Posted by: theoptimisticconservative | November 14, 2009

One Thing Is Clear

The Obama administration’s decision to have a civilian trial for the 9/11 terrorists is a political one.  The attorney general hasn’t foresworn military tribunals:  Abd-al-Rahim al-Nashiri, the USS Cole attacker, is to be brought before one.  There is no doubt of the guilt of the 9/11 plotters:  Khalid Sheikh Mohammed and the four others being sent to New York for trial.  No trial is required to establish that they committed the crimes they are charged with.  The defendants even told their military judge in December 2008 that they wanted to plead guilty, dispense with a trial of any kind, and proceed directly to execution.  In fact, they outlined at the time precisely what they were prepared to plead guilty to, a list that extends well beyond the 9/11 attacks.

Nothing relevant to deciding the fate of the terrorists will be revealed in the civilian trial.  Eric Holder’s assurance that he is seeking the death penalty is risible.  Of course he is:  the idea that it was necessary for him to seek the death penalty in a civilian courtroom in New York, if justice was to be comprehensively served, is what makes it so.  Since it was entirely possible, and equally just, to try KSM and his collaborators before a military commission, it’s flashing-neon obvious that for Holder, the point is not to seek the death penalty but to have the proceeding in a civilian court.

The question is why.  The suspicion of the left that military commission trials are somehow less subject to federal civilian supervision is manifestly idiotic.  The Department of Defense is an executive agency subject to the supervision of the president, and to the inquiry (and defunding) of Congress, just like the Department of Justice.  Military commissions operate by rules set by the federal executive.  They are not some form of Wild West posse, merely because they are not as well known to the mainstream media as the Ninth Circuit Court of Appeals.  The terrorists tried before them have whatever representation they want, including civilian attorneys; and by the reasonable-man theory the commissions have performed very sensibly, showing no apparent tendency to over-convict.

It is the statement of a political opinion, not the proclamation of a self-evident proposition, to say that transnational terrorism “ought to be” countered through the use of the civil justice system, rather than through military mechanisms.  The Obama administration has discussed dealing with terrorism as a civil justice matter on a number of occasions, but there is nothing to suggest the American people therefore agree that the use of military mechanisms is, by implication, improper.  Obama and Holder must, in fact, not think it’s improper, since al-Nashiri is scheduled to be tried before a military tribunal.

So why is Holder so anxious to have a civilian trial for the 9/11 plotters?  Andrew McCarthy offers one theory.  Given Holder’s history, and the composition of his Justice Department, it is not an improbable one.  Readers unfamiliar with McCarthy’s analysis on this topic should follow the links to his earlier posts as well.  They should also familiarize themselves with the work of Holder’s firm, Covington & Burling, at which he was a senior partner before joining the Obama administration.  (Start with this piece and this one.)  Covington & Burling is one of the principal law firms representing GTMO detainees, and it, along with the “Center for Constitutional Rights,” a radical left organization (founded by William Kunstler and Arthur Kinoy) that has specialized in representing the GTMO terrorists, has supplied a number of the appointed officials in the Holder DOJ.

Mere cynicism would recognize that Holder’s old firm and the CCR can make much more hay, publicity-wise, of a civilian trial in New York than they could of trials by military tribunal.  But McCarthy’s thesis is that these lawyers’ intention is, through disclosure, to get as much into the public record as possible about the Bush administration’s handling of detainees, for the purpose of making it available to “universal jurisdiction” activists so they can build cases against American officials overseas.

One all-important thing about McCarthy’s own case:  it doesn’t actually matter what Holder and his DOJ officials intend to do.  I don’t need to argue what their intentions are, and any attempt to make that the issue is a big head-fake with a red herring.  Regardless of what they intend, the effect of moving KSM and his cohort into the civil justice system is virtually certain to be exactly what McCarthy predicts.  Since KSM et al are guilty beyond a shadow of a doubt, the strategy of their defense team will be to get all the dirt it can on the government.  Ostensibly, the implied objective of that strategy would be to induce the jury to convict on lesser charges, and/or to obtain some lenience in sentencing.  Because the process itself has a well-developed methodology in the US justice system, it’s possible to invoke the theoretical objective of any defense lawyer in a like situation, and pose his approach in those terms.

But that abstraction is unconvincing.  The prosecution has to win this one – not just win it, but get its death penalties.  That’s not just logically obvious, given the facts and the universal knowledge of them; it’s politically obvious.  Holder and Obama both have to know that little about this trial can redound to their political credit, especially in terms of 2010 electoral politics.  If it’s still ongoing during the campaign, the “visual” of KSM & Co being diligently represented by American lawyers in court, as a showpiece of Obama-era antiterrorist policy, will cost the Democrats more votes with every headline.  If it’s over, we have to assume the defendants will have been convicted:  should they not be, Obama could probably kiss his majorities in Congress goodbye.  Average Americans really are not in favor of acquitting obviously guilty terrorists in civilian court, no matter how many people disagree with the government’s interrogation methods (and polls suggest most Americans don’t).

This feature of the logically-projected future brings up another point, which is that Holder and the DOJ don’t expect the revelations of government agency conduct, made through trial disclosure, to result in any charges being brought against government officials.  How could they?  The Justice Department has already reviewed all the actions that could be revealed in disclosure, and concluded that there is nothing to prosecute.  As McCarthy points out, even the unsanctioned CIA interrogation techniques that produced so many headlines earlier this year occurred in 2002, were referred for investigation shortly thereafter, and had been deemed non-criminal by the Justice Department in 2004.  (Moreover, all his vague protestations notwithstanding, Obama has never categorically foresworn using any interrogation technique; he has merely, like Bush, reserved the prerogative of decision about them to himself.)  There is no prospect of indictments against government officials coming out of the KSM trial – nor would a trial be needed, to expose the acts in question, if there were.  Everyone who needs to see the record of the Bush administration to decide if indictments are in order has already seen it.

The decision to hold a civilian trial for the 9/11 plotters therefore doesn’t parse as an obvious ploy from this angle either.  And again, regardless of the intentions of Obama and Holder, the effect of a civilian trial will be to get information about Bush-era handling of detainees into the public record through disclosure.  It is useless to argue that this won’t happen; of course it will.  The extent to which it involves the forced disclosure of national security information will depend, as McCarthy indicates, on which judge presides over the trial.  Even if a judge favoring the maximum public disclosure is challenged on his evidentiary rulings (unlikely, since the challenge would have to come from the Obama administration itself), such a challenge would have to crawl through the courts, and would end up setting a precedent – just as the judge’s original rulings will.

It is a valid question whether there even ought to be judicial precedents regarding the compulsory disclosure of national security information, when the situations at issue involve the trials of foreign combatants who plotted to blow up the World Trade Center and the Pentagon, and who collaborated in killing 3,000 Americans.  This is another of those things that are not self-evident, but are in fact a matter of political opinion.  The case that the judiciary has no business compelling the disclosure of national security information – including the names of Americans who interrogated enemy combatants – in a civilian criminal trial, when the larger enterprise in question is a war for the survival of our nation and way of life, is convincing to an awful lot of the American people.  Condemning the many ordinary Americans who hold that opinion is not an argument, it’s just a mindless partisan rant.

And as to the use our national security information could be put to, by foreigners anxious to build “universal jurisdiction” cases against Americans, of course this could happen.  As McCarthy outlines, the attempt is already underway in Spain – where an indictment of Israelis was already obtained in Spanish court based on their alleged actions in Gaza in 2002.  Complacent certainty that Europeans wouldn’t do this sort of thing to Americans is badly misplaced:  some would.  Complacent certainty that it’s a meaningless gesture is also misplaced.  You won’t be under indictment by a Spanish court (or, who knows, a Cuban or Venezuelan one), but it will matter to any Americans who are:  it will cost them money to retain representation, limit their options for travel and employment, and leave them under a perpetual sword of Damocles, utterly dependent on the character of the US administration and its likelihood of extraditing them for foreign trial.

Moreover, it wouldn’t take terrorist organizations more than a nanosecond to figure out a way to incorporate this whole dynamic into the process of bargaining for detainees.  That’s on top of the even simpler and more obvious option to target individual Americans for assassination, since their identities, and the charges against them, would be publicly available.

No outcome of “liberal Western” justice can come from this civilian trial approach.  There is no justice obtainable through the civilian system that is not equally obtainable through a military tribunal.  Using the civilian system merely ensures that activists can engage in political posturing, both in the USA and abroad.  That posturing could have serious consequences for people who can’t be indicted under the law because they didn’t break it.

Going out of your way, in carrying out executive responsibilities, to invite consequences on people for actions that aren’t crimes, is the opposite of the rule of law.  It’s executive power being wielded against citizens in a manner that is, effectively, unconstitutional.  Once more:  it doesn’t matter whether this is Obama’s or Holder’s intention.  The possibility – in fact, the probability – of the effect is something that they should recognize, and rather than courting, seek to avert.  This is a real world we live in, not a fantasy land in which activists can make a career of striking poses, at the expense of others, and never generate any actual consequences.  The consequences are very real, and the damage to morale, and willingness to perform their jobs, among intelligence and law enforcement officials and career Justice Department lawyers, would be only the beginning.

“Whom Obama can’t indict, he gets Spain to indict for him.”  If it happens on his watch, he will have done it himself.  It’s quite obviously foreseeable; Andy McCarthy has outlined the process in excruciating detail.  It can’t be argued that it wasn’t foreseen.  Should US policy take such potential consequences into account?  Do you even have to ask?  That’s what the idea of “national security information” is all about:  forestalling the consequences of other nations, and enemies foreign and domestic, knowing our national security business.  There is no excuse for this decision.  None.

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Responses

  1. “There is no excuse for this decision. None.”

    Sure there is. If you want to reduce this country to no more than a bigger version of Belgium, then you do what Holder and Obama are doing here.

    We’ve all heard the crazy talk that Obama is a Muslim plant in the WH and he wants to damage America accordingly so that we’ll falter and Islam will rise, etc… This is, of course, absurd. However, if he actually was a plant, he would probably do just about everything he’s done so far. Hypothetically, if you were Prez and your goal was to weaken this country as much as possible (within the constraints of our political system), how similar would your actions be to Obama’s so far? (The jury is still out on Afghanistan, but it’s not looking good – and the window is closing).

    I detest just about everything Obama stands for. I’m developing a strong dislike for Obama the man too (our Narcissist In Chief). I get the impression that maintaining the greatness of this country is not his highest interest. He seems more interested his political fortunes and of making America just another one of the “community of nations” – no better or worse than any others. It dispirits me.

    I try to console myself that this will all lead to our next “Ronald Reagan.” I’m very worried though about the damage he does that can’t be undone.

  2. Some might argue that a court not part of the executive branch, with a jury of civilians and not subject to challenge of its legal authority might be a good thing.

  3. Richie – I agree completely. I hate the idea that our President truly dislikes his own country but I don’t know what else to think.

    Fuster- I take it you’d be in favor of having our police departments go over and fight our wars for us. They would have a more appropiate mind-set to capture an enemy who will have their day in criminal court.

    Along that same line, is anyone worried that the judge will disallow most of the evidence because of how it was obtained?

    What a foolish, myopic stunt by the administration.

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  5. KTH, having police forces fight wars doesn’t have anything much to do it. However, when you capture them and bring them back alive, you pretty much have to figure out what to do with them. It seems that there are a whole big bunch of rules and stuff you’re supposed to do.
    If you decide that you want to kill them, after a bunch of years have gone by, it seems you just have to have a trial first.
    Seems best, since you already waited so long, to have that trial in a setting that avoids all those extra appeals that those military tribunals were inviting, what with all those pesky Supreme Court reviews and all.

    And I doubt that there will be any dearth of allowable evidence. You might even think that the government thought about that before deciding to file the case.

  6. The Obama administration is eager to prove to the world that we are a nation under the rule of law–preferably international law. Sacrificing individual Americans (especially those who served in administrations other than their own) is worth it to them if it is necessary to “prove” America’s “legality” in the eyes of other nations and the UN.

    • Margo, which Americans are to be sacrificed during the trial of KSM and the others
      and how are they to be selected as offerings?

  7. “However, when you capture them and bring them back alive, you pretty much have to figure out what to do with them.”

    I agree fuster. It seems to me that leaving those guys in Gitmo until the cows came home was a perfectly reasonable thing to do with them.

    • No Ritchie, it really isn’t. It wasn’t reasonable at all. It wasn’t even very smart.
      Leaving aside every other consideration, when you decide that your government should operate secret permanent detention centers, the government probably shouldn’t go ahead with the idea of publicizing them.

      • fuster, I would agree with you if we were referring to American citizens arrested in this country. But since we’re talking about foreigners picked up in foreign lands and brought to a base in Cuba, a detention center like Gitmo sounds like a very reasonable idea.

  8. Margo, I suspect you’re right – certainly at least to a certain degree. If I had my druthers, I’d pull the US out of the UN entirely and have instead a League Of Democracies of some sort. I’m sure the Obami and like thinking peoples would go apoplectic about this, but the collapse of the UN (which I assume is what would happen when we pulled out our financial and political support) would probably be one of the best things for this world. All those non-democratic govts would lose a ton of the legitimacy that they so need and crave.

  9. These people allegedly committed mass murder in the USA without legal excuse in US or international law. As such, if duly convicted before a court of law, they will be convicted as criminals and punishable accordingly.

    It is moot whether they are combatants in a war between the US and some foreign entity. If they were war combatants, and if their actions in toppling the Twin Towers had been in furtherance of such a war, then the only question that would arise would be whether or not those actions were or were not war-crimes. In the civilized world, alleged war criminals, when apprehended, are tried before the international tribunal in the Hague according to the Conventions which apply in such cases. The US does not subscribes to the proposition that alleged war-criminals can be dispatched summarily by their captors. Neither are they subject to the military justice system of their captors save in a few well defined circumstances. These few circumstances do not apply to these men.

    However, the US has a problem with the International Tribunal – we do not recognize its jurisdiction to try our own combatants. As a result, we are faced with an inherent contradiction if we send these people to the Hague for trial as alleged war-criminals (Like Radovan Kadadec). This difficulty is not the fault of this Administration specifically.

    So it would seem to me that we are left with either release, indefinite internment (problematic with a ‘war’ so ill-defined as the so-called “war on terror”), or trial as civil criminals. The Justice Department has opted for the latter course.

    Now, irrespective of the forum before which these people are to be tried, the question of whether or not they have supposedly admitted their guilt is utterly irrelevant to their right to have a trial. If on arraignment at their trial they decide not to contest their alleged guilt, then the court will do what a court is uniquely competent to do – convict them. In the civilized world people are not convicted by executive diktat. Once convicted, the court may impose whatever punishment is provided under law.

    The US is a nation built on the rule of law. It was the US that insisted that the Nazi leaders be indicted and tried before the Nuremburg Tribunal. The USSR, French, and British would have been perfectly happy to have them put up against a wall and summarily shot.

    It is a disturbing fact that in its overbearing and myopic hatred of Obama, the far-right is trying to rationalize the discarding of a tradition of ‘rule of law’ which goes to the root of what we are as a nation.

    The UN doesn’t give legitimacy or otherwise to any form of government. It is merely a forum of representation. As such, its existence suits the US – even when its actions (very infrequently) inconvenience us.
    There are only a few countries in the world which have governments similar to our own. These are the ‘liberal’ (pardon the expression) democracies. These are the nations where those who exercise the executive and legislative powers of the state are chosen by the people who are subject to those powers, where independent courts administer and interpret the law, and where the principle known as ‘the rule of law’ applies. They are: the US, Canada, Australia, New Zealand, Switzerland, Norway, Iceland, and the countries of the EU.

    • Yes – a tribunal – not a domestic civilian court. We have a process – a military tribunal. That would seem the apt comparison to the Nazi trials at Nuremburg.

  10. RE — your point at 1:45 AM is, of course, a rather obvious take on the motivation of the administration for this KSM move. I continue to prefer arguing the demonstrable, though. We can speculate as to what’s going on in the minds of Obama’s inner circle, but merely casting doubt on it is enough to undermine that line of argument.

    What can’t be undermined is that (a) holding a civilian trial will result in exposure of national security information, and (b) we have every reason to assume Obama, Holder, and everyone else involved is well aware of that.

    fuster, you indirectly raise a good point at 3:04 AM: that the presumption that international terrorists should receive due-process-of-law trials is what opens the door to arguing what due process of law is. Of course, there are many people who believe that invoking the concept of a judicial process for these terrorists at all just ends up bastardizing both mechanisms: the judicial approach and the military approach.

    It was precisely because they did NOT dismiss the idea of operating under a set of legal constraints that those in the Bush administration arranged for detention and military tribunals. I suppose you are aware that the current guidance for military tribunals (or commissions) was drafted, with bipartisan agreement in Congress, in the wake of the Boumedienne decision. Therefore, anyone who still thinks KSM would not be getting a fair shake with a military commission trial should (a) address his concerns to the Democrats and Republicans in Congress, and (b) show as much concern that al-Nashiri get a civilian trial as he does that KSM get one.

    • There are well-tried procdures used by courts to ensure national security is not compromised in the taking of evidence. Obama, as a lawyer will be well aware of this.

    • Of course there is also the thought that terrorists are akin to pirates. Last I knew the penalty for piracy is still rather drastic, and with limited (or no) due process rights whatsoever.

  11. opticon, I’m sure that you’re also aware that those revisions are currently being challenged and that some people, including John Hutson, will testified to Congress that the revisions haven’t resulted in worthwhile courts.

    http://www.piercelaw.edu/johnhutson/

    • Yes, I am. I’m glad you bring this point up. Holder has not advanced it as the reason for moving KSM to NY for a civilian trial, but it’s as good a reason as I can think of to prevent any government from ever doing anything that some element if the citizenry doesn’t like.

      I can post brief after brief by experts explaining in detail why we should not pass any of the health care reform bills that have arisen in Congress this year. Indeed, serious and principled objections have been voiced by policy experts to almost everything Obama has wanted to do since taking office. I’m glad you see the wisdom of ensuring that even if he gets his proposals enacted through due process of law, we refrain from actually implementing them, or at least implement them selectively; e.g., applying cap-and-trade regulations only to “Blue” states, or only to billionaires who have spoken in favor of them.

  12. Zionism! One of the advantages in a public show trial of these particular defendants is the international focus that can be brought on the phenomenon politically referred to as Zionism. One of the defendants, KSM, claims to be the perpetrator of the death of a prominent Jewish ethnic journalist. Zionism,sells TV air time internationally, a guaranteed hit.

  13. I ‘have” not the “will” to have amended the word before “testified to Congress” in a timely fashion.

  14. Unfortunately, the government does not get to decide exactly which individuals will be sacrificed; the enemy makes that determination.

    One obvious class of people is composed of the mililtary and intelligence agents who dealt with the defendents in these trials. The defendents will very likely try to show that these agents transgressed international standards or laws, and various other countries will then be free to bring complaints against them in international tribunals or their own courts. Even those carrying out the prosecution will “enjoy” publicity among certain folks who issue and carry out fatwas. Finally, the trials will present opportunities like the Danish cartoons to instigate rage and riots against Americans and our allies worldwide.

    Haven’t we all observed this process before? Or did you read about any imams stating, “Denmark has just demonstrated the beauties of free speech–we ought to respect and admire that!”

    • Margo, I get a different idea reading this than I did reading that prior comment about sacrificing people in prior administrations. That idea seemed far-fetched.
      This latest one does as well.
      People in service to the country are not “sacrificed” by testifying to their actions.

  15. The Admiral doesn’t want to understand that these
    ‘gentleman’ don’t operate by any known flag,
    eschew any identifiable uniform, they are Saudi, Pakistani, Yemeni, but they operate using irregular
    warfare, so they are ‘unlawful enemy combatants

    • Who decides?
      How does a prisoner become an unlawful enemy combatant?
      And what are the rights of same and obligations of those holding UECs?

      • “How does a prisoner become an unlawful enemy combatant?”

        A prisoner does not become an unlawful combatant. He already is an unlawful combatant when he is captured. There is a legal definition of what makes him an unlawful combatant – and KSM meets it – it just isn´t accepted by people who claim to believe in the rule of law but abandon the law whenever it goes against their liberal instincts.

      • As I understand it there is no such creature known to international law as an “unlawful combatant”.

        KSM is either an enemy combatant in a subsisting war, an alleged war criminal, or an alleged ordinary criminal. If he is none of these he is in unlawful detention (unless steps are taken to have him deported as an illegal alien).

        It seems clear to me that a civilian who murders people in the US (whether that civilian is or is not a US citizen, and whether or not his victims are US citizens) is a criminal. The 9/11 killings were not done by agents of a foreign government, nor in furtherance of a “war” as that term is understood in law. These legal issues have all been the subject of learned legal papers in the context of the IRA terror-campaign in Northern Ireland. The Brits never considered the IRA as “combatants”, or their terror campaign as a “war”. They certainly interned suspected IRA members without trial, not as prisoners of war, but as civil internees under emergency legislation. However, any persons, IRA members or otherwise, whom they had evidence against, they prosecuted criminally. One distinction was made. Members of the IRA (and Loyalist terror groups) were tried by non-jury courts because of the possibility of juror intimidation by their terrorist comrades in the very small community that is Northern Ireland (pop. 1.5 million). The Italians try Mafia criminals in like manner. I would suggest if we can try our own Mafiosi in ordinary courts, we can try the (much less dangerous) people in Guantanamo similarily.

  16. “Who decides?”

    Eric Holder, apparently.

  17. Peterwise, as a criminal you are entitled to the protections of US law if you are a US citizen or resident. If you are someone who kills American citizens in a foreign country as an enemy combatant who does not fit the definition of a legal combatant, you are entitled to being shot when captured, or detailed, or anything else.

    If you are a legal combatant, you are entitled to being held for the duration of the conflict. YOu are not entitled to a trial.

    Non-legal enemy combatants should not receive BETTER treatment than legal combatants (as defined by the Geneva Conventions), but that is exactly what Holder proposes to give them.

    • I suggest you read my post again.

      All persons resident in the US are subject to the criminal law of the US, and equally protected by it while here. I never suggested otherwise.

      If you are someone who kills a US citizen in a foreign country you are subject to the criminal law of that country AND to the criminal law of the US. This is a jurisdictional peculiarity which applies to murder wherever it occurs.

      If the US is legally fighting a war in a foreign country (As in Afghanistan, pursuant to UN resolutions), and you are forceably resisting the US forces there, the de-facto position is that reasonable (including deadly force, if reasonable) can be used by our military against you in the heat of battle. If you are captured, you may be interned for the duration, but you cannot be tried by the US military courts as a criminal for armed resistance per se.

      The suggestion in your final paragraph is, with the greatest of respect, nonsense. Holder is doing nothing of the sort. There are no such things as “non-legal” combatants, so your proposition does not arise. Moreover, legal combatants cannot be lawfully tried as criminals (As distinct from interned). These people are neither. They are (alleged) criminals – no different from the late unlamented right-wing nutter Timothy McVeigh – and what Holder is doing is not only appropriate but is an inescapable consequence of the doctrine of the ‘Rule of Law’ which underpins our Constitution and idea of justice.

      The people who are against having these guys tried as criminals – in their sad need to ascribe everything this Administration does as motivated by some sort of misanthropy (“Why does Obama hate the US?” etc. etc.) – seem not to have thought things out properly before rushing into print.

  18. What if you’re a non-citizen charged with conspiracy to murder US citizens with the murders taking place on US soil?

    I think that legal combatants are held as prisoners, but people deemed to be worthy of execution get a trial. That may seem like better treatment to you, but that execution thing is a bit of a fly in the ointment, ain’t it?

  19. What makes a combatant “unlawful” is his failure to evince the characteristics of lawful combatants.

    That international agreement does not address in detail the treatment of unlawful combatants does not mean there is no such category.

    Throughout the period when the Geneva conventions were being drawn up, nations acted on the assumption that their domestic treatment of persons not recognized as LAWFUL combatants would be up to each of them. It was not the expectation of the signatories that their handling of those who do not meet the definition of a lawful combatant would be routinely subject to investigation by outside authority.

    Measures like the Nuremberg trials and the trials of Serbs in the Hague are not seen by all observers as the exercise of an inherent or preexisting supranational authority. Only some see them in that light — and the US has never been among those “some.” Our posture has always been that the use of an international court for such procedures is, in each case, a unique event requiring its own unique political decision among nations. We have always reserved the right to non-concur with the use of international court proceedings against any nation, including our own. We do not agree that there exists a supranational authority with the inherent right to compel us against our will or prior agreement.

    Hate that as you will, it has been the unvarying American posture. Obama may change that, or at least try to; I think he would meet serious opposition in the Senate, from Democrats as well as Republicans.

    But there is no prior agreement among the nations, nothing that we have bound ourselves to or recognize as binding on us, that details the treatment of unlawful combatants. It is up to our law, and our law is what has been invoked to deal with the problem. France is not baying for our blood on this, nor is Russia or China, Japan or Brazil, India or Nigeria or South Africa or Argentina or Germany. The reason they are not is that this is an issue of sovereignty that they don’t want to be on the short end of themselves. Their political leadership has zero interest in seeing the US give up our sovereignty in this regard; they rely on us, rather, to affirm it, and to benefit from that affirmation on their own part.

  20. As I understand it, there is no such creature known in international law as an “unlawful combatant”. It is a term of convenience cobbled up to justify certain actions taken by this country. It has no recognition as having any legal status anywhere.

    The US doesn’t recognise the jurisdiction of the International Court in respect of the alleged acts of our own politicians or military. Neither, for what it is worth, do most of the worst human-rights abusing regimes in the world. It is an option of convenience for all who take that position. Submission to the jurisdiction of the court is not compulsory

    However, those who perpetrate war-crimes, or crimes against humanity, are not on a free ticket just because they come from a state whose regime refuses to recognize the International Court. Most of our fellow liberal democracies not only submit to the jurisdiction of the court, but regard war-crimes and crimes against humanity as crimes that confer an international jurisdiction whereer they are perpetrated. Moreover, these same countries usually have prosecutors who are independent from political influence. The consequences of this is that people who commit these types of offence cannot travel to much of the civilized world without fear of arrest under international warrant, and the risk of delivery to the Hague.

    • Then you need to do some more reading. If you are a combatent who is not “combatting” in a manner that meats the definition of legal you are then what? The typical answer is dead. They don’t get delivered to the Hague. They often don’t make it too long. Spies are a great candidate during armed hostilities – they get executed quickly, as do individuals who wear the uni of the other guys to infiltrate their side. You can dance around the name all you want. That is the way the world works.

    • In reality the reason we are tying ourselves in knots here is because we are not fighting a country, we are fighting a movement. All the conventions of war assumed you had a national home and were fighting for a nation. Wherever these terrorists come from, we technically are not in a shooting war with any of them, so we struggle with how to treat them. I still think piracy is the best method. Just shoot them.

  21. While this debate rages on here at the Optimistic Conservative and beyond, we should keep in mind that there’s no way that these guys are set free. No matter what happens in the courtroom – mistrial, al-Qaeda plant on the jury, whatever – there’s simply no way KSM et al gets set free (Krauthammer made this point tonight on Fox). It’s a good point because it shows what a fraud this whole stunt is.

    • No, Ritchie, that’s not what it shows.
      If they are not tried, they don’t get sentenced.
      If they are not tried, it becomes increasingly difficult to say that they’re murderers.
      If they’re not tried, they’re merely prisoners.

      • fuster, And what happens if they are tried and found not guilty?

  22. 1) It snows in hell
    2) We need to get rid of this administration and shoot the people from the last one.

    • Is that as close as I’m going to get for a realistic answer?

      • That wasn’t entirely serious, but it was pretty much of a realistic answer.
        If these men aren’t convicted at trial, then two administrations are going to look like utter failures and lying criminals.

        If you want to know about what happens to the KSm and co, they go back to their cages as they’ll face other charges.

  23. I’m not sure how the Bush admin will look like “utter failures and lying criminals.” They’re not the ones who decided to give these guys a civilian trial. And as a side note, it’s going to be Obama & Co who would suffer politically. I don’t think the “we inherited” mantra would fly for this one. Regardless, I’m not concerned with what happens to the Obama/Bush admins here.

    So if these guys go back to their cages and face more charges, what’s the point of going through this civilian trial in the first place? So we can show what a compassionate country we are? We’re not supposed to have trials where the verdict is known before the trial starts – which is essentially what’s going to happen if we simply charge them (again and again?) with another crime following a “not guilty.” I see this as some sort of political stunt that is needlessly risky.

  24. Ritchie, the point is that we’re supposed to have trials where we don’t indict people for 3000 counts of conspiracy to murder unless we have a whole big bunch of evidence that we know to be admissable at trial and damning.
    We’re obligated to have a fair trial prior to executing or eternally caging these men, are we not?

    This current administration will look like utter failures if the trial fails.
    The Bush admin will look like criminals for having held and abused KSM without being able to show that he deserved it.

  25. If they are not tried, we still get to say that they are murders, for the simple reason that they have admitted–even boasted about–their deeds.

    The net result of trying them in a civilian court is to give them more protections and safeguards than even lawful combatants–prisoners of war who wore a uniform, operated against military targets rather than civilians, and belonged to a recognized chain of command. Giving them these safeguards undermines the laws of war, such as the Geneva Conventions, because it rewards rather than disadvantages non-lawful combatants.

    Besides, it’s almost designed to provide an open forum of anti-US propaganda. But then, that might be part of the intention–show what horrible bad guys the Bush administration and Bush military were, in contrast with the sweet humanitarians now running the show.

  26. Let me get this right, Margo. It seems that your argument for not trying these men is that their guilt or innocence not having been put to the test, “we” can continue to call them criminals – on the sole basis that the contrary hasn’t been proved. May I nominate you for Minister for Justice in the third world dictatorship of your choice. With the greatest respect you would seem to have all the necessary qualifications.

    These people are alleged to have committed a serious crime. Like any other alleged criminals they need to be tried, and if the evidence stacks up, punished. Are you seriously suggesting that this country should, instead of trying alleged criminals, just lock ‘em up indefinitely on the basis that by giving them a trial there is the possibility they might be acquitted and we wouldn’t be able to call them criminals anymore?

    The mind boggles.

  27. No, peterwise, their guilt is established by their own confession. We don’t need to find it out.

    My reason for not giving them a civil trial rather than a military one is that as non-lawful combatants they should not receive more safeguards and protections that lawful combatants do under the Geneva Conventions.

    Your position seems to be that combatants who do not abide by the laws of warfare should receive better treatment at our hands than those that do.

    Better look up “boggles,” it’s not what you think it is.

    • “Their guilt is established by their own confession”. Not in the USA or the other free nations of the world it isn’t.

      What you seem to be saying is that when an alleged criminal allegedly admits to the law-enforcement agencies that he is guilty there is no need to bring him before a court and the police should be able to punish that person summarily. Is that really your argument?

      In the US we bring alleged criminals – whether or not they have allegedly made inculpatory statements – before an independent court of law where they are arraigned. If they maintain their plea of guilty (which I presume these people will do) the court pronounces their conviction. It is this conviction by a court which establishes guilt and renders the criminal liable to punishment – not the alleged confession.

      On the other point that keeps getting repeated here – that by trying these people in the criminal courts we are somehow giving them some priviledge – I must also disagree.

      I would have thought that most captured terrorists see themselves as something better than mere common criminals. Remember, the interned and imprisoned IRA terrorists went on hunger-strike to the death not to have themselves categorized as ordinary criminals.

      By trying these people before the ordinary criminal courts we are emphasising the fact that they are nothing more than the common criminals they are. We are also telling them in the most public way possible that they are not combatants or soldiers but cowards and felons. We are also telling them that we are better than them because we can prevail while staying true to our core values.

      Incidentally – ‘the’, ‘mind’, and ‘boggles’ are all words with particular meanings. “The mind boggles” is a commonly used phrase whose meaning is well understood. So, what’s your point?

      Finally, I am not at all preturbed about taking a lonely viewpoint in the present company. I wear it as a badge of honour.

  28. peterwise, there seems to be a bit of a disconnect between you and most of the other commenters here. You’re referring to these guys as “criminals.” Most of the rest of us don’t think of them as criminals – as if they stole a car or murdered someone for their wallet. I, and I think I can speak for Margo and others here, look at KSM & Co as wartime combatants – not mere criminals. But they’re even worse than that because they don’t adhere to any Geneva type conventions or other “respectable” war time norms. They kill defenseless civilians.

    I think these guys are getting some pretty good treatment considering the depravity of their actions. If this was WWII, we wouldn’t be giving a trial to the Nazis until the war was over. We wouldn’t be putting German soldiers back into rotation before the war was over. Why should these a-holes get better treatment?

    • I think that there’s a bit of confusion between calling these people wartime combatants and saying that they’re not criminals, Ritchie.
      What you should understand is that it’s not necessarily one or the other.
      POWs can have among them a bunch of people who have committed crimes.
      They can be tried as criminals.
      They will be so tried and hopefully will cease being POWs and will become dead criminals.

    • Thank you for making my argument for me. Combatants and soldiers who are captured in war are never tried or punished as criminals. Under the rules of war they are interned for the duration and released on the cessation of hostilities.

      Mere criminals do exactly the sort of thing you accuse these people of.

      I am intrigued as to what you imagine to be ‘worse’ than criminals. Criminal behaviour doesn’t have a threshold. Was Timothy McVeigh, the Oklahoma bomber, who was tried and convicted before the ordinary criminal courts, better or worse than any other terrorist?

  29. Ritchie, thanks for cutting through the fog. It is central to the liberal enterprise and to the current administration’s modus operandi to regard terrorists as criminals (when they aren’t “freedom fighters”) becuase doing so makes any military or foreign intelligence initiatives against them unnecessary. After all, it’s really a calm, peaceful world out there with only a few misunderstandings, mostly caused by our own heavy-handed use of force. As soon as we forswear that, we’ll be fine, and able to turn our full attention to the real threats–insurance companies, drug companies, and doctors operating peacefully within the laws and their own professional ethics in our own society.

    • Margo, you’re gonna be saying the same silly stuff when KSM is sentenced to death?

      • I think the visibility still isn’t great out there…..

  30. I’m not sure why I would answer a question phrased that way, fuster. What is your point in insulting and at the same time inquiring?

    But yes, I would answer the same way, for several reasons. First, I really believe in the rule of law–that means that laws should be applied to the situations for which they were written. The Geneva Conventions should be obeyed by those that signed them, and that means not only treating lawful combatants as required, but also not treating unlawful combatants in the same way. The civil laws of this country should be applied to civilian actions, not to military ones.

    Second, this trial will have bad effects on our intelligence and will generate huge propaganda against us during a war.

    Third, as JED notes in the original post, this is being undertaken purely for political purposes, rather than from a finding of the insufficiency of military trials or simple detention.

    Fourth, I tend to argue based on principles, rather than on expediency, or what I think the outcome might be. Outcomes are very difficult to predict. Besides, when people base their action on principles, their actions are more predictable and understandable for others, so that long-term incentives for collaboration can emerge.

    Finally, I don’t think for a minute that executing KSM is going to happen for many, many, many years if at all. There will be plenty of people like you now applauding the trial who will be insisting that there be endless appeals and arguing that the death penalty is cruel and inhumane.

    So what are your reasons for thinking my arguments are silly?

  31. Margo, It really comes down to whether you want to see KSM on trial for 9/11.
    1) You can’t try him for this anywhere else.

    2)There’s not a reason to think that this will be bad for our intelligence efforts. How could it be?

    3)the opticon’s guess as to the reason for the trial shouldn’t be taken as gospel.
    It’s more likely that they’re going to be tried in civil court because the case against them is certain there’s no solid alternative

    4) The important principle are that we have a system of law. Catching and caging KSM without a trial or sentence or proof of guilt is not principled.

    5) You care to explain how it’s more humane not to begin the process?
    We didn’t catch this guy a couple of weeks or months earlier. We’ve held him and abused him for years.

  32. One result of the current administration’s treatment of unlawful combatants is to remove the disincentives to engage in hostilities in violation of the Geneva Conventions. A person who carries his arms openly, wears a distinctive uniform, and answers to a chain of command may be entitled to certain protections of a prisoner of war. Those who do not qualify are not entitled to those protections. The only thing they are entitled to receive while detained for the duration of hostilities is to not be treated inhumanely. Gitmo certainly meets that test.

    One question not answered thus far is what standards of evidence will be applied in a domestic criminal trial of unlawful combatants? In war, there often is no time to attend to the niceties of domestic criminal procedure and preservation of evidence for trial. Thus, even POWs are not legally entitled to the protections of the US criminal justice system.

    I have read that there cannot be a war unless it is waged by recognized nation-states. I am unconvinced. There is, however, some lack of consideration in the laws of war for the possiblity that entities other than nations may engage in warfare. An international convention for dealing with hostilities waged by non-nation-state entities would be helpful, but if this administration were to lead such a convention, the results would be disaster to the civilized world.

    • A domestic criminal trial isn’t given to people as unlawful combatants. Such a trial is given to people accused of felonies and the trial is in anticipation of carrying out penalties for felonies and those penalties are in addition to what they are subject to as captured combatants.
      Combatants convicted of capital crimes are likely to be treated less than humanely.

    • The standard of proof that will apply is the normal standard that applies in any criminal trial – proof “beyond reasonable doubt”. This is the same standard that applies in court martials and trials before the Interenational Court in the Hague.

      As for “unlawful combatants” – this being a non-existent category at law, and because the mere fact of being labelled an “unlawful combatant” is not a crime under any system of law, the questions of trial before any forum – or the applicable standard of proof, are irrelevant.

  33. Moreover, the decision to send these people for trial before the criminal courts of the US does nothing whatsoever to prejudice or preclude any other person, where prima facie evidence of war crimes exists, from being sent to the Hague for trial as a war criminal. Nor does it preclude, where the relevant criteria apply, from sending any person for trial by military court.

    There is no question whatsoever that the atrocity of 9/11 was a crime under the laws of the US. In such a case, if the US authorities believe the have sufficient evidence to have a reasonable prospect of obtaining a conviction, the decision to try the allleged participants is the only correct course.

  34. This is the kind of inconsistent and inhuman legalistic nonsense that is far removed from any common sense and has more to do with pagan theology than with common sense. American legalism is by the way rightly abhorred in Europe.


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