agree that there is either a war or there is not. Congress declares war, not the Executive branch. A Congressional declaration of war (or in these days in which we have weasels in Congress, a close facsimile thereof) triggers judicial deference to the Executive branch in conducting the war. There is no Congressional declaration of a War on Terror. The Executive branch cannot declare War. Ergo, the Executive branch does not get judicial deference just because they apply the name "War on Terror" to their actions.

In that regard, the U.S. Military may conduct targeted assassinations via drone strikes as part of the war in Afghanistan or Iraq, which wars were declared by CONGRESS, and courts aren't going to touch this. Note that it is not the CIA or the FBI firing these drone strikes; it is the U.S. Military--big difference. Like I said, this would be a completely different case if KSM had been captured by the Military as part of the war in Afghanistan. He wasn't. Facts matter.

@ Escort81: Members of AQ captured by non-military actors (i.e., FBI or CIA) and outside a zone of battle will be treated as civilians by our courts.

I don't understand your bit about rendition. Again, custody is key. If the U.S. never takes custody of a detainee then the U.S. did not render them to anyone. U.S. rendition law does not come into play, despite what the a**holes at Amnesty International say.

The U.S. does not need to hold custody of a detainee in order to interrogate him. Intelligence agencies cooperate all the time. CIA interrogators can work just fine in an Egyptian prison. And when we're done the Egyptians can put a bullet in his head, or leave him to rot in an Egyptian prison forever, which is probably a worse fate.

We'll see what happens. There are still lots of left-leaning judges from the Clinton and Carter administrations. Many of these judges would view the release of KSM as a small price to pay in order to deliver the Bush administration a smackdown. My point is that this was all avoidable if the Bush administration had simply followed existing law and the protocols for maneuvering around that law. They did not, and that is why I have some modicum of sympathy for Eric Holder. Legally, he is between a rock and a hard place.  

By Anonymous Anonymous, at Thu Nov 19, 02:26:00 PM:

First principles: Under our Constitutional scheme, the Executive branch cannot hold in custody prisoners who have not been convicted of a crime by the Judicial branch.

OK, this is just wrong. There is no way to dress it up either. The Constitution doesn't apply, except to the extent Congress can check the power of the president. The only restriction on the power to hold al Qaeda prisoners captured abroad indefinitely is legislative, and President Obama himself (as well as Eric Holder) has said in recent days that they intend to hold at least 70 odd detainees indefinitely regardless of any trial outcome. KSM is in that group, at least until they execute him.


The Judicial branch has carved an exception to the rule for the legitimate detention by the military of enemy combatants captured by the military in a battle zone.

Again, that is incorrect. The Congress did that, after a court case requiring Congressional action on the subject.

Contrary to the assertion above, the point of capture IS relevant,

Again, this is weirdly odd. No authority has made this claim, and I haven't even seen it on the internet in comments to blogs. SO, you'll have to prove it. Good luck.

KSM was NOT captured on a field of battle as part of a military engagement. He wasn't even captured by the US Military.

Again, this is completely beside the point. No relevence at all. The only point that matters is that he was captured legitimately by a foreign military and handed over in accordance with the laws in Pakistan. You can try to protect KSM all you want, but making things up is just nuts.

The Executive branch had no authority to keep him in custody without bringing him to trial.

This is the same silly point you made earlier.

War on Terror. Our government is now 30 years into the War on Drugs.

Oh, you're right, lets surrender. Enough.  

By Blogger Elijah, at Thu Nov 19, 02:33:00 PM:

"In that regard, the U.S. Military may conduct targeted assassinations via drone strikes as part of the war in Afghanistan or Iraq, which wars were declared by CONGRESS, and courts aren't going to touch this. Note that it is not the CIA or the FBI firing these drone strikes; it is the U.S. Military--big difference. Like I said, this would be a completely different case if KSM had been captured by the Military as part of the war in Afghanistan. He wasn't. Facts matter."
.......................

Actually, geography and facts matter.
North Waziristan where strikes are currently happening, is in fact a part of PAKISTAN.

Also, the CIA does in fact operate drones and conduct strikes. Would you like a link?

Facts do indeed matter.  

By Anonymous Anonymous, at Thu Nov 19, 03:50:00 PM:

When was KSM Mirandized? Has he been, even now? And is anything he said or confessed to, (or, for that matter anything gleaned from his computer,) prior to his being apprised of his rights admissable in Federal court? If I'm the judge, I'm saying--No!

Good luck getting that conviction, Mr. Attorney General.  

By Blogger Dawnfire82, at Thu Nov 19, 04:09:00 PM:

Look, barracks lawyers!

"On these facts you cannot build a credible case that KSM is a legitimate Enemy Combatant..."

Status as such matters not a damn on who grabbed him. Ref: Jose Padilla. If a freaking bounty hunter had hauled him into the embassy in Islamabad he would still be an unlawful enemy combatant.

