Archive for the ‘gitmo’ Category

I suspect that Eric Holder and company are putting KSM, Ramzi bin Alsheebh, and the other high level al Qaeda folks in federal court for a few reasons.  First, it’s a way of repudiating Bush’s controversial classification of high level al Qaeda people as an illegal military organization.  Second, it shows a naive faith in the justice system that does not address the real problems with ordinary civil trials for terrorists, i.e., the requirements of Miranda warnings for someone as high level as Osama bin Laden or the revelation of intelligence-gathering techniques as happened in the first World Trade Center trial of Ramzi Yousef.  Three, it shows someone who has not really thought through a controversial decision, which is a sign of a guy making decisions in an echo chamber.  Of course, this last bit is not that surprising.  Various high level DOJ folks spent much of the last eight years representing al Qaeda’s biggest dirtbags and getting them habeas review and other assorted offensive gestures, which rendered the benefits of the military tribunal system less robust than they would otherwise be.

I really don’t understand this way of thinking.  There are criminals, sometimes very bad people but also fellow citizens, and they deserve a robust defense.  They deserve this because they’re proxies for all of us potentially, who may wind up through mistake, bad luck, or the like an innocent person in the dock, criminally accused.  But al Qaeda detainees are foreigners, bad people, mass murderers, and delared enemies of the United States.   As enemies they’ve always been treated differently.  You don’t blow up the house of an accused criminal, but you do blow up an al Qaeda member’s house overseas, and you don’t worry too much about his wife and children who may be at home. It’s a different more flexible set of rules where the fears of domestic overreach have little application, not least because these are foreigners and enemies.  We’re not going to do this to fellow citizens.  There is little danger of any normal American being on the wrong end of this system.

Obama’s a lawyer, and this privileging of the domestic legal system over well-established principles of military justice is part and parcel of the broader contempt liberals have shown for the military since the Vietnam War, exemplified, not least, by their mass expulsion of ROTC from Ivy League campuses, and the mass desertion from military service by those who attend elite schools.

This is an atrocious and indefensible decision, and Holder’s defense of it shows the slipshod way that it was enacted and is now being defended.  Watching him squirm, however, gives me newfound respect for Lindsay Graham.


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One of the biggest traditional liabilities of the Democratic Party, particularly since the election of Ronald Reagan, has been its perception as weak on national security. 

The end of the Cold War gave the party a new lease on life, but 9/11 propelled Bush to office.  His comparative incompetence, particularly in waging a wasteful and prolonged “nation building” effort in Iraq, turned back the dial towards a more realistic and restrained foreign policy championed by Obama. 

That said, Obama misreads the public if he thinks all but a few of us care much about the long-suffering detainees in GITMO or whether Khalid Sheikh Mohammad was water-boarded or much else that Bush did in the wake of 9/11 to treat al Qaeda as a military problem to be dealt with by military means, including targeted killings, streamlined military tribunals, and prolonged preventitive detention for the duration of the conflict.

Bringing Khalid Sheikh Mohammad to Manhattan for a civilian federal trial is the repudiation of all of these efforts, for which GITMO itself is only a symbol.  The prospect of a circus, complete with condemnations of America, divulgence of our intelligence apparatus, and lengthy and cumbersome procedures is the wrong tool for the job and will do much to demonstrate why al Qaeda is a different kind of problem from an ordinary criminal conspiracy. 

Let us only hope that the lesson is not written in blood in the form of a spectacular escape, a terrorist attack on the trial site itself, the murder of a federal judge, or, perhaps worst of all, an acquittal based on the application of civil liberties inappropriate and unearned by foreign enemies of the United States.

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The left has broken down every cultural standard:  on good birth, on language, on relations of the sexes, on sex itself, and on right and wrong generally.  Should it be so surprising in this milieu that the last taboo, the taboo against sex with children, is now being attacked, at least for the talented who deserve special privileges?

The left’s fervent attacks on the Catholic Church’s sexual abuse scandals might seem confusing, but it’s now clear that these attacks were chiefly a pose to delegitimize one of the few respected voices criticizing the trends of the age.  We saw a bit of the real moral idiocy at work among the left in the recent celebration of Michael Jackson, in spite of his well known penchant for pedophilia.  But in the arrest of Roman Polanski, a sexual degenerate of the worst kind who drugged and raped a 13 year old girl, the tone of his supporters has been surprising even by the low standards set by the left and the Hollywood gliterrati.

“As a Swiss filmmaker, I feel deeply ashamed,” Christian Frei said.

“He’s a brilliant guy, and he made a little mistake 32 years ago. What a shame for Switzerland,” said photographer Otto Weisser, a friend of Polanski.

Who knew that making a few good movies was enough to give one carte blanche literally to rape and maim and drug and sodomize children?   Well, that, and he’s a Holcaust Survivor, which makes him the victim par excellence entitled to victimize others apparently.

The protests of the French “cultural minister” really takes the cake:

“To see him thrown to the lions and put in prison because of ancient history — and as he was traveling to an event honoring him — is absolutely horrifying,” French Culture Minister Frédéric Mitterrand said after Polanski was arrested upon arrival in Switzerland to attend the Zurich Film Festival, where he was to receive a lifetime achievement award. “There’s an America we love and an America that scares us, and it’s that latter America that has just shown us its face.”

I’m sure glad we are shutting down GITMO to appease the well developed consciences of these people.

It seems at times that we are competing with incredible panache to win the Most Decadent Declining Empire Award, lest the Safavids or Romans retain their titles! Indeed,  I haven’t seen this many otherwise respectable people get motivated to help a rapist escape justice since Leo Frank!

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I followed closely and also defended most of the administration’s actions on military tribunals and detention of unlawful enemy combatants. The victory of the administration in convicting Osama bin Laden’s drive, Salim Hamden, has proven a Phyrrhic one. The military tribunals process has been drawn out and subject to repeated smack downs by the judiciary. This end result contradicts their initial purpose which was to be swift, harsh, and devoid of intelligence leaks that would occur in a civilian trial. It has simply taken too long for this process to get underway. Further, the administration’s public relations have been as hackneyed as usual, insofar as most of the GITMO detentions are preventative rather than punitive in nature, and the initial characerization of GITMO’s denziens as the “worst of the worst” has been shown to be a gross exagerration.

The biggest obstacle to the administration’s designs has been a predictable but hitherto overlooked one: the culture of the American military combined with their role in sentencing. Military men the world over have often found war crimes trials unseemly, overly political, and arbitrary in who is punished, released, or overlooked altogether. Ideologically charged civilians in the DOJ would likely be more harsh and consistent in their dispatch of al Qaeda’s foot-soldiers on the familiar RICO theory of “enterprise liability” coupled with the military offense of belonging to an irregular and illegal organization. Under the UCMJ, the court martial panel decides on the sentence for the accused, in contrast to judicial sentencing in civilian courts. It is strange that mandatory sentences and the application of sentencing by a civilian judge has not been imported into the tribunals regime, as in this particular the military practice is decidedly more pro-defendant.

The old “law of war” rules that lawful combatants must be in uniform, bearing arms openly, and attached to a state actor has been undermined by a century of irregular wars of national liberation. From Vietnam to Somalia, our military is quite simply used to fighting such “irregulars” and does not find that behavior, without more, to be a serious offense. Americans in general are also unlikely to subject individuals to group liability for the actions of others. It appears the military panel here distinguished pure terrorists from mere fellow travellers. The al Qaeda forces in Afghanistan, in contrast to the 9-11 hijackers, were primarily involved in a conventional war with the Northern Alliance and were in the country by voluntary arrangement with the Taliban regime. It is natural that being executed or punished harshly for this offense and little more would be anathema to the average American soldier, who is unusually willing to look sympathetically on a man “fighting for his country” or, in this case, a sincerely acknowledged cause. The rhetoric of critics who predicted summary convictions in kangaroo courts should be revisited too, as Hamdan’s sentence was only 5 and half years.

The military’s light punishment of Hamdan has undermined the strategic purpose of the military tribunals. If that strategic purpose of swift and harsh punishment for mere membership in al Qaeda is truly worth pursuing (and I think it is), the administration should not allow misplaced sympathies based on the prejudices of professional soldiers to get in its way. For starters, sentencing should be made more regular and put in the hands of judges restricted by some reasonable guidelines or statutory minimums. As it stands, the worst of both worlds has been achieved by the administration’s military tribunal process: the light punishments of a civilian justice system coupled with unorthodox procedural protections that have drawn sustained criticism from all over the world.

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The Supreme Court again has intruded on legitimate executive prerogatives, made up rules that expand its own powers, and shown little regard for the fact that we are at war with a committed and wily enemy.

I haven’t had time to read the latest installment in the Hamdan saga, but I’m going to provide links to some earlier analysis I’ve written about GITMO, unlawful combatants, and related issues.

Due Process at GITMO.

GITMO detainees go back to the battlefield.

Padilla and the courts.

Habeas may help the wrong people.

On the first Hamdan decision and the Court’s various errors.

On unlawful combatants.

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