The Obama Presidency - 2008 & 2012

[molson]

Here's one explanation for the disparity, pulled from the WSJ legal blog.

....

But what’s the rationale here? The Obama administration hasn’t spoken on this point, exactly, but over at the Volokh Conspiracy, the University of Chicago’s Eric Posner gives his provocative two cents. Writes Posner:

[W]hat is the answer? It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.

Two tiers of justice? This can’t possibly be a good thing, can it? Au contraire, continues Posner:

This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.

This system is superior to the two possible one-tier systems. A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty. A pure high-quality system (civilian courts only) would result in too many acquittals. People who the government believes are dangerous will be back on the streets. The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convictions are not possible. The two-tiered system produces higher overall credibility without sacrificing the incapacitation of dangerous (or supposedly dangerous) people.

....

I agree it makes sense, though in a manufactured, un-American kind of way. When I was a prosecutor, it certainly would have made my job easier if, when I had a tough case, I had an option to try it an easier court where the defendant had less rights. I wonder if here, if the KSM trial is more difficult than expected, if the government could call an audible and move it to a military tribunal with the other "hard" cases.

"The government will make a judgment as to whether a suspect is dangerous or not." Where's the due process there (for those have decided that foreign terrorists have due process rights). Isn't this the exact same stuff Bush was criticized for? They're making unilateral decisions about who's an "enemy combatant" without actually using that phrase.

IMO, Obama got a big reality check about national security once he got in office, and now is trying to really subtly just continue Bush's largely successful war on terror (though of course, he'll never call it a "war on terror"), though in a much more polished way in the sense of media and public approval (deceit, really). Obama, and the administration as a whole, is smarter than Bush, no doubt about that. It's quite the scam.

It'd be interesting to see a radical call Obama out on this stuff and make a run at the 2012 Democratic nomination (not that they'd have a chance to win, but just to utilize that platform.)

[Mizzou B-ball fan]

I really wish I wouldn't have done this.

National Debt: $12,000,000,000,000
Number of U.S. Citizens: roughly 300,000,000
Debt owned per citizen: $40,000

Ugh.

[CamEdwards]

Originally Posted by JPhillips

I'd agree you haven't made that argument, but Cam did argue that the trial risks the legitimacy of the system. Like I said, I get the arguments against, I just don't think the possible negatives are as great as some others do.

AT this point I don't think there's any system that can be perfect. At the least, I'm glad we're finally working on a system to provide some sort of justice as opposed to holding them indefinitely and torturing them.

Risking legitimacy isn't the same thing as causing the judicial system to collapse. Jeepers, if you're going to put words in my mouth, at least make them all flowery and eloquent.

[DaddyTorgo]

Originally Posted by molson

So KSM gets a civilian trial, but at least 5 others at Gitmo will get military tribunals (including the architect of the USS Cole bombing).

Holder Defends Trying Alleged 9/11 Plotters in Civilian Court - WSJ.com

So if the civilian trial is the right thing to do for whatever reason - why doesn't this administration think a civilian trial is apporpriate for all of them?

So they're showing off our system to the world or whatever, but hand-picking who actually takes part in that system, which completely undermines the system in the first place. Imagine if we had constitutional trial rights in this country, but the government decided who got them and when. That wouldn't be America. What a sham.

To make myself feel better I'll think about KSM's show trial as a civilian-themed military tribunal.

What I've heard as a rationale is that it's the difference between "enemy combatant in a warzone" versus "terrorist" in brief. Not going to get too deep into how they define that, but that's the rationale I saw somewhere, or heard on NPR.

[SteveMax58]

Originally Posted by DaddyTorgo

What I've heard as a rationale is that it's the difference between "enemy combatant in a warzone" versus "terrorist" in brief. Not going to get too deep into how they define that, but that's the rationale I saw somewhere, or heard on NPR.

I dont see how KSM is not an enemy combatant. Wasnt he picked up in a hideout by "soldiers" in a "war zone"? Or did I forget something fundamental with him?

