Are We at War -- or Not?

[PJABBER]

Just got back from another overseas work assignment and am glad to see the P&N activity is still hot and heavy.

Passing some time in the JFK Air France Salon I got into a discussion with fellow travelers about the pending transfer of KSL to New York for trial. Not a single American there thought it was a good idea, but some of the Europeans said it would be equivalent to the Nuremberg trials and thus a real good thing.

I got to thinking that Team Obama, while delivering on their campaign commitment to again treat global terrorism as a criminal activity instead of acts of war, actually display a significant ignorance of the conduct of war. I also got to wondering how one might apply American jurisprudence and evidentiary standards on a battlefield or in some distant and isolated mountain village in Northwest Pakistan, Tehran or Damascus. Will all combat troops and special operators be required to now carry Miranda cards?

From discussions with troop commanders I know that there is a significantly reduced incentive to capturing versus killing enemy combatants of the al-Qaida ilk. So, while there are now going to be significantly fewer combatants processed for criminal trial, those that are will be granted rights and privileges beyond their wildest imaginings.

After all, they were expecting to meet their 72 virgins in the after life, not in the conjugal visits they will have access to in places like Bedford Hills Prison. You wait a bit and you will soon be able to get to matchmake with your favorite terrorist poster boy on prisonpenpals.com!

**************

Are We at War -- or Not?
By Pat Buchanan
November 17, 2009

Are we at war -- or not?

For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?

Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies -- that he may not be guilty.

And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.

When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.

Yet that is what we do to al-Qaida, to which KSM belongs.

We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?

Minoru Genda, who planned the attack on Pearl Harbor, a naval base on U.S. soil, when America was at peace, and killed as many Americans as the Sept. 11 hijackers, was not brought here for trial. He was an enemy combatant under the Geneva Conventions and treated as such.

When Maj. Andre, the British spy and collaborator of Benedict Arnold, was captured, he got a military tribunal, after which he was hanged. When Gen. Andrew Jackson captured two British subjects in Spanish Florida aiding renegade Indians, Jackson had both tried and hanged on the spot.

Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.

When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?

When John Wilkes Booth shot Abraham Lincoln, alleged collaborators like Mary Surratt were tried before a military tribunal and hanged at Ft. McNair. When eight German saboteurs were caught in 1942 after being put ashore by U-boat, they were tried in secret before a military commission and executed, with the approval of the Supreme Court. What makes KSM special?

Is the Obama administration aware of what it is risking by not turning KSM over to a military tribunal in Guantanamo?

How does Justice handle a defense demand for a change of venue, far from lower Manhattan, where the jury pool was most deeply traumatized by Sept. 11? Would not KSM and his co-defendants, if a change of venue is denied, have a powerful argument for overturning any conviction on appeal?

Were not KSM's Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?

And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?

There have been reports that in the trials of those convicted in the first World Trade Center bombing, sources and methods were compromised, weakening our security for the second attack on Sept. 11.

If the trial is held in lower Manhattan, how much security will be needed to protect against a car bomber who wants the world to see a mighty blow struck against the Great Satan? And if, as some suggest, the trial should be held on Governor's Island, would that not make the United States look like a nation under siege?

What do we do if the case against KSM is thrown out because the government refuses to reveal sources or methods, or if he gets a hung jury, or is acquitted, or has his conviction overturned?

In America, trials often become games, where the prosecution, though it has truth on its side, loses because it inadvertently breaks one of the rules.

The Obamaites had best pray that does not happen, for they may be betting his presidency on the outcome of the game about to begin.

http://www.realclearpolitics.com/articles/2009/11/17/are_we_at_war_or_not.html

 

[Genx87]

I think he brings up valid points. Points that show what a mess it is to fight an organization not bound by borders and has no official state diplomacy.

Back in WWII and before when people like terrorists were caught on the field of battle. Summary executions were legal and often used. Today we have legislated our way out of such practices.

How do we go about fighting terrorists when we treat it like a criminal matter? How do we treat them like criminals when we are fighting them like they are in a state of war?

One thing is for sure. After this trial we will have a better understanding of our capabilities on the criminal front.

 

[whylaff]

Seriously? Minoru Genda is an example of why KSM shouldn't be put on trial in the US? Did everyone sleep through history class? Genda was rather active politically after WWII.