Why? Because he and his kind belong to a militant organization who wage war on the US and did and do not follow the rules of war, and so do not qualify as prisoners of war, and so do not receive the protections accorded prisoners of war. But they are still enemies, not mere criminals. Hence the term unlawful combatant. Strictly speaking, I don't think he has *any* rights save what our system forces us to give him as a human being. Read the Articles of War; the fates of captured unlawful combatants are to be determined 'by military tribunals.' And that's all they say; the details of such tribunals are completely up to the capturing power. In the age of Imperialism, he'd have been interrogated and promptly hung, the same as a pirate. Unfortunately, times have changed.

"Members of AQ captured by non-military actors (i.e., FBI or CIA) and outside a zone of battle will be treated as civilians by our courts."

Really? Because a bunch of Nazis (who belonged to the Abwehr; German MI) were captured in the US (far outside the 'zone of battle,' mind you) by the FBI and then executed by military commissions as spies. Because they were spies. (a crime which the UCMJ defines and for which it has the death penalty, by the way). Same thing happened to German spies and saboteurs (including one fellow who bribed an Irishman to blow up a dock) in World War I, I believe.

People are just making up whatever rules they think sound good, and saying that 'the Constitution says' whatever they wish that it said.

HAHA! Verification word is 'loser.'  

By Anonymous Anonymous, at Thu Nov 19, 05:44:00 PM:

Uggh. I think my dog has a better chance of grasping this.

@Dawnfire82: Your examples are instructive. The case in which the German saboteurs were captured and tried in a military commission is Ex parte Quinin. In this case the detainees were agents of Germany, against whom there was a Congressional declaration of war, which triggers Judicial deference to the Executive's War Powers as Commander in Chief. Result: legitimate military detention.

Jose Padilla: no declaration of war, no Judicial deference to Executive War Powers. Result: NOT legitimate military detention. Here's relevant quotes from Wikipedia's summary of the case:

"despite the legal precedent set by Ex parte Quirin, "the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat". The Second Circuit relied on the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where the U.S. Supreme Court had ruled that President Truman, during the Korean War years, could not use his position and power as Commander-in-Chief, created under Article 2, Section 2 of the U.S. Constitution, to seize the nation's steel mills on the eve of a nation-wide steelworkers' strike. The extraordinary government power to curb civil rights and liberties during crisis periods, such as times of war, lies with Congress and not the President. Article 1, Section 9, Clause 2 of the U.S. Constitution grants Congress, and not the President, with the power to suspend the right of habeas corpus during a period of rebellion or invasion.

As I said above, all these factors are relevant. Apply them to KSM: (1) no declaration of war; (2) captured outside a zone of combat; (3) not even captured by the military. Conclusion: NOT legitimate military detention. This is why the military's attorneys did not want him at Gitmo--they knew he did not belong there.  

By Blogger Escort81, at Thu Nov 19, 07:35:00 PM:

OK, Original Anon, I think I understand what your ideal scenario would have been:

KSM is captured in Pakistan, maybe CIA and/or FBI agents are present at the moment of capture, maybe not, but in any case, KSM is sent to Egypt by the ISI, which is not really a true rendition, because the U.S. never really has custody of him.

The Egyptian intelligence service is hopefully much less proprietary than European intelligence agencies would be, because of the big checks being written by Washington, and the CIA can pretty much do what it wants with KSM, interrogation-wise, while he is actually in the custody of the Egyptians (I am skeptical on this point, so this may be where we have an honest disagreement about the pragmatic effect of what you suggest). So, there is no difference on intelligence yield, in your view, correct? Nor would a U.S. court see through the fig leaf of non-U.S. custody, the same way Gitmo was pierced? "Sorry, Your Honor, the Egyptians had full control over KSM."

As to your point regarding AQ as civilians as construed by our courts, it is only AQ members captured by military personnel where there is actual shooting going on (a "zone of battle," if I understand how you are using that term) that can be put in front of a military court? So if an AQ fighter can make his way a sufficient distance from the field of battle, he is a civilian? Or if he sees a westerner he hopes is CIA SAD and not in uniform and turns himself in, he is a civilian?

You may in fact be correctly arguing the view of many U.S. judges and lawyers, but I would suggest that it is precisely this view that many find so frustrating, in the sense that the rules need serious updating to enable the kind of joint effort that the military, CIA, FBI and others need to engage in without worrying about the ultimate legal process that captured AQ go through or their ultimate disposition. We grab them where we can, zone of battle or no, milk the intelligence value, and lock them up until the conflict is over. The due process (to make sure the grabbed person is in fact a bad guy) should happen through some type of military court, if for no other reason than because of the Miranda issue.  

By Blogger Escort81, at Thu Nov 19, 07:35:00 PM:

This comment has been removed by the author.  

By Anonymous Anonymous, at Thu Nov 19, 10:56:00 PM:

@Escort81: I'm an attorney and my comments were more directed to the law as it stood in 2001 and as it still stands--not so much to an ideal scenario, which would involve a heinous death for KSM followed by a burial with pig carcasses. But yes, you're getting the point.

Custody is the keystone of the judicial system's Habeas Corpus analysis. A US court can't order the Egyptians to release someone. We don't need custody to conduct interrogations. Why buy the cow when you can get the milk for free?

As to the civilian vs. military issue, you're not quite applying the correct paradigm. The issue is properly framed as: Under what circumstances can a person be detained indefinitely in the custody of the military without recourse to the Judiciary as a check and balance on Executive authority? The answer depends on the factors I discussed above:
1. Congressional declaration of war and in a battle zone--lock 'em up and throw away the key.
2. Congressional declaration of war and an enemy agent (Ex parte Quirin)--lock 'em up and throw away the key.
3. No declaration of war, but in a battle zone--probably can still lock 'em up and toss the key.
4. No declaration of war, no battle zone--not a legitimate military detention. The Executive branch can't do this on its own.

Eric Holder has a hard row to hoe here.  

By Blogger Andrewdb, at Fri Nov 20, 12:50:00 AM:

Anon -

When can the government hold someone indefinatly without judicial process - the Geneva Conventions say until the end of hostilities. Remember the GCs apply regardless of whether the individual is wearing a uniform or otherwise a "lawful combatant." By your logic, we should have arrested Yamamoto, not shot down his plane.

Congress did adopt a resolution Authorizing the Use of Force on September 18, 2001. See here: http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

It is a modern "Declaration of War." After the adoption of the UN Charter, "war" is not permitted without the Security Council approval or in self-defense (which is what this was, remember we had been attacked).

There is lots to criticize the Bush Administration for how they handled the legal framework for the GWOT, but trying KSM in a civilian court will not end up well. What kind of precedent is it setting that evidence obtained under these circumstances is admissible? The current administration has hinted that they would continue to hold him even if he were not convicted. That's a good idea?  

By Blogger JPMcT, at Fri Nov 20, 01:30:00 AM:

It's remarkable how the Constitution STOPS being a "living, breathing" document when it suits Democrats.

The Constitution is also NOT a suicide pact.

There will NEVER be a declaration of war because we are not "at war" with a country, but with a philospohical movement.

Unless we stop counting the angels on the head of the pin and start acting like we are defending our way of life...then Anon had better spend his time boning up on Sharia Law.

Let the FARCE begin...  

By Anonymous Anonymous, at Fri Nov 20, 11:43:00 AM:

For those who may be interested in a dose of fact and reality, James Comey, the former Deputy AG under Bush, provides a very instructive and reasoned argument in today's WaPo

Or you could "listen" to DawnFire make an a*s of himself. Again. Your choice.  

By Blogger JPMcT, at Fri Nov 20, 12:04:00 PM:

"For those who may be interested in a dose of fact and reality..."

A short summary, by an attorney, of another attorney's controversial decision. Nothing to see here.

The article presumes that New York will NOT be in any more danger of a major attack than before the "show-trial". That is one HELL of a presumption. If I had show tickets in NYC for next spring, I would think twice.

Unfortunately, my brother's law firm is on Wall Street...just a few blocks away. THAT I cannot change.

The case for a military tribunal is simple: Security, Media control and the lack of a bully pulpit for the Islamokook.

Most attempts to use the tribunals were thwarted by left wing legal challenges...as if THEY had something better to offer.

But it is no longer worth aruguing about. As the attorney's say: RES IPSA LOQUITUR.

Let's reconvene this discussion sometime 4-6 years down the line when this legal action finally draws to a close and we can all comment on how it went down.

Somehow, I don't think DawnFire will be eating any crow.

KSM will probably be on a tour with OJ Simpson looking for the real perpetrator.

Time will tell...  

By Anonymous Anonymous, at Fri Nov 20, 01:55:00 PM:

It baffles me that anyone could continue to try defending the indefensible, against all reason. Obama supporters are just unwilling to recognize the horrible reality they voted to create, I suppose. Or, maybe they're just slow. Either way, this decision is a terrible one on every level. I hope someone overrules Holder.  

By Anonymous Anonymous, at Sat Nov 21, 04:59:00 PM:

"When can the government hold someone indefinatly without judicial process - the Geneva Conventions say until the end of hostilities."

The Constitution provides for very few limits on the Presidents power to hold foreign nationals outside of the United States. In fact, there is no explicit limit on the power, and while Congress can try to limit his power even that may not be Constitutional.

As to the Geneva Conventions, they do not apply. These men are not POW's, according to the plain language interpretation of the agreements.  

By Blogger Georgfelis, at Mon Nov 23, 12:30:00 AM:

So what happens if KSM is given a fair civilian trial, and the case is thrown out after years because of the Miranda or some other issue, and he is handed back to Military detainment?

A) He is found guilty in a military tribunal, executed, and is used as a rallying point for the Jihadi (and American Leftist) movement for the next bazillion years, much like Che and fellow mass-murderers.
or
B) He vanishes into detainment, and any future decision is waffled about until 2016 when Obama can dump it in the lap of some other poor schmuck.

Please note I did not assume the US would release this man, still breathing, back into the Real World. The probability is higher that the earth would be destroyed by a giant asteroid in the shape of a guitar (Tuned to G-Sharp).  

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