I dont see any value, beyond the appeasement of those we do not benefit by appeasing, to giving constitutional rights to an enemy combatant.

[DaddyTorgo]

Originally Posted by SteveMax58

I dont see how KSM is not an enemy combatant. Wasnt he picked up in a hideout by "soldiers" in a "war zone"? Or did I forget something fundamental with him?

I dont see any value, beyond the appeasement of those we do not benefit by appeasing, to giving constitutional rights to an enemy combatant.

the nature of his crime i guess

[molson]

It gets even better.

So we have the terrorists they'll try in civilian courts (for the easy cases), the terrorists they'll try in military tribunals (for the hard cases)- but we also have a 3rd category - the status quo. Where they can't prove the case because of evidentiary issues, but the guys are dangerous, so they're just going to be locked up indefinitely:

As Many As 75 Detainees Could Remain In Limbo - The Atlantic Politics Channel

I can't wait to hear Obama/Holder brag about a KSM conviction, bragging that "despite the conservative crititcs, justice was done!" when the administration specifically hand-picked KSM to be tried because it was an easier case than it would be to prosecute the people they will just lock up forever, or subject to military tribunals.

The constitutional rights afforded these terrorists are dependent on how strong the evidence against them is. It's a complete joke.

Imagine that in a domestic context to see how ridiculous that is. Imagine you're charged with a crime, and after the government figures out how much evidence they have against you, they will either: 1. Give you full constitutional rights (if the case is a slam dunk case) 2. Give you a military tribunal with lighter procedures and less constitutional rights (if the case against you is weak) or 3. Just lock you up forever if there's no chance they can prove you're guilty. What do the constitutional rights mean that context? - absolutely nothing. Which is why this this is an embarassing sham, will be nothing more than show trials.

[RainMaker]

Originally Posted by SteveMax58

I dont see how KSM is not an enemy combatant. Wasnt he picked up in a hideout by "soldiers" in a "war zone"? Or did I forget something fundamental with him?

I dont see any value, beyond the appeasement of those we do not benefit by appeasing, to giving constitutional rights to an enemy combatant.

Isn't KSM being charged with the 9/11 terrorist attacks? That's a crime that took place inside our country. The others are being charged for actions of the war and not for the 9/11 attacks.

If a foreigner were to commit a crime such as wire fraud from another country against US citizens, we'd extradite them to this country and charge them in our courts.

KSM is being charged with a crime commited within our borders against our citizens. The others are being charged as enemies in a war that was fought overseas.

[molson]

Originally Posted by RainMaker

KSM is being charged with a crime commited within our borders against our citizens. The others are being charged as enemies in a war that was fought overseas.

The administration hasn't made that distinction, that's just an after-the-fact rationalization that I'm not sure is even supported - the distinction appears to be an evidentiary one.

In Senate vote, signs of shift on Guantanamo Bay detainees - washingtonpost.com

"Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material."

If they can't prove guilt, they won't try them, they'll just keep them. People criticized Bush for this but if Obama does it it's apparently cool. There's been so many threads here about the poor GITMO detainees and the obscene executive power utilized by the Bush administration to keep them there indefinitely. Obama's going to pick out a couple of slam dunk cases and give them civilian show trials (with nothing at stake, they'll be held indefinitely regardless), but other than that, there's no change.

If the administration came out and said "if terrorists were involved in 9/11, we're going to try them in civilian courts, and if their terrorist activities did not involve 9/11, they get military tribunals and/or are held indefinitely", that'd be one thing, but those aren't the rules that have been put in place. And they're definitely not the arguments that were put in place by the Obama supporters/Bush haters prior to all this. I'm quite sure the sentiment here at least was civilian trials for all.

Even if that was the distinction - it's a really bizarre one. If you kill Americans overseas, you get no constitutional rights, limited due process, etc. However, if you're a good enough terrorist to actually kill American in America, even if you never actually set foot here - well, THEN you get full American constitutional rights (or at least the illusion thereof). WTF.