 

[dainthomas]

Not that it's really necessary to rebut a Pat Buchanan piece, but we definitely need some better standards of evidence than the hearsay allowed in military trials. Particularly given the well documented history of goat herders being incarcerated for years for the sole reason that their neighbor who hates them anyway ratted them out just to get rid of them.

 

[Jaskalas]

Are We at War -- or Not?

By our flippant conduct, we are obviously not at war.

 

[PJABBER]

Ronald A. Cass is Dean Emeritus of Boston University School of Law and Chairman of the Center for the Rule of Law. He sits as a United States member on the ICSID panel of conciliators for the World Bank. He is also considering if going back to the Clinton approach of treating international terrorists as ordinary criminals makes any sense, and more importantly, where the slippery slope takes us.

Cass writes:

When the Clinton administration prosecuted the blind cleric, Sheik Omar Abdel Rahman, and nine co-defendants in federal court in New York for their roles in the 1993 bombing of the World Trade Center, much less was known about al-Qaeda and the risks of using ordinary criminal process for terror suspects. Part of the legacy of that trial was the disclosure of information to the lawyers for the defendants that wound up promptly in the hands of al-Qaeda members who eventually would plan and execute the next attacks on the World Trade Center on September 11, 2001. The information, which revealed some of what our government knew about international terrorism and how we knew it, helped shield some of the terror enterprise's deadly planning from those trying earnestly to monitor and stop terrorism. No one will ever know how to apportion responsibility, but there should be no doubt that this was one of many contributing factors to the loss of nearly 3,000 innocent lives in the horrific attacks of 9/11.

Now President Obama's Attorney General, Eric Holder, has made the decision to bring Khalid Sheikh Mohammed (indicted but never prosecuted for the 1993 explosion) to trial in federal court in New York as the mastermind behind the 9/11 attacks. I have no doubt that Mr. Holder is an honorable man who took this decision seriously, worried about it, and weighed carefully the advice of his legal team and others in (and perhaps out of) the administration regarding the risks and benefits of this and alternative approaches, such as use of the military tribunals authorized by Congress and favored by the Bush administration for terror trials. The 240 pages of memoranda he reviewed just before reaching his decision were the synthesis of what both political appointees and career officials thought most relevant to the choice of process and venue. The public doesn't yet know what was in those memos - whether they contained any speculation on political risks from sticking with military tribunals, for instance - but undoubtedly a lot of legal and practical considerations were reviewed critically by the team and the Attorney General.

Most public attention now will focus on whether Mr. Holder made the right choice. But that isn't the only question people concerned with how our government works should be asking.

The other question is what if Mr. Holder has guessed wrong? What if challenges to the way evidence was obtained result in exclusion of enough material that KSM is acquitted? What if discovery rules for federal criminal trials again result in disclosure of sensitive information - ending up in the hands of our enemies - on how we gather information and who provides it? What if that facilitates another attack with more lives lost?

Would there then be exposure for Holder and those who advised him? Should the public have access to the memos now so that we can judge for ourselves if the advice was sound? Should we be thinking about possible legal sanctions, maybe even prosecution, if we decide the advice was wrong, that it didn't rightly account for the risks to our safety and our lives, that it didn't value our security highly enough, or didn't ultimately fulfill the legal obligations of those in high office?

Like all Americans, I sincerely hope Holder's optimism respecting the use of civilian courts for deciding what punishment to mete out to international terrorists is borne out. I also recognize that every critical decision like this one ultimately is a judgment about the probability of certain results and the values of specific good or bad outcomes. There can be no certainty in these matters.

If history is a guide, however, there will be plenty of bad fallout from this choice. The ill fit between the criminal process and the fight against international terrorism will reverberate in a series of decisions down the road respecting the conflict between effective antiterrorist measures and steps necessary to preserve litigation options. We don't want soldiers thinking about reading enemy combatants their rights, giving them Miranda warnings, making sure they have access to lawyers. We don't want our intelligence community worrying that Brady rules for disclosing evidence will compromise their effectiveness by revealing critical information on their methods and sources.

Admittedly, there are laws to protect confidential information that, in theory, can help shape procedures at trial to prevent nightmare scenarios. But those laws were in place during Rahman's trial as well. While one of his lawyers and other members of his legal team were convicted and sentenced to prison for revealing confidential information in that trial, that provides little comfort to Americans who lost loved ones, thanks in part to the disclosures. Laws are critical to our civilization, but the threat of legal punishment isn't enough to prevent harm from people who don't value our laws or our lives.

In marked contrast, the threat of legal punishment has a powerful chilling effect on people who live under the rule of law, whose lives and livelihoods are tied to the law. Much as I disagree with Mr. Holder, he and those who advised him shouldn't have to worry about the prospect of prosecution if the next administration decides they made the wrong call. They shouldn't have to worry about having the information they were looking at disclosed in ways that might discourage open, honest communication among public officials. They shouldn't have to worry about conforming to whatever comes to be accepted as good policy two or four or ten years down the road.

That is a lesson the same officials should keep in mind as they weigh what steps to take against former Bush administration officials. Mr. Holder and President Obama have wavered on the question whether prior officials should be prosecuted for their determinations - whether memos and communications between Department of Justice attorneys and other administration officials should be publicly released. Those officials should get the same respect for a serious, thoughtful effort to frame the information the right way and to reach the right decision as those advising Holder should receive now.

 

[her209]

Did Congress "declare war" on Afghanistan/Iraq per the US Constitution?

 

[WHAMPOM]

To be at War we need a Declaration passed in Congress as stated in the Constitution, as it is we are only conducting a Police Action.

 

[PJABBER]

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute. He was one of the federal attorneys who helped shape the direction of America's pursiut and treatment of terrorists and non-state combatants.

Some time back I had a chance to read some of the opinions written by Mr. Yoo and his colleagues. I found them well considered and careful to find a rational legal approach to dealing with the threats posed by international terrorism. I wonder if Mr. Holder and President Obama, both attorneys, even bothered to consider the cases made and the cautionary legal issues identified by their predecessors.

In Monday's Wall Street Journal, Mr. Yoo expressed a deep concern that the KSM trial will be an intelligence bonanza for al Qaeda -

http://online.wsj.com/article/SB10001424052748704431804574537370665832850.html

'This is a prosecutorial decision as well as a national security decision," President Barack Obama said last week about the attorney general's announcement that Khalid Sheikh Mohammed and other al Qaeda operatives will be put on trial in New York City federal court.

No, it is not. It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

KSM is the self-proclaimed mastermind of the 9/11 attacks on the World Trade Center and the Pentagon—and a "terrorist entrepreneur," according to the 9/11 Commission report. He was the brains behind a succession of operations against the U.S., including the 1996 "Bojinka plot" to crash jetliners into American cities. Together with Osama bin Laden, he selected the 9/11 terrorists, arranged their financing and training, and ran the whole operation from abroad.

After the U.S. invasion of Afghanistan KSM eventually became bin Laden's operations chief. American and Pakistani intelligence forces captured him on March 1, 2003, in Rawalpindi, Pakistan.

Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War. The lawyers in the Bush administration—I was one—understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.

The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.

Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

KSM's lawyers will not save the government from itself. Instead they will press hard to reveal intelligence secrets in open court. Our intelligence agents and soldiers will be the ones to suffer.

 

[PJABBER]

To be at War we need a Declaration passed in Congress as stated in the Constitution, as it is we are only conducting a Police Action.

Just like Korea, Vietnam, Lebanon, the Balkans and Iraq, right?

Is it possible to declare war on non-state actors? How about factions in a civil war? How about actors like the Uighurs that target non-Western states but are part of the overall network of anti-West terrorists?

 

[boomerang]

KSM has confessed. No trial is needed with a confession, only sentencing. But a trial we will have nonetheless.

The motives behind this are transparent. The trial is expected to start in early 2012. An election year. The administration will carefully orchestrate this unneeded trial to bring to light the purported criminal activities of the previous administration. The trial will cost tens of millions of dollars, perhaps a hundred million or more. It's nothing less than partisan politics of the most egregious kind.

It's cute to watch our chairman drop the biggest bombs after he shags ass out of town. Personally, I don't find it surprising when children act like children I just wish they weren't trying to run the country.

 

[her209]

Just like Korea, Vietnam, Lebanon, the Balkans and Iraq, right?

