G
etting wrapped up in local issues can be so time-consuming – I just noticed that I’ve been missing out on the hilarious spectacle of Republican politicians all across the country (including Joe Lieberman, R – duped state) publicly soiling themselves with fear over the very idea that our great nation is capable of putting terrorists on trial. I’m told that the undocumented janitors at FOX News are looking into a class action suit over all the puddles they’ve had to mop up this past week at sub-minimum wage. (True? W
e report, you decide.)
No sooner did AG Holder announce his decision to try Khalid Sheik Mohamad and his four fellow terror douchebags in a Manhattan courtroom than Rudy “noun, verb, 9-11” Giuliani was hyperventilating on the teevee screen: “New York is already a target for terrorists. We announce that every day and talk about it every day. To add something unnecessary to that makes no sense.” Oh, Rudy, calm down, it’ll be OK. The grownups are in charge now! Maybe try not “announcing your’e a target every day” and then you and the few hundred Americans who still take you seriously will sleep a little better. (Remember how Rudy supposedly murmured to himself on the morning of 9-11 “Thank God George Bush is in charge”? I’m saying here, out loud, Thank God Obama is in charge a
nd the 9-11 families can finally see some justice! See some of their thoughts here.)
Of course Sunday the 15th was still coming up and Rudy’s little piddle was just a trickly prelude to the Sunday-show levee-breach of frightened Republican urine. This is the stuff of which Comedy Central montages are woven: “Can you imagine here where New York City is still a terror target and then you bring the mastermind of 9-11 here?” “Would a trial put the Big Apple at greater risk?” “Do you think it’s possible that they might get off?” “They use our prisons as incubators” “This is the biggest recruiting opportunity provided to Al Qaeda in decades. (Rove)” “This’ll be the biggest mistake we could possibly make in my opinion since 9/11. (Lindsay Graham)” “These five characters are coming to the United States of America!” “What happens if he’s acquitted??”
That same weekend Glenn “Glennzilla” Greenwald composed his already-classic observation “The Right’s Textbook Surrender to Terrorists” Just a taste: “This is literally true: the Right’s reaction to yesterday’s announcement — we’re too afraid to allow trials and due process in our country — is the textbook definition of ‘surrendering to terrorists'” It’s the same fear they’ve been spewing for years. As always, the Right’s tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it’s hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.”
Of course 
the real clown show wouldn’t start till the weekdays when Congressional asshats vied with each other for spinning doomsday scenarios if our Constitution is respected. Deliverance extra Louie Gohmert of Texas drawled between chomps of Cheezits, to general puzzlement, “Ah would rather be killed by a Terrist than be – than to have thaym see – legislay-tores running in fear cuz there’s some Terrist thrayt to the Capitol. Jest take me out. [chomp] We are cree-yating self-inflicted wounds.” Not to be outdone, flamboyant Arizona wingnut John Shadegg, who likes to trot 7-month old girls out onto the Congressional floor to act as a ventriloquist’s dummy against healthcare, helpfully provided tactics that Al Qaeda might try during the trials:
“If I were a terrorist outside the US, and KSM was going on trial in New York, I’d say, ‘Why don’t I find the judge’s cousin? Why don’t I find the bailiff’s sister? Why don’t I find the jailer’s brother? And I’ll capture them and hold THEM for ransom until KSM is released.””
This helpful suggestion came on the heels of Shadegg’s forced apology for THIS unbelievable remark regarding NY Mayor Bloomberg: “I saw the mayor of New York said today, ‘We’re tough. We can do it.’ Well, Mayor, how are you going to feel when it’s your daughter that’s kidnapped at school by a terrorist?”
I could waste the rest of my day putting up instances of the FEAR PARTY doing what they do best this week. It worked so well for them in 2002 and 2004, and they are such unimaginative shriveled specimens, that they continue to hammer on the fear forgetting how badly it worked in 2006 and 2008. We Americans didn’t stay in the fetal position forever after 9-11 (just a little too long.)
