War on Terror or just criminals that need to be accorded increased rights?

[chrstnhsbndfthr]

We are at a juncture, and it appears the decision has been made to go back to the pre-9/11 mentality, where we will bring those who have declared war on us here and accord them the full rights of our citizenship as regards the justice system. They will be tried and will have rules of evidence and burdens of proof, just as an accused citizen does here. 

Will this mean we are making police officers of our military?  Or does it simply mean more terrorists go free?  Do we return them to where we captured them from, or simply release them out the front door of the court house?  Will they have a right to make bail while on trial?  Will soldiers be censured for failing to read them their rights? 
What of terrorists who have already been dealt with under the military tribunals? Will those who have been freed under that system need to be tried again?  Will those who have been convicted also need to be tried again?

Which system is better for America?  Let's try to have a discussion. I will stay out of it for a couple of days, but hope folks will vote and post thoughtfully.

[Beel]

Kinda difficult to argue against our own justice system.  That was the mistake the Bush Administration made when they chose to go down the Gitmo/Abu Graib path.  We treated German Prisoners in WW II more decently, i.e., according to the dictates of our own values.  The "pre-9/11 post 9/11" frame that the Bush Administration created was a false distinction.  It was much more about our own politics, and a club to beat recalcitrant Democrats with, than it was with actually reacting to what was absolutely a shocking and evil attack on New York City and the United States.  From this dramatic and false frame flowed a sensible police action in Afganistan that has now morphed into a real Vietnam-style quagmire, plus an entirely wrong-headed war in Iraq which is also pretty much a quagmire. 

Bush stated, at some point in his term, that the Constitution was "just a piece of paper."
That's certainly one way to look at it. 

[NC YIPPIE]

I really think there is very little chance that suspects like this would ever go free, as I'm sure they have a very long list of various crimes that they could charge them with, one after the other.

I can definitely see why some victim's families are upset at the prospect of a NYC trial, but I can also see how others think it is quite appropriate to show no fear in facing our enemies. Our courts have already handled high profile terror cases in the past, and done so honorably and quickly. Compared to the previous tribunal approach, which did not result in a single trial or conviction, it seems that it may, in fact, be best for the long run. I guess this could in some ways also be considered part of a broader effort at real transparency in our justice system. However, it is complex and I agree that there are certainly many questions and reasonable concerns about taking this new direction.

[bobsyouruncle]

We weren't at war at the time Khalid Sheikh Mohammed is alleged to have planned an attack on American civilians, and Khalid Sheikh Mohammed was arrested in Pakistan, not on a battlefield. This wasn't a military attack. Trying him in a military tribunal could potentially lead to his release on those grounds.

The people who attacked the USS Cole attacked a military ship and killed soldiers. I can see how that's different and why a different legal venue is appropriate.

I heard a member of Congress who was formerly a federal prosecutor (I think) say that federal prosecutors have been more successful getting convictions of terror suspects than  military tribunals have been.

[seavey]

NPR said yesterday that New York's conviction rate for terrorism suspects is 100%.  There are efficiencies inherent in using existing systems rather than reinventing the wheel.   

[RJLeeb]

Bush stated, at some point in his term, that the Constitution was "just a piece of paper."
That's certainly one way to look at it. 

And here we can see that to people like Beel, the Constitution really is nothing but a piece of paper.

Why?

Let's first look at the context of Bush's comment.  He said it during a discussion of renewing the Patriot Act.  Of course, we have no recording of this, just the word of some people that claim to be there.

(Granted, we have disagreements over something Obama said and what he meant...even though there was a recording.  So suppositions about what he meant are considered off base, while things like this are considered "gospel" by the left.

Go figure.)

Anyway, I don't necessarily doubt he said it.  The Patriot Act was and is un-Constitutional.

What's interesting is that folks like Beel never get tired of bringing that up.  Which is a bit ironic, considering that Obama actually expanded Bush's wiretapping policy.

For those that have forgotten, see here:
http://rawstory.com/news/2008/Obama_Administration_quietly_expands_Bushs_legal_0407.html

So when liberals say "why wasn't the right so het up over Bush's policies", remember that they are doing the same thing now by being quiet about Obama.

That of course means that Obama thinks the constitution is nothing but a piece of paper as well...despite the machinations of the left about his background in the legal profession.