Is it possible to declare war on non-state actors? How about factions in a civil war? How about actors like the Uighurs that target non-Western states but are part of the overall network of anti-West terrorists?

What about actors in the "War on Drugs"?

 

[Thump553]

It always amazes me that the party that wraps itself in the flag and claims to be the only true patriots have absolutely no faith in the US legal system. Of course, its the same crowd that invented things like death panels when "debating" health care reform, so I really shouldn't be surprised.

PJ, I supposed I shouldn't be surprised at your evaluation of Yoo's writings-it's results driven, and you are in agreement with the results sought. He's a hack and an embarassment to my profession in my view.

 

[IronWing]

From Buchanan:

For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?

Fail right there. The right to a fair trial, presumption of innocence, and all the other protections for defendants under our Constitution are afforded to all persons on US territory, not just citizens. Buchanan once again displays either ignorance or dishonesty. The rest of his drivel is drivel designed to obscure the fact that indefinite detention is an abomination to our system of law.

 

[PJABBER]

It always amazes me that the party that wraps itself in the flag and claims to be the only true patriots have absolutely no faith in the US legal system. Of course, its the same crowd that invented things like death panels when "debating" health care reform, so I really shouldn't be surprised.

PJ, I supposed I shouldn't be surprised at your evaluation of Yoo's writings-it's results driven, and you are in agreement with the results sought. He's a hack and an embarassment to my profession in my view.

You are right. While I will entertain an abstract discussion, I am mostly interested in finding a practical approach to problems.

What is the best way to minimize the "problem" of terrorism? You aren't going to dissuade the actors by how kindly you treat them. You aren't going to impress them by the quality of your legal system, they reject it as fundamentally unsound. You offer no inducements that can substitute for a good death. Every moment of life is an opportunity to continue the battle, that is the hallmark of fanaticism.

Yoo et al were tasked to find a way to confront the dangers posed by fanatical terrorists while not deviating from a strict interpretation of the U.S. Constitution and the right and protections offered to US citizens. They relied on domestic, international and military case law precedents, but of necessity they had to consider that they were considering approaches that needed to respond to an existential threat.

What rights do non-uniformed, non-state terrorists really have? Very few in my opinion. Certainly none of the rights that citizens of the US enjoy, having won such rights through hundreds of years of domestic testing. In a declared war, they are shot on the spot by all parties. Do they have more rights in an undeclared war?

That we now have a radicalized Democrat political group in power that wishes to extend the legal protections US citizens enjoy to all non-citizens and to hostile actors whose satisfaction can only come with the violent death of American citizens is truly extraordinary, and extraordinarily dangerous.

When intellectual and emotional navel gazing and posturing gets in the way of protecting Americans, it is time to consider that the government has fatally failed in its duties and responsibilities.

 

[Lemon law]

As usual Pat Buchanan manages to ask a series of good questions and thereafter manages to come to the wrong conclusions.

But in terms of the are we at war question, its somewhat unanswerable, it was GWB who declared a war against terrorism, and terrorism is a artificial mental state and not a concrete entity that one can kill, so it follows that we are in an artificially state of war. Also mitigated by individual belief, I have never believed in the existence of the tooth fairy and never believed in the honesty of GWB either, so I may be more inclined to say we are not in a State of War.

In terms of a trial for KSM, I ask why not? What does it hurt? He is guilty right?
Except I would not advocate a domestic venue, and instead a neutral site like the Hague to dispel any kangaroo court type allegations.

In terms of the other question asked, why are we shooting the Taliban on sight with no concern about collateral damage, its something I have advocated against for years. And now McChystal is finally realizing its also a big part of why we are losing in Afghanistan.

 

[boomerang]

From Buchanan:


Fail right there. The right to a fair trial, presumption of innocence, and all the other protections for defendants under our Constitution are afforded to all persons on US territory, not just citizens. Buchanan once again displays either ignorance or dishonesty. The rest of his drivel is drivel designed to obscure the fact that indefinite detention is an abomination to our system of law.

So what's your take on trials before military commissions? Illegal? A choice was made here. Mr. Buchanan's opinions are really immaterial to this matter. They are after all, only an opinion.

Do these rights you speak of apply to those arrested in another country? Do they apply to those arrested on the battlefield? If our troops in Afghanistan were to take prisoner 200 members of Al Queda today, are those prisoners entitled to the same rights as U.S. citizens? Should they be mirandized and allowed counsel at the expense of the taxpayers of this country?

Is an individual, arrested in another country, but now on U.S. soil, who has confessed to a criminal act, entitled to a trial even though he has confessed to the act?

 

[PJABBER]

From Buchanan:

Fail right there. The right to a fair trial, presumption of innocence, and all the other protections for defendants under our Constitution are afforded to all persons on US territory, not just citizens. Buchanan once again displays either ignorance or dishonesty. The rest of his drivel is drivel designed to obscure the fact that indefinite detention is an abomination to our system of law.

KSM lived in Kuwait and was captured in Pakistan by the Pakistani ISI and maybe some US special operators. As best as we know he never stepped onto US soil until he was interred at Guantanamo.

He has confessed to masterminding the September 11, 2001 attacks, the Richard Reid shoe bombing attempt to blow up an airliner over the Atlantic Ocean, the Bali nightclub bombing in Indonesia, the 1993 World Trade Center bombing and various foiled attacks. He is an unrepentant terrorist (management level.)

You be the judge - like to set a bail amount for him? How about giving him full discovery rights so he and his attorneys can pursue a vigorous defense, even if just to effect a "fair" punishment? Is he going to get a "fair" trial if the Pakistani ISI refuses to allow their agents to appear in a US court? I would think that we have seen enough bleeding heart liberal lawyers leak classified information, including the identities of officers that, along with their families, immediately get on assassination target lists, to have grave doubts as to whether there is any rational merit to allowing terrorists access to this information.

Though he might seek to be martyred, you can bet the ACLU and the anti-death penalty folks will be advocating on KLM's precious behalf. I am sure you will want to offer him and his associates a most comfortable and accommodating environment to let him pursue his goals, under the presumption that he is innocent until found guilty.

Won't you?

 

[fskimospy]

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute. He was one of the federal attorneys who helped shape the direction of America's pursiut and treatment of terrorists and non-state combatants.

Some time back I had a chance to read some of the opinions written by Mr. Yoo and his colleagues. I found them well considered and careful to find a rational legal approach to dealing with the threats posed by international terrorism. I wonder if Mr. Holder and President Obama, both attorneys, even bothered to consider the cases made and the cautionary legal issues identified by their predecessors.

Some other people have had their chance to evaluate Mr. Yoo's work as well. For example the general counsel of the Navy checked out our good friend John's work and described it as "catastrophically poor legal reasoning".

http://www.newyorker.com/archive/2006/02/27/060227fa_fact?currentPage=6

John Yoo's legal reasoning was so bad that quite a few of his ideas on what a 'rational legal approach to dealing with the threats posed by international terrorism' were withdrawn by Bush's own head of the OLC later on because they could not be supported. That's right folks, an administration went back and declared its own legal memo invalid. That's how bad John Yoo's legal work was.

Furthermore, it's quite clear that AG Holder has reviewed the legal reasoning put forth by Yoo, as an internal Justice Department investigation report was finished during his tenure. While the report has not been made public, internal JD sources say it is highly critical of Yoo's reasoning, specifically (and ironically due to PJABBER's post) it criticizes Yoo's complete failure to take into account obvious legal precedent in formulating his legal opinions.

http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?_r=1

His opinions are so 'well reasoned' that he faces the possibility of disbarment for them, and now we have our good friend PJABBER quoting him as an authoritative voice on almost the exact same topic where he got into so much trouble.

 

[fskimospy]

You are right. While I will entertain an abstract discussion, I am mostly interested in finding a practical approach to problems.

What is the best way to minimize the "problem" of terrorism? You aren't going to dissuade the actors by how kindly you treat them. You aren't going to impress them by the quality of your legal system, they reject it as fundamentally unsound. You offer no inducements that can substitute for a good death. Every moment of life is an opportunity to continue the battle, that is the hallmark of fanaticism.

Yoo et al were tasked to find a way to confront the dangers posed by fanatical terrorists while not deviating from a strict interpretation of the U.S. Constitution and the right and protections offered to US citizens. They relied on domestic, international and military case law precedents, but of necessity they had to consider that they were considering approaches that needed to respond to an existential threat.

What rights do non-uniformed, non-state terrorists really have? Very few in my opinion. Certainly none of the rights that citizens of the US enjoy, having won such rights through hundreds of years of domestic testing. In a declared war, they are shot on the spot by all parties. Do they have more rights in an undeclared war?

That we now have a radicalized Democrat political group in power that wishes to extend the legal protections US citizens enjoy to all non-citizens and to hostile actors whose satisfaction can only come with the violent death of American citizens is truly extraordinary, and extraordinarily dangerous.

When intellectual and emotional navel gazing and posturing gets in the way of protecting Americans, it is time to consider that the government has fatally failed in its duties and responsibilities.

The supreme court disagrees with you, sorry to rain on your parade. Those captured by our forces most certainly do have rights according to the highest body of legal authority on the US Constitution that exists.

You have also created an absurd caricature as to who and what a terrorist is while providing zero evidence to support it. In the case of suicide bombers specifically, interviews and data collected from failed suicide bombers have painted a very complex picture of why they do it, and many of the reasons have nothing to do with 'continuing the battle with every last breath', or whatever. Many people do it because they have no other way to support their family, others do it due to the deaths of other loved ones at the US' (or whoever else's) hands.

Regardless, the idea that 19 people can crash airliners into buildings and thus allow our government to permanently imprison whoever we choose to for their entire lives without having to prove that this detention is justified goes against everything that America stands for. Speaking of practicality, since when is it practical to subvert an entire nation's justice system to save a few lives?

Whenever I read these threads the first thing I think of is the phrase 'we have met the enemy and he is us'. We truly have far more to fear from the ultra authoritarians like John Yoo and PJABBER than any suicide bomber.

 

[Malfeas]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

 

[fskimospy]

Another interesting take on it from the founder of the Federalist Society, the conservative legal group that nearly every prominent conservative lawyer/judge is a part of and one of the most influential legal bodies in America today:

http://www.politico.com/arena/perm/Steven_G__Calabresi_AF5616BC-989D-4F22-AC5D-5BB49FD22F1F.html

In short, he believes that these detainees MUST be punished by the law and the courts instead of detained forever by the executive because to do otherwise would be a violation of the Separation of Powers doctrine, in short an extreme power grab by the executive branch.

 

[her209]

We hold these truths to be self-evident, that all (non-slave) men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Fixed for the context.

 

[PJABBER]

Furthermore, it's quite clear that AG Holder has reviewed the legal reasoning put forth by Yoo, as an internal Justice Department investigation report was finished during his tenure. While the report has not been made public, internal JD sources say it is highly critical of Yoo's reasoning, specifically (and ironically due to PJABBER's post) it criticizes Yoo's complete failure to take into account obvious legal precedent in formulating his legal opinions.

http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?_r=1

But eski, unlike guys like Bush, Cheney and Yoo, Obama, Holder et al do not start their considerations with the principle that the role of government is firstly the protection of American citizens from threats domestic and foreign. The legal firm of Obama, Holder firmly believes that we are all citizens of the world and the rights that Americans have won are now to be extended to all people, everywhere, while conveniently ignoring the fact that no terrorist plans on extending such rights to Americans anywhere.

My argument, and that of the previous Administration, is that the US Government is charged by the Constitution to protect us. And there is neither a Constitutional mandate nor an international law reference for protecting terrorists and non-state enemies.

Maybe our common humanity, when faced with genocidal types, can be inferred to keep them in indefinite hard detention rather than killing them on the spot, but I would not be so generous nor so willing to take a risk that a bleeding heart or fancy ACLU lawyer won't get them out on a crafty legal argument.

I wonder how you would feel should the family, school, city they first target be yours? I bet you would feel proud, damn proud, that you insured they had the freedom to do so. And after the funerals are done, you would be the first to say they need a fair trial, again.

 

[PJABBER]

I needed a little bit of a distraction from the economic data I have been immersed in and ran across the following just released study which you might also find enlightening. It offers a much broader and historical perspective on this issue than I can in the course of a few sentences...

Manhunting: Counter-Network Organization for Irregular Warfare

George A. Crawford
JSOU Report 09-7
Joint Special Operations University
and the Strategic Studies Department
September 2009

http://jsoupublic.socom.mil/publications/jsou/JSOU09-7crawfordManhunting_final.pdf