Josh condenses their whines this week into three categories, all spurious:
1) civilian trials give the defendants too many rights and protections and thus create too big a risk they’ll get acquitted and set free, 2) holding the prisoners and trial in New York City puts the city’s civilian population at unnecessary risk of new terror attacks, and 3) holding public, civilian trials will give the defendants an opportunity to mock the victims, have a platform to issue propaganda or gain public sympathy.
He handily disposes of the first two categories (just like former Bush DOJ officials Jack Goldsmith and Jim Comey did in the Washington Post yesterday) adding pungently:
On a more general level… since when is it something we advertise or say proudly that we’re going to change our behavior because we fear terrorists will attack us if we don’t? To be unPC about it, isn’t there some residual national machismo that keeps us from cowering even before trivially increased dangers? As much as I think the added dangers are basically nil, I’m surprised that people can stand up as say we should change what we do in response to some minuscule added danger and not be embarrassed.
…and finally pours special contempt and derision on the third category, that we have anything to fear or even dislike from whatever absurd bile the defendants may spew while on the stand:
[This worry is] so contrary to my values and assumptions that at some level I don’t get it. I cannot imagine anything KSM or his confederates would say that would diminish America or damage us in any way. Are we really so worried that what we represent is so questionable or our identity so brittle? … Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at the Hague advanced these mens’ causes? Or that, in retrospect, it would have been wiser to hold these trials in secret?
At the end of the day, what are we afraid these men are going to say?
What we seem to be forgetting here is that trials are not simply for judging guilt and meting out punishment. We hold trials in public not only because we want a check on the government’s behavior but because a key part of the exercise is a public accounting and condemnation of wrongs. Especially in great trials for the worst crimes they are public displays pitting one set of values against another. And I’m troubled by anyone who thinks that this is a confrontation in which we would come out the worse.
That’s why I’m so glad that we now have as Attorney General, not a creepy hack like Michael Mukasey whose first reaction to the decision was to bleat it “creates a cornucopia of intelligence for those still at large and a circus for those being tried,” but the calmly serious Eric Holder:
“I’m not scared of what Khalid Sheikh Mohammed has to say at trial,” Holder said. “And no one else needs to be afraid either.”
“I have every confidence that the nation and the world will see him for the coward that he is,” Holder said.
“We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is sturdy, our resolve is firm and our people are ready,” Holder said. “It is past time to finally act by bringing prosecutions.”
Sleep tight in your little bomb shelters, Fear Party adherents, the Grownups are in charge now!
Vern,
Please explain to the readers why (the legal basis, under the U.S. Constitution, laws, or treaties) enemy combatants (foreign fighters, whatever) captured by the U.S military on foreign battlefields (a) are entitled to U.S. criminal trial or (b) why that is the proper court for dealing with them.
Thanks.
Hi Rogue! I’m not an expert on legal or constitutional issues, and you’re probably also not, but when I read a consensus between reasonable Bush officials Goldsmith and Comey, and Obama’s AG Holder, and it makes all kinds of sense to me, I tend to give it credence and link to it ONE MO’ TIME: http://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html?hpid=opinionsbox1
Paragraphs out of that essay which will help answer your question (although it’s all worth reading):
…Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs…
In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.
One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions’ validity. This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.
By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.
[It goes on, I think you should click on the link and then think about if a lot of the folks from the “herd” which you are so separated from may indeed be overreacting and fearmongering. Running off to a family excursion now, have a nice weekend!]
PS hope you are a better, closer, more careful & fairer reader than the Crowlster!
Good post, Vern. But, as Greenwald points out, what the administration is actually doing is creating a multi-tiered system of justice for detainees. When they feel they have an airtight case, they’ll go to civilian trials. When they have things to hide and want to take advantage of heresay evidence, they’ll go to military tribunals. And when they just plain fear a person but have no case against them, they’ll be indefinitely detained.
Point is, I’d be careful about implying that the administration has suddenly seen the light and is completely moving away from Bush-era detention and prosecution policies…many of which our highest court has struck down.
Vern,
Your article cites no legal authority for trial in a civilian criminal court. Neither the authors nor Holder were able to cite any legal authority. They have made it up out of whole cloth.
Worse, the authors (intentionally, it seems) obliterate the distinction between “enemy combatants” and terrorists, in general. The distinction is important. None of the cited examples were “enemy combatants”, foreign fighters captured on a battlefield – Reid, Padilla, the Lackawanna Six, and Moussaoui. Only Lindh qualifies, but was tried in a civilian court because he is a U.S. citizen.
The decision to use civilian courts is disturbing to liberals, as well as conservatives. (See here, http://www.slate.com/id/2236146/pagenum/all/#p2; http://chicagoboyz.net/archives/10193.html). Both are right that such a trial will create bad law and precedents. Examples include sanctioning “show trials” (which, this appears to be), obliterating the distinction between military (martial law) and civilian tribunals (a threat to our rights in a civilian trial), and creating bad precedents that sanction unsavory interrogation techniques in U.S. criminal cases.
Perhaps, Democrats like yourself should “leave the herd” on this one, rather than blindly following whatever political decision the White House makes. (Many Republicans learned that lesson with Bush. Take my word for it – don’t go there.)
Rogue Elephant,
If we are in a “war on terror”, and that war knows no territorial boundaries, then anyone we apprehend in that “war” is an enemy combatant, including Reid, Moussaoui, etc. Your “distinction” is a distinction without a difference.
In addition, we have quite successfully tried and locked away for life terrorists like the original Twin Towers bombers in our civilian courts. How’s that for precedent?
What a sad display of cowardice and transferrence the Leftist propaganda machine is on. Because they are afraid to treat terrorists like terrorists and war criminals like war criminals, lest the anti-American lobby of the rest of the world say they’re acting like George W Bush, they put on this sad little show and call the people who they just got done accusing of over-reaction, war mongering, and using an unnecessary show of strength, as being afraid.
That’s because the Left don’t live in the real world with the rest of America – a majority of which thinks that giving international terrorists American civil rights is a bad idea. They have a tendency to build up murderers as victims and scapegoats. At least enough to bail them out of trouble. (hello, OJ? Hasan?)
They can only tell you what to fear (american exceptionalism) and who is to blame for the terrorists (we are).
TERRY with people like far left vern . in his upside world . if we are at war and shoot one of them he would bring us in for murder .
Perhaps, Democrats like yourself should “leave the herd” on this one, rather than blindly following whatever political decision the White House makes.
Rogue, you don’t need to worry about that with me, I criticize Obama more often than not; I had been leaning toward civilian trials already and was glad to see him go that route.
And Crowley just rants and raves about who knows what, but that’s fine because it’s a free country and that’s just what he does. I would like him to know that he and his loved ones will be safe from Khalid Sheikh Muhamad and gang, they are not going free, they will most likely be executed, and the world (including any possible terrorist recruits or sympathizers) will see that American justice is effective and fair. And Terry can go howling safely into the night. The grownups are in charge now!!!
Crowley,
Name me one, just one, Democrat who “fears” American exceptionalism. It isn’t that we fear it…it’s that we fear what MADE US EXCEPTIONAL IN THE FIRST PLACE is going bye-bye…to be replaced by more of what makes us just like a lot of other countries.
You know, replaced by things like torturing people, illegally spying on citizens (that little gem drove Bob Barr out of the Republican party), starting unjustified wars…you know, little trifles like those.
I am satisfied that gitmo is in the process of being shut down by sending the prisoners to their respective “new homes” here and abroad. This is something that should have happened on Bush’s watch, but he chose to do nothing except promise to close that base. Let’s move onto a new chapter of doing the best and more honorable things. Great post, Vern.
Oh and here are additional comments from family members of 9/11 victims, per the above link given by Vern:
These 9/11 family members all say they agree that holding detainees without charge in Guantánamo is a betrayal of American values and they look forward to true justice being served in federal court.
“My son gave his life to save those trapped in the Twin Towers,” Welty says, “and it does not honor him that we violate our Constitution in retaliation for what happened on September 11.”
I still can’t figure out how that Giuliani character ever got himself associated with heroism and/or expertise on security issues. A lot of people gave him a pass after 9/11.
LOOK AT THE LEFTIES RUN A MOCK here , commi red , far left vern . the anti american annoster = all with the pre 9/11 thinking .
Oh look, here comes the Not-So-Great One with his far right, post 9/11, subvert the Constitution thinking.
anon,
You can wallow in ignorance if you like. But, the distinction is an important legal distinction. And the the issue here is rule of law.
Under international law (treaty and custom), an “enemy combatant” (or “unlawful combatant”) is a civilian engaged in armed conflict with the military, (not accorded POW rights under the Geneva Convention). There is a body of international law governing military conflicts, including how different parties should be treated. (GWB did not just make it up.)
That law says that these “unlawful combatants” are not POW’s. But, nor is there any legal precedent (domestic or international) for treating such combatants as criminal defendants under U.S. law. (That would be an extraterritorial project of U.S. criminal law that other countries and thinking people should find troubling because it would also justify foreign nations in projecting their criminal laws here.)
There is no basis in law (domestic or international) for obliterating the distinction between civil and martial law (a distinction recognized in the text of the U.S. Constitution, itself) by categorically identifying an individual’s act as “terrorism” (regardless of other facts or circumstances).
Rogue Elephant,
As long as you’re citing International Law, how about advocating that the United States be held to account for torturing according to the U.N. Convention on Torture (championed by Ronald Reagan, we’re a signatory and ratifying nation to the Convention).
So, is your argument, then, that the U.S. violated international law then, so let’s make just abandon the rule of law altogether and make up law as we go along?
Whether waterboarding (or sticking someone in a box with a caterpillar) constitutes torture is an unsettled question of international law. Political rhetoric doesn’t make it so. The Fourth Amendment’s protections against coercive interrogations don’t apply to unlawful combatants. (And every coercive interrogation is not torture.)
As a footnote, I should point out that unlawful combatants have customarily been subject to coercive interrogation and faced military execution. They may offend liberal sensibilities, but any individual who takes up arms against a military force does so with full knowledge that the military is likely to summarily kill them.
No idea why Rogue Elephant would get so exercised about this. There would be precedent and justifications for going either route – civil or military – as Goldsmith & Comey & Holder all know. They are no “civil liberties extremists” or “far leftists.” Despite all the worried semantics, I prefer that the entire nation and world watch unquestionable justice happen to the 9-11 criminals. It is very important.
The U.S. State Department has recognized “submersion of the head in water” as torture in other circumstances, for example, in its 2005 Country Report on Tunisia.
The United Nations’ Report of the Committee Against Torture: Thirty-fifth Session of November 2006, stated that state parties should rescind any interrogation techniques, such as waterboarding, that constitutes torture or cruel, inhuman, or degrading treatment or punishment.
Political rhetoric doesn’t make waterboarding torture? Fine. Then neither does it make waterboarding NOT torture.
Vern,
To sum up my concerns – I am less concerned about the unprecedented extension of civil criminal tribunals to unlawful combatants (who, I’ve explained, are distinct from these other cases) than I am about the threat to our civil liberties by obliterating the distinction between civil and military tribunals. It is our liberty that I am concerned about (as are many on both sides of the ideological aisle).
Anon,
It is unsettled whether waterboarding is torture. The State Department is not a tribunal to decide the matter. (That report is a political opinion, no more binding than yours or mine.) Likewise, the UN Committee makes a normative recommendation (another political statement) that is not law.
The question remains unsettled.
Unsettled? How about traditional American values? Or common decency? Does any of that resonate with you? How about the views of a former POW, John McCain? Any of that carry any weight with you? Do you have an innate sense of right and wrong? Do you have a conscience?
Probably not.
anon,
It must be nice to have such self-righteousness, unconstrained by law, fact, or reason.
Whether or not waterboarding constitutes torture would not have been an unsettled question in the American conscience pre 9/11. It would have overwhelmingly been considered torture. You would have been considered some sort of twisted monster to not think so. Post 9/11, some Americans are now willing to look the other way.
Rogue Elephant,
Are your reasoning faculties unaffected by morality?
Your last two comments have no basis in fact. They are suppositions.
Morality? Please explain your moral framework for war.
In addition, I don’t pretend to substitute my own personal morality for law, as you do. You confuse law with what you think it should be.
Substituting one’s personal morality for law is the hallmark of a “liberal” (so-called), to whom rule of law means nothing. If liberals don’t like the law as it exists, they should go through the proper means to change the law.
Otherwise, you’re just engaging in sanctimony.
I’ll do that after you explain your moral framework for torture.
If a person being waterboarded believes they are going to die, can you tell us if mock execution (threat of imminent death) is illegal under U.S. and international law?
A 1994 federal law prohibits U.S. nationals from performing torture upon penalty of up to 20 years in prison. In that law, torture is defined as;
http://www.law.cornell.edu/uscode/18/usc_sec_18_00002340—-000-.html
I think your pre 9/11-post 9/11 point is more important than you know.
What 9/11 does is force people to confront ugly realities of life – war, terrorism (specifically, fanatics driven by an religious ideology that sanctions mass murder). That is reality. You may choose to remain warm and cozy in a moralistic cocoon that ignores that reality. But, history and reality require questioning how these things fit into our moral frameworks.
The framework of international martial law reflects human history. You can choose to ignore it. But, the human reality is ugly. We, Americans (unlike many people in the world) understand little of that reality – war, hunger, death.
If you have a hard time with it, then you’re in good company. Philosophers and theologians have struggled with it for millenia.
Too bad I can’t share your moralistio snuggie.
I am about the threat to our civil liberties by obliterating the distinction between civil and military tribunals. It is our liberty that I am concerned about (as are many on both sides of the ideological aisle).
Well, taking you at your word, that seems like a legitimate concern, if somewhat theoretical. But a concern to be balanced against others. To me, a civilian trial of these terrorists is our best, smartest, and most effective response to the greatest mass murder on American soil. NOT invading some country that had nothing to do with the attack. NOT creating overseas gulags and suspending our Constitution in ways major and minor. But showing the world that American justice and liberty are impervious to terror and that we can exist on a far higher moral level than these psychos and still defend our safety. The more we argue about it, the more brilliant it seems.
And let me say, you are a better sparring partner than Crowley or the Grate One or Barney Frank’s dining room table (all interchangeable and uncomprehending.)
Why not send these people back to their place of capture?
Iraq and Afghanistan both have governments now that can hold trials and executions within a week or two for all of those people held in Cuba.
Cook,
The answer to your question is that, according to the United Nations Convention Against Torture (we are a signatory and ratifying nation, and we honor the international treaties we sign, right? That’s the American way, right?) prohibits the return of people to their home country if there is reasonable belief that they could be tortured. We obviously have to take that into consideration.
The Convention also REQUIRES signatories to prevent torture within their borders. Under this Convention, waterboarding fits the definition of torture. Actually, the bar for what constitutes torture is set quite low.
http://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture
Rogue Elephant’s post 9/11 worldview, articulated in comment 30, is simply a more sophisticated way of saying “be afraid…be fearful”.
I refuse to be ruled and motivated by fear. And that’s different than seeing or not seeing reality and how one responds to reality.
anon,
Gee, talk about a naked straw man argument!
On a final point, if the torture (waterboarding) issue were as clear-cut and black-and-white as you argue, then you should condemn the Obama administration for not bringing these criminals to justice.
Which is worse, an administration that tortures or its successor who tacitly endorses that torture by not seeing justice done?
Rogue Elephant,
I do condemn the Obama administration for not prosecuting torturers. Waterboarding is torture as defined by US law and anyone who took part or authorized it should be prosecuted. And I condemn the Bush administration for allowing torture in the first place.
That said, Obama in January ordered that government agencies must abide by interrogation limitations in the Army Field Manual, which bans waterboarding.
hey all you far leftties out there instead of waterboarding lets give them milk n cookies
Great Noe,
Name me one person here who has suggested giving detainees milk and cookies. Shows how much respect SOME of you far righties really have for the rule of law.
Anyway, thanks for that completely ridiculous observation.