[Young Drachma]

This is one of the half-brothers they didn't expose during the campaign, because I guess it didn't make then candidate Obama look bad.

Obama brothers meet in China - CNN.com

[Mizzou B-ball fan]

Originally Posted by molson

If they can't prove guilt, they won't try them, they'll just keep them. People criticized Bush for this but if Obama does it it's apparently cool. There's been so many threads here about the poor GITMO detainees and the obscene executive power utilized by the Bush administration to keep them there indefinitely. Obama's going to pick out a couple of slam dunk cases and give them civilian show trials (with nothing at stake, they'll be held indefinitely regardless), but other than that, there's no change.

If the administration came out and said "if terrorists were involved in 9/11, we're going to try them in civilian courts, and if their terrorist activities did not involve 9/11, they get military tribunals and/or are held indefinitely", that'd be one thing, but those aren't the rules that have been put in place. And they're definitely not the arguments that were put in place by the Obama supporters/Bush haters prior to all this. I'm quite sure the sentiment here at least was civilian trials for all.

Even if that was the distinction - it's a really bizarre one. If you kill Americans overseas, you get no constitutional rights, limited due process, etc. However, if you're a good enough terrorist to actually kill American in America, even if you never actually set foot here - well, THEN you get full American constitutional rights (or at least the illusion thereof). WTF.

Really well stated.

[SteveMax58]

Originally Posted by RainMaker

Isn't KSM being charged with the 9/11 terrorist attacks? That's a crime that took place inside our country. The others are being charged for actions of the war and not for the 9/11 attacks.

If a foreigner were to commit a crime such as wire fraud from another country against US citizens, we'd extradite them to this country and charge them in our courts.

KSM is being charged with a crime commited within our borders against our citizens. The others are being charged as enemies in a war that was fought overseas.

Yes, his crime is within our borders but his apprehension required military action to facilitate. So, IMHO this is more of a grey area that comes down to philosophical approach.

In my mind, he is a part of an international "group" (which group could be country, alliance of countries, or organization of like-minded individuals...he of course would be the latter) that "we" (via our government) believe are a significant enough threat to our security to consider military action to apprehend, counter, thwart, or kill.

Once we begin to involve the military in such actions, or apprehension...it changes it from police apprehension to an enemy of our country. Now...while we could, in theory, use our military domestically to apprehend or kill domestic threats...the difference in my mind is whether they are a US citizen to begin with. We give a US citizen, or tourist/visitor, the benefit of the constitution (EDIT: I'd add that I'm not sure where the line is where we "should" afford visitors/tourists such rights vs. not...but I'm more willing to afford the benefit to somebody who legally came here and "may" be innocent).

We should not (IMO) be giving, or setting precedant, the idea that the US will give any joker(s) who commit mass destruction within the US, cost the US gravely in blood and resources just to apprehend their worthless asses, the benefit of our constitution and domestic justice system which, by definition of "threat to our security", they would otherwise undermine.

[SteveMax58]

Originally Posted by molson

Even if that was the distinction - it's a really bizarre one. If you kill Americans overseas, you get no constitutional rights, limited due process, etc. However, if you're a good enough terrorist to actually kill American in America, even if you never actually set foot here - well, THEN you get full American constitutional rights (or at least the illusion thereof). WTF.

+1 on the WTF.

[Ronnie Dobbs2]

It's another bizarre decision in a series of them from the WH.

[Mizzou B-ball fan]

ABC News is doing a great job with their investigation of the claimed stimulus jobs on the new Recovery.org website. The General Accounting Office has generally praised the administration for being open with their data. The only problem is that being this open brings out large flaws in how the data is represented and collected, often showing just how little oversight of the program there actually is and how it can easily be used to misrepresent the true impact (or lack of impact) of the spending.

The GAO has said that roughly 10% of all jobs being credited to the stimulus package did not use a single stimulus dollar to create those jobs. In addition, nearly $1 billion in stimulus money was spent without creating a single job. The chairman of the board overseeing the stimulus spending says that he can't certify a single job claim because there's no independent verification of any of the job claims.