So since the constitution is something that only gets applied to violators you don't like...that makes it nothing but a piece of paper...to you.

Now to the topic at hand.  I've stated this before, but it has been a while so I'll say it again.

Essentially, we must choose between freedom and temporary safety.  It's the Ben Franklin quote all over again and it fits here despite the modern context.

We have two ways to go about it.

1. We can ramp up "security" but continuing to wiretap without warrants.  We can make special rules for "enemy combatants", which means anyone classified as such would go through a different process than any other citizen.

We could take other measure like tightening gun laws (not that that would stop a common thug much less a determined terrorist). 

In other words, we let fear drive us to give up essential freedoms for security.

2. We understand that the terrorists have won an additional victory when we change our way of life, and give up our freedom.  We accept the risk of attack, but go about our lives as we normally would.  We take some security measures, but are careful to do nothing that would violate privacy, lifestyle or freedom of movement within our own country.

Is there a third option?  I don't know, but I'd be glad to hear it.  Any compromise between the two above is no compromise at all...since it means some freedoms would be lost.

We've already made police officers of our military when we began nation building a long time ago.

The best system for America, in my opinion, is one that ensures that the constitutional rights of citizens are not violated.

Simplistic?  Probably so.  I'm not ignoring the fact that things are a lot more complicated than I'm saying.

But I just don't see how we have any other choice.  The Constitution is inviolable.  If the terrorists manage to change our minds on that subject, then we really have lost our way of life.

[Beel]

Junior says, at the end of his oxygen supply, The constitution is inviolable. If the terrorists manage to change our minds on that subject, then we really have lost our way of life.

And that is pretty much exactly what I said too. 

It has also been pointed out that Great Britain, India, Indonesia, and other countries who have suffered terrorist attacks were not afraid to try the accused terrorists in their own court systems.  Glenn Greenwald has a long piece up on the subject. 

[chathamshooter]

If these terrorists are true to their word, they'll refuse any defense on their part, plead guilty, and demand to be executed so they can die for Allah.

[chrstnhsbndfthr]

What WILL happen is that there will be a process known as discovery. This means that Al Qaeda will have access to our intelligence gathering process once again. It is like opening up all your knowledge to sworn enemy spies.

Even if we assume the best of intentions of our Executive Branch, (That they would not allow the risk of these terrorists being released.) one still has to ask why put us through the show and allow so much information to be released to our enemies, for a show trial?

[Claude Bowles]

If these terrorists are true to their word, they'll refuse any defense on their part, plead guilty, and demand to be executed so they can die for Allah.

Works for me!

[snowcamper]

Did we try German POW's in criminal court?  That argument is stupid and irrelevant.

Sure we housed them back here in this country, but they were also uniformed combatants.  Those who weren't never made it past the firing line.

We did the same thing with Germans caught in France... analogous to your "but we caught them in Afghanistan, not here on US soil..." argument. 

It doesn't matter where we catch them... if they were working against the interests of the United States in an armed fashion, they are not deserving of a criminal proceeding.


Let's back up even further...  Did we put the Hessians (http://en.wikipedia.org/wiki/Hessian_(soldiers) who fought for the British on trial... or did we treat them as enemies of the United States and treat them accordingly?  I'll give you a hint... they were subject to indefinite detention... and not in as nice of a place as Guantanamo.  And all of that was done by the people who wrote the constitution... who could never imagine that a national enemy would be treated like a common criminal.

You can read more about the Hessians at http://www.americanrevolution.org/hessians/hess15.html
But here are some relevant highlights:
The prisoners, or "conventionists," as they called themselves, now set out on their march across Massachusetts. The weather was cold, and the roads bad. The march lasted from the 17th of October to the 7th of November. In some places the inhabitants refused to take the prisoners into their houses, and in other places, where it was necessary to halt, there were not houses enough to hold them.

The German "conventionists" were put into barracks on Winter Hill, near Cambridge, Massachusetts, while the English occupied the neighboring Prospect Hill. These barracks had been erected by the Americans for their own use during the siege of Boston, and were of the lightest description. The wind whistled through the thin walls, the rain came through the roofs, the snow lay in drifts on the floor. Wood and straw were but scantily furnished (Wood was very scarce that winter.

In the middle of January, 1779, the Germans reached Charlottesville, in Virginia. Here they found no barracks ready for them, and were obliged to build for themselves. 

Seems we treat the folks a Gitmo a bit better than foreign combatants have been treated in the past...

[Beel]

From Glenn Greenwald yesterday:

People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn't allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice. Spain held an open trial in Madrid for the individuals accused of that country's 2004 train bombings. The British put those accused of perpetrating the London subway bombings on trial right in their normal courthouse in London. Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem to stand trial for his crimes.

This are the facts.  Just what is "our" problem, or The Right's problem?  And why is it that on even a relatively tiny issue like this, "the Right" seems to speak with one voice?  After all, these guys are going to be tried--it's not like President Obama decided to let them go.  The same New York court tried and convicted the mastermind of the '93 WTC bombing. 

[RJLeeb]

Junior says, at the end of his oxygen supply, The constitution is inviolable. If the terrorists manage to change our minds on that subject, then we really have lost our way of life.

And that is pretty much exactly what I said too.  

That must have been in some other thread, because I don't see where you said that in this one.

What I do see is more criticism of Bush, which is fine, as long as one is willing to concede that Obama is also guilty of violating the Constitution by expanding the warrantless wiretapping policy.

[bobsyouruncle]

What I do see is more criticism of Bush, which is fine, as long as one is willing to concede that Obama is also guilty of violating the Constitution by expanding the warrantless wiretapping policy.

Is there any evidence that Obama has expanded anything about warrantless wiretapping--in practice or otherwise-- beyond the legal defense offered by the Department of Justice in the 10/08 lawsuit charging the Bush administration with violating the FISA Act and  seeking damages from the government?

My understanding of that was that since the lawsuit was not settled while Bush was in office, the lawsuit against the government has rolled over to the Obama adminstration and now names Obama, Attorney General Eric Holder and officials of the NIA and NSA--all as "goverment officials sued in their official capacity."

http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf

Okay, they've now been sued for damages in their official capacity.  I guess they could have just said, "You're right. How much taxpayer money do you want?" and officially have lost the suit on behalf of the American people for wiretapping with which they had nothing to do.

I'll be NOBODY would have attacked Obama for doing that?  Right?  You bet.

So what the attorneys at the Department of Justice did was take the case they were handed, study the laws as they stood at the time and come up with a defense to the lawsuit.  That was their job as attorneys for the federal government.  To the extent that they found an interpretation of the law that would "expand" the power, that doesn't mean that they approve of or intend to continue the policy, it just shows that they are sharp attorneys and good at their jobs. 

This is entirely different from the way you describe it.  It is  misleading to claim that "Obama is also guilty of violating the Constitution by expanding the warrantless wiretapping policy" if what you are referring to is the defense of a lawsuit inherited from the previous adminstration.

Defending this lawsuit has nothing to do with Obama's actual practice or intentions for the future.  I've pointed out before that there is a difference between "all you can eat"  and "all you care to eat."  If the DOJ found legal cover here, it doesn't mean that Obama approves of warrantless wiretapping or intends to implement--much less expand--the practice.

There are a lot of things that are legally defensible but not "best practice" or a good idea.

[RJLeeb]

Both Bush and Obama are responsible for actions taken by their lawyers.

The issue of taxpayer money is irrelevant.  What matters is the precedent the Obama Admin seeks to set.

Do you really believe that our government hasn't continued collecting data?  Do you think they have suddenly stopped warrantless wiretapping?  Of course not.

If the practice continues, he's responsible for it.  If he can close GITMO and shuffle detainees around, he can surely rescind the Patriot Act and reverse the violations of the Bush Admin.

Has he done that?  No.

I really don't see how you can say it has nothing to do with his intentions. 

From this article:
http://blogs.abcnews.com/politicalpunch/2009/10/obama-administration-invokes-state-secrets-privilegeagain.html

The Obama-Biden campaign website describes in part "The Problem" as the Bush administration having "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court."

But President Obama has invoked the state secrets privilege in a number of cases since taking office.

So basically Obama criticized Bush's policy here and then turns around and does it himself.

It seems to me that Obama is just as guilty as Bush because he keeps these policies in place.  And obviously our government is continuing to engage in warrantless wiretapping.

Even without the expansion argument, which I think is still valid, I don't see how Obama isn't also guilty.

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