UPDATE: As I predicted, defense counsel already are saying that they'll put their clients on the stand to make speeches about how American foreign policy and American oppression of the Muslim masses overseas caused them to commit these atrocities against civilians. Their propaganda will be broadcast globally at the expense of U.S. taxpayers, thanks to the Obama Administration.
The left is furiously spinning the Obama Administration's decision to try the foreign masterminds of the September 11, 2001 terrorist attacks on New York and Washington as confined to a single issue—whether trying the terrorists in Manhattan (the Southern District of New York in the federal court system) will cause an increased security threat to New York City.
I agree that the security threat won't increase as a direct consequence of this decision, but that begs the essential question. Because of the special rights and privileges afforded criminal defendants and their attorneys, using the U.S. civilian criminal justice system in mass terrorism cases where the terrorists are not merely fanatical American citizens committing their crimes on U.S. soil, but foreign nationals employed by criminal paramilitary organizations based abroad and supported by foreign governments overseas, is a huge problem.
In addition to costing taxpayers hundreds of millions of dollars, what a public “show trial” will do is give the terrorists a global soapbox, through their attorneys, upon which to expound their grievances amidst the ashes of their victims. Does anyone believe that these defendants can get a fair trial in New York City? Will all of the jurors be deaf, dumb, and blind, or perhaps born after 9/11? Did the military and intelligence officials who captured these alleged murderers read them their Miranda rights before proceeding to question and detain them? There is a real potential for catastrophic failure of the criminal justice system here, either at the hands of an understandably biased jury, or a criminal constitutional jurisprudence that demands that "the criminal must go free because the constable has blundered".
No one has yet applied those principles to foreign terrorists captured by our military and intelligence officials overseas-- until now. Yet the Obama Justice Department is begging to be kicked in the teeth by this. Why? And what about the judges forced to follow long-settled constitutional precedent at the level of the U.S. Supreme Court, (never intended or designed for this situation) which demands that they cut these alleged murderers loose? Either abandon your constitutional principles, and permit the trial to proceed, or free the terrorists, and be forever the target of the attacks of Americans who cannot understand why their judiciary failed them in the face of the obvious guilt of the defendants. This is a demonic choice indeed for our federal judges: damned if they do, and damned if they don't.
The trials will inflame the families and friends of the victims, as well as American public opinion, forcing us to rehash 9/11 once again. It will force the public exposure of the tactics employed by our military and intelligence officers in the war on terrorism, including torture and other extreme tactics employed by those seeking to protect us. It will be an opportunity for the defense to put the Bush Administration on trial. To the joy and comfort of the enemies of this nation, it could lead to indictments of Bush Administration officials. Worse, it will divide and demoralize the nation by applying U.S. criminal justice system principles to the U.S. military and intelligence establishments with respect to operations abroad, where such standards do not apply. It will set dangerous judicial precedents, crippling the executive branch in its efforts to protect Americans. The damage to the executive branch from this folly will extend far past the presidency of Barack Obama to future presidents. And President Obama? Either he doesn’t care about such concerns, or he likes the likely outcome: weakening the ability of the Executive Branch to defend Americans at home and abroad.
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written by osher g. , November 19, 2009
I'm really not sure what all the fuss is about. Either we believe in our system, and we believe that freedom works, and that an open transparent government is the best way form of government, and that people should be tried in an open court and be given a chance to defend themselves before a jury of their peers, or we believe that that government should keep everything secret, and that we should be convicting people behind closed doors on an island somewhere in the Caribbean.
I think this could be a great opportunity to prove to ourselves that freedom does work, and that free people don't need an over-powerful secretive government doing their dirty work.
If laws were broken, people should be prosecuted. The government only has as much authority as we give them to protect us; they are not above the law.
If we don’t trust the system to do something as basic as convicting someone like KSM, (as well as keeping a check on the executive branch,) then we have a much bigger problem. If we don’t believe in our own justice system, then we have something much bigger to discuss than this particular case.
written by swmirsky , November 19, 2009
Because osher.g, this is much more complicated than the simple question of civiil liberties. George Friedman of Stratfor.com offers a very compelling explanation:
"It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers."
Here's a link to the full piece which is too long to reproduce here:
http://www.stratfor.com/weekly/20091116_postsept_11_legal_dilemma?utm_source=GWeekly&utm_medium=email&utm_campaign=091116&utm_content=readmore
SWM
written by Daniel Peterson , November 19, 2009
Wait, you wrote such a long piece and use the phrase, "Dagger in the heart..." and nowhere, nowhere is Chuck Schumer mentioned.
written by Quickjustice , November 20, 2009
Osher:
Your rhetoric notwithstanding, if you don't understand the practical and theoretical difference between a domestic criminal committing a crime locally, and a global criminal paramilitary force based, recruited, and supported outside the U.S., and waging attacks on civilian populations domestically, I can't help you.
Is global terrorism a criminal problem or a military problem? To define it as a criminal problem is to belittle it, to make a claim that it really isn't different in degree or kind from that domestic criminal. The only way this is plausible is if the terrorists are so few in number, and so poorly organized, that the threat they pose can be managed with conventional law enforcement techniques, subject to the constraints of the criminal justice system.
And as Stu correctly notes, criminals are arrested and punished because of behavior that violates the norms of the wider society of which they are a part. As foreign nationals operating outside the U.S., terrorists make no claim to share any such norms, and offer their own norms about the murder of infidels which deviate radically from those of the targeted population. Treating them as domestic criminals elevates their position in civil society by conferring rights upon them which it is assumed they share, at least in the abstract. If they've never set foot in the U.S., it's tough to make such an argument.
written by swmirsky , November 20, 2009
I think it pays, QJ, to again make reference to Friedman's article. The issue is exceedingly complex and, though your post above does a yeoman's job of pointing up some of the issues, the continuing problem here is that there is no simple way to get this point across.
We all value individual liberty and the protections afforded by the U.S. Constitution. Because of this, the instinct of many of us is to err on the side of protecting individual rights against government. But, when the individual whose rights we are intent on protecting, is, himself, intent on destroying ours by destroying the very fabric of the system in which our rights are grounded, a different dynamic obtains.
Of course we want to say 'but we are better than they are and will grant them what they won't grant us.' This is morally satisfying at some level but hardly likely to be efficacious since, as the jihadists like to say, they "love death more than we love life". There is just a fundamental divergence in world views here which are made clear in events like those of September 11th which, as Friedman points out, can only be classified as acts of war, not crimes.
Acts of war are more portentous than crimes because crimes occur within a society and threaten society because of their disruptive potential. Acts of war are perpetrated from outside the parameters of the society and its norms and, given the aims of the actors in committing them, and, further, when they are as massive as the events of 9/11 were (and as future events are likely to be as promised by the people who perpetrated 9/11), they cannot be deterred by after-the-fact prosecution.
Those who commit them, who "love death" as it were, are not to be deterred by the threat of prosecution and incarceration or even execution. And THAT is the real problem. You can't wait until such events have been committed to act because of their scope and the threat they pose. Waiting, as we generally do in criminal cases, is just not a serious option. You have to act pre-emptively, as in wartime.
Friedman makes the point very well in the latter part of his article:
". . . Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.
"Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can."
The full article is here:
http://www.stratfor.com/weekly/20091116_postsept_11_legal_dilemma?utm_source=GWeekly&utm_medium=email&utm_campaign=091116&utm_content=readmore
SWM
written by osher g. , November 20, 2009
Friedman's article is very good, and I defiantly see the case for having him tried by a military tribunal. What I don't get is what we lose by having him tried in a criminal court. I'm not so worried about "compromising sources and methods," as i believe that the government keeps way to many secrets from us as it is.
Imagine that KSM is convicted and executed in a civilian court, wouldn't that say something about our justice system that could make us all proud? It's just a little hard for me to accept that there are some things that are too big or too complicated for regular people to take care of, and we need secret courts and military tribunals to handle it.
And if the worry is that he'll be acquitted, than like I said we have something much bigger to worry about.
written by swmirsky , November 20, 2009
In the modern world the government has little choice but to keep secrets. (They even had spies and secrets in 19th century America!) While keeping secrets from you and me may not be the issue, they cannot expose information to us without exposing it to our sworn enemies and that would sap our ability to interdict and halt future attacks like 9/11.
Osher.g writes: "Imagine that KSM is convicted and executed in a civilian court, wouldn't that say something about our justice system that could make us all proud?"
Imagine if he isn't! Is this about feeling good, feeling proud, or is it about keeping this country and our people safe?
Imagine if the thing drags on for years and the courts are obliged to accommodate these guys as if they were ordinary criminals or if the American government ends up "on trial" and America's necessary covert operations are exposed to public (and al Qaeda) scrutiny as they were in the trial of the blind Sheikh for the first World Trade Center attack!
Imagine, too, if trying these guys in this way sets a precedent that ties our hands in dealing with terrorists in the future.
Osher.g also writes: "It's just a little hard for me to accept that there are some things that are too big or too complicated for regular people to take care of, and we need secret courts and military tribunals to handle it."
But the courts are not the domain of "regular people" but of legal professionals. It's just a different game there, one that is played based on maintaining public order within a common polity with lawyers and judges negotiating the arcana of the legal system.
But those who would attack this country are not within it, are not a part of it (even those who actually live here and may be citizens since their activities are treasonous -- though they would be treated differently, i.e., treason is a clear crime that is actionable as such).
By dint of the choice to attack this nation, the terrorists, whoever and wherever they are, place themselves against it. And that makes the matter one of war and pre-emption where possible, not one of reaction and legal redress.
Should we treat such terrorists as if they're invested in the system we're invested in when their clear aim is to destroy it?
If these guys are acquitted, I have no doubt that the government will find ways to keep them out of circulation anyway but doesn't that also open a can of worms? Under military tribunals there is justification for keeping them incarcerated for the duration of hostilities, or until they can be shown to have ceased to be a threat. But in the civilian courts, what is the justification for overriding a verdict once they are found not guilty?
Meanwhile the president and Holder have already tainted the process by telling the American people that conviction is a foregone conclusion. Whatever happened to innocent until proven guilty (which is the standard in the civilian judicial system)?
The decision to put them on trial in the civil system is a huge mistake.
SWM
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