GAO Says More Than 50,000 Jobs From Stimulus Projects That Have Spent No Money - ABC News

Video report........

'Significant' Problems Plague Recovery.org - ABC News

[Jon]

Originally Posted by SteveMax58

Yes, his crime is within our borders but his apprehension required military action to facilitate. So, IMHO this is more of a grey area that comes down to philosophical approach.

In my mind, he is a part of an international "group" (which group could be country, alliance of countries, or organization of like-minded individuals...he of course would be the latter) that "we" (via our government) believe are a significant enough threat to our security to consider military action to apprehend, counter, thwart, or kill.

Once we begin to involve the military in such actions, or apprehension...it changes it from police apprehension to an enemy of our country. Now...while we could, in theory, use our military domestically to apprehend or kill domestic threats...the difference in my mind is whether they are a US citizen to begin with. We give a US citizen, or tourist/visitor, the benefit of the constitution (EDIT: I'd add that I'm not sure where the line is where we "should" afford visitors/tourists such rights vs. not...but I'm more willing to afford the benefit to somebody who legally came here and "may" be innocent).

We should not (IMO) be giving, or setting precedant, the idea that the US will give any joker(s) who commit mass destruction within the US, cost the US gravely in blood and resources just to apprehend their worthless asses, the benefit of our constitution and domestic justice system which, by definition of "threat to our security", they would otherwise undermine.

But we have tried individuals in US courts who have been apprehended by the military, so it's not unprecedented. General Manuel Noriega was apprehended by the military in Panama in 1989, and tried in federal court in Florida. The U.S. military is involved with efforts to stop drug trafficking in Columbia, and those arrested are extradited to the United States. Abduwali Abdukhadir Muse, the Somali pirate, was apprehended in a U.S. Navy raid and brought to the Southern District of New York to stand trial.

[Arles]

Originally Posted by SteveMax58

+1 on the WTF.

+2. This is more of a sham than I originally thought. KSM would be one of the worst cases to use for a domestic trial using any form of logic. He:

1. Was captured abroad using our military.
2. Helped mastermind an "act of war" against the US in the 9/11 attack.

That screams military tribunal to me. We have guys going to the tribunal (or not even getting trials) who were picked up in the US and charged of non-military related offenses. Those seem to be much more likely cases for the civilian courts - but I guess their evidence isn't as air-tight.

This whole rationalization is a joke. There's no clear standard for civilian/military/no trial outside of how much evidence they have and if a public trial will help the White House politically. Bush made many mistakes in this as well, but atleast he was open with the process and telling us it was a turd. Obama seems to trying to convince us that a turd with steak sauce on top is actually a high-grade fillet. It's getting embarrassing for our country.

[Ronnie Dobbs2]

Well, I would change "open with the process and telling us it was a turd" to "actively shitting out said turd."

[JPhillips]

Originally Posted by Arles

+2. This is more of a sham than I originally thought. KSM would be one of the worst cases to use for a domestic trial using any form of logic. He:

1. Was captured abroad using our military.
2. Helped mastermind an "act of war" against the US in the 9/11 attack.

That screams military tribunal to me. We have guys going to the tribunal (or not even getting trials) who were picked up in the US and charged of non-military related offenses. Those seem to be much more likely cases for the civilian courts - but I guess their evidence isn't as air-tight.

This whole rationalization is a joke. There's no clear standard for civilian/military/no trial outside of how much evidence they have and if a public trial will help the White House politically. Bush made many mistakes in this as well, but atleast he was open with the process and telling us it was a turd. Obama seems to trying to convince us that a turd with steak sauce on top is actually a high-grade fillet. It's getting embarrassing for our country.

More embarrassing than the Bush status quo that you defended for years?

[SteveMax58]

Originally Posted by Jon

But we have tried individuals in US courts who have been apprehended by the military, so it's not unprecedented. General Manuel Noriega was apprehended by the military in Panama in 1989, and tried in federal court in Florida. The U.S. military is involved with efforts to stop drug trafficking in Columbia, and those arrested are extradited to the United States. Abduwali Abdukhadir Muse, the Somali pirate, was apprehended in a U.S. Navy raid and brought to the Southern District of New York to stand trial.

I think the distinction my viewpoint has with yours is that you do not draw distinction between "acts of war" and the actions themselves. You are talking about precedent for conventional crimes which, while damaging in their own rights, have no direct or further reaching security threats to the country beyond the legality of their actions.

Certainly everybody who commits mass murder, hijacks a cargo ship, or smuggles drugs domestically/internationally is not commiting an act of war. The difference I draw is in "who" does this and with what affiliation "we" associate them with. Since our only mechanism (that I'm aware of) to identify these people currently is by having Congress declare war on a nation...in my mind, it just reiterrates the lack of foresight and thoughtful discussion that our elected officials can't seem to create post-9/11 without all of these ancillary accusations, kangaroo/opportunistic courts, and political gamesmanship.

[Arles]

Originally Posted by JPhillips

More embarrassing than the Bush status quo that you defended for years?

Definitely. When faced with an unprecedented incident over the past 50 years in 9-11, Bush made the decision to use Gitmo as a holding place for captured suspected terrorists/enemy combatants with the use of military tribunals once the evidence had been gathered. Was it an optimal system? No. Did he hold people longer than he should have in certain instances? I would think so.

But, everyone knew the process and he was open with what he was doing. Many critics didn't like it, he took some heat and it ended up being an issue that the democrats beat him with (again, that's fair if you didn't like his process).

Obama campaigns on shutting down Gitmo immediately. Fine, but then he decides no to once he takes office. He then says he will given civilian trials to the terrorists to clean out Gitmo. Of course, we find that only applies to a small percentage. The WH states the selection for these trials has to do with some garbled jurisdiction/military issue. Then, we find that it's based entirely on how much evidence they have and how much positive publicity a civilian trial will give them.

So, despite being told Gitmo was closing ASAP and many will be given civilian trials, we find that outside of a couple publicity stunts - Obama will be continuing the same Bush policies he railed on in the campaigns. I would say that's a lot worse than what Bush did. Here are his exact words prior to being president:

The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:

"Sometimes, we just didn't get the right folks."

We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria--through a rendition agreement--tortured, only to find out later it was all a case of mistaken identity and poor information. . . .

This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .

But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance--even one chance--to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

Then, once he has a chance to make the changes he so eloquently discussed before being president - he passes and keeps Bush's policies in tact.

[Jon]

Originally Posted by SteveMax58

I think the distinction my viewpoint has with yours is that you do not draw distinction between "acts of war" and the actions themselves. You are talking about precedent for conventional crimes which, while damaging in their own rights, have no direct or further reaching security threats to the country beyond the legality of their actions.

Certainly everybody who commits mass murder, hijacks a cargo ship, or smuggles drugs domestically/internationally is not commiting an act of war. The difference I draw is in "who" does this and with what affiliation "we" associate them with. Since our only mechanism (that I'm aware of) to identify these people currently is by having Congress declare war on a nation...in my mind, it just reiterrates the lack of foresight and thoughtful discussion that our elected officials can't seem to create post-9/11 without all of these ancillary accusations, kangaroo/opportunistic courts, and political gamesmanship.

So how do you define act of war? Who can commit it? Was the original WTC bombing not an act of war because the accused was tried in civilian courts? Was the Timothy McVeigh bombing not an act of war (even though the groups he was associated with viewed it as part of the greater war). What about those that tried to bomb the Brooklyn Bridge a few years ago --they were also tried in civilian courts.


If those that commit these acts are committing acts of war, then the offenders are prisoners of war. In that case, we should apply the rules of the Geneva Convention. But, because our government doesn't want to do that, the government created this "unlawful enemy combatant" exception to get around both the Geneva Convention and the due process rights contained in the United States Constitution (which apply to persons, regardless of citizenship). Well, the Supreme Court said that this couldn't be done because those housed at Gitmo were entitled to seek relief in the US federal court system.

To me, it seems pretty straight forward that we would try the cases in the civilian court system. First, the Supreme Court has already stated that the detainees have the right to access the US Federal Court system. Habeaus corpus relief is now decided by the civilian courts, not military tribunals. Second, we've already tried cases like this in the civilian courts numerous times (including citizen and non-citizen AQ members). Third, I'm not concerned that our legal system will ultimately require a dismissal of the charges. There's already precedent on the books (esp here in the Second Circuit) regarding the admissibility of evidence obtained in a similar manner.

The outrage expressed by others appears to me (and I'm not directing this at you or others on this board) is reactionary in nature. Many are trying to use this for political gain. Rudy Guiliani --three years ago--argued that it was proper to use the federal court system to try these individuals because the U.S. legal system should not be adjusted due to reactionary forces. I think he was right. The purpose of our rule of law is to withstand these instances and prevent us from overreaching.

As for the politics--of course it's partially politically motivated. All prosecution has some motivation behind it, depending on the severity of the purported offense. But just because it is a political move doesn't mean it's the wrong one.

We're living in an interesting period of our history where we're trying to deal with a larger issue with many, many unresolved questions. There's bound to be confusion. But the rule of law should remain in force.

[molson]

Originally Posted by Jon

But the rule of law should remain in force.

For those hand-picked by Obama?

Where's the line in the other direction? Do we need to try every enemy solider captured in Afghanistan in a United States civilian court? Do they need to be read Miranda Rights? Can they be searched? How about their 2nd amendment firearm rights? Does Saudi Arabia's constitution apply to me?

Now I'm just being silly. But wherever the line is, on both sides, it's clear that the decisions will actually be made, without any process whatsoever, by the executive branch. They will decide who's punished, who's detained, and who's set free. Just like the Bush administration. There is no rule of law here, there is only rule of men.

A tribunal system (like Nuremberg) is still the rule of law, if its applied consistently, in consistent contexts. A haphazard, arbitrary mess of civilian/tribunals/no trials whatsoever is the opposite of the rule of law. It's law-themed, but it's not really law.

[JPhillips]

Originally Posted by Arles

Definitely. When faced with an unprecedented incident over the past 50 years in 9-11, Bush made the decision to use Gitmo as a holding place for captured suspected terrorists/enemy combatants with the use of military tribunals once the evidence had been gathered. Was it an optimal system? No. Did he hold people longer than he should have in certain instances? I would think so.

But, everyone knew the process and he was open with what he was doing. Many critics didn't like it, he took some heat and it ended up being an issue that the democrats beat him with (again, that's fair if you didn't like his process).

Obama campaigns on shutting down Gitmo immediately. Fine, but then he decides no to once he takes office. He then says he will given civilian trials to the terrorists to clean out Gitmo. Of course, we find that only applies to a small percentage. The WH states the selection for these trials has to do with some garbled jurisdiction/military issue. Then, we find that it's based entirely on how much evidence they have and how much positive publicity a civilian trial will give them.

So, despite being told Gitmo was closing ASAP and many will be given civilian trials, we find that outside of a couple publicity stunts - Obama will be continuing the same Bush policies he railed on in the campaigns. I would say that's a lot worse than what Bush did. Here are his exact words prior to being president:


Then, once he has a chance to make the changes he so eloquently discussed before being president - he passes and keeps Bush's policies in tact.

That's a pretty serious rewrite of history. Initially not only was there no process, but there was hostility to the idea of even having a process. Gitmo was chosen largely because it placed detainees outside of any nation's code of laws. The decision to use military tribunals came years later and was never codified into a workable system. When Obama took office there was no ongoing process at all, only general ideas of what might happen.

[molson]

Originally Posted by JPhillips

. Gitmo was chosen largely because it placed detainees outside of any nation's code of laws.

So prior to the Iraq war, prisoners of war will held where, in county jails?

[Jon]

Originally Posted by molson

For those hand-picked by Obama?

Where's the line in the other direction? Do we need to try every enemy solider captured in Afghanistan in a United States civilian court? Do they need to be read Miranda Rights? Can they be searched? How about their 2nd amendment firearm rights? Does Saudi Arabia's constitution apply to me?

Now I'm just being silly. But wherever the line is, on both sides, it's clear that the decisions will actually be made, without any process whatsoever, by the executive branch. They will decide who's punished, who's detained, and who's set free. Just like the Bush administration. There is no rule of law here, there is only rule of men.

A tribunal system (like Nuremberg) is still the rule of law, if its applied consistently, in consistent contexts. A haphazard, arbitrary mess of civilian/tribunals/no trials whatsoever is the opposite of the rule of law. It's law-themed, but it's not really law.

If you're admitting that you're being silly, why bother to make the argument. I can't speak for the Saudi Arabia constitution. But the United States Constitution applies to "persons." There is a process--the process that decides whether or not someone is an unlawful enemy combatant. If they are not found to be an unlawful enemy combatant (by a US FEDERAL court--not military), they are freed. This was established as the law BEFORE Obama was elected.

You make it sound as if there is no rationale for trying the five in the Southern District. It makes more sense to try the five AQ members here, then it does the Somali pirate. It's jurisdictional. It's where the worst damage of the crime occurred-in NYC--in the Southern District. It doesn't matter that they were apprehended in another state, nation, etc if the crime was committed here. That's why we have extradition laws--so they can be tried where the crime was committed, not where they were apprehended. This is not a novel concept.

We're acting as if the U.S. had never arrested a terrorist before--the US government has arrested and convicted hundreds of alleged terrorists (citizens and non-citizens alike) in the civilian court system.

Obama is having a hard time figuring out what to do. The prior administration left a huge mess when they decided to create a new class of person so they could avoid due process.

[Jon]

Originally Posted by molson

So prior to the Iraq war, prisoners of war will held where, in county jails?

Nice try to convolute the issue here--mixing 9/11 and the Iraqi War. Gitmo was designed to hold suspected AQ terrorists. Prior to that, they were held in federal detention facilities in the United States.

[molson]

Originally Posted by Jon

Nice try to convolute the issue here--mixing 9/11 and the Iraqi War. Gitmo was designed to hold suspected AQ terrorists. Prior to that, they were held in federal detention facilities in the United States.

So if Obama was president after 9/11, how would he have handled prisoners of war from Afghanistan? What would the theoretically "correct" course of action have been, regarding terrorists, prisoners of war, etc.

From your posts, you should be extremely upset about the way Obama is handling this. He is not applying the constitution. He's not applying any consistent rule of law.

The first part of my question above was serious - does the 4th amendment apply to United States soldiers overseas when interacting with enemy soldiers?

[SteveMax58]

Originally Posted by Jon

So how do you define act of war? Who can commit it? Was the original WTC bombing not an act of war because the accused was tried in civilian courts? Was the Timothy McVeigh bombing not an act of war (even though the groups he was associated with viewed it as part of the greater war). What about those that tried to bomb the Brooklyn Bridge a few years ago --they were also tried in civilian courts.

We should have defined for ourselves who we are at war with, and the "who can commit it" is taken care of. Naturally...external (or domestic) groups do not determine "war status" for us. None of the above cases were acts of war...at the time they were committed...and hence were handled appropriately. The first WTC bombing, likely should have been an instance to evaluate whether the associated group(s) of RBA should be considered enemies of the US (or "at war").

If those that commit these acts are committing acts of war, then the offenders are prisoners of war. In that case, we should apply the rules of the Geneva Convention. But, because our government doesn't want to do that, the government created this "unlawful enemy combatant" exception to get around both the Geneva Convention and the due process rights contained in the United States Constitution (which apply to persons, regardless of citizenship). Well, the Supreme Court said that this couldn't be done because those housed at Gitmo were entitled to seek relief in the US federal court system.

This is a problem with our domestic law. If/when the Geneva Convention defers to our own "domestic law", our domestic law, in turn should defer these POWs to military tribunals. So long as we are "at war" with a given group, we should not be considering their POWs "domestic criminals". But this requires official recognition of non-country/territory specific groups...which we (to my knowledge) do not do in any form. This is a mistake...as it is one thing to not recognize a group/government as eligible for diplomacy...but quite another not to recognize them as entity to apply applicable law to.

To me, it seems pretty straight forward that we would try the cases in the civilian court system. First, the Supreme Court has already stated that the detainees have the right to access the US Federal Court system. Habeaus corpus relief is now decided by the civilian courts, not military tribunals. Second, we've already tried cases like this in the civilian courts numerous times (including citizen and non-citizen AQ members). Third, I'm not concerned that our legal system will ultimately require a dismissal of the charges. There's already precedent on the books (esp here in the Second Circuit) regarding the admissibility of evidence obtained in a similar manner.

So, in your opinion, why would Obama (a lawyer himself) oppose this viewpoint now?

We're living in an interesting period of our history where we're trying to deal with a larger issue with many, many unresolved questions. There's bound to be confusion. But the rule of law should remain in force.

I would like to see our elected leaders facilitate the clarification of this, among many issues. Unfortunately...it was only worth clarifying when a different guy was President.

[molson]

Originally Posted by Jon

Nice try to convolute the issue here--mixing 9/11 and the Iraqi War. Gitmo was designed to hold suspected AQ terrorists. Prior to that, they were held in federal detention facilities in the United States.

So everyone that the united states military captured in the Gulf War and Vietnam and WWII were shipped to federal prisons? Did they all get civilian trials? They should have sued the United States for violation of their constitutional rights, as I bet a lot of those arrests/detentions were made without due process. They're certainly "persons" under the constitution.

There's lines to be drawn no matter what. On both sides.

[Jon]

Originally Posted by molson

So everyone that the united states military captured in the Gulf War and Vietnam and WWII were shipped to federal prisons? Did they all get civilian trials? They should have sued the United States for violation of their constitutional rights, as I bet a lot of those arrests/detentions were made without due process. They're certainly "persons" under the constitution.

There's lines to be drawn no matter what. On both sides.

See, I don't buy the assumption you're making--that the fight against Al Qaeda is the same as the Vietnam War, Gulf War, and WWII. Nation-states and terrorist groups are different.

And you're missing my point--in the past, terrorist threats against non-military United States places have been tried in civilian courts, and those individuals have been afforded constitutional rights because those rights attach to their trials.

Detainees in Gitmo are NOT the same as those individuals captured in Vietnam and in the original Gulf War--they were treated as prisoners of war. "Unlawful enemy combatant' is a new class of people created by the Bush administration to avoid the legal rights and treatment afforded to prisoners of war. Relief groups were able to visit POW's in WWII, Vietnam, and the Gulf War. Gitmo--no. If you are a POW, you have legal rights. Until the Supreme Court rejected the argument several times, the Bush administration position was that they don't have rights because they are not POW, they are unlawful enemy combatants (a term BTW, that is narrowly defined).

As I've said before on this board, the issue is not the fact they were apprehended in another nation. It's that the crime was committed in the United States. That's why some offenses committed by civilians on military installations, are tried in civilian courts. Others detained for offenses against the U.S. military installations (like the Cole bombing) are tried in military courts. It's a jurisdictional issue. I suspect that's what's going on here.

One more point--it's interesting that certain people are angry that the rule of law is not being respected by Obama, but had no problem with the Bush policy of detention without providing a basis of detention for an unlimited period of time. But, now, because it's Obama--oh my god---rule of law, rule of law.....

If you equate stopping terrorists with traditional warfare, fine. Then shouldn't domestic terrorists like Randall Terry be tried in military courts.

If you don't think that non-citizens should have rights under the constitution, fine. But then there's nothing left to debate (although it would really undermine the argument that a lot of pro-lifers have been making the last few decades---that unborn fetuses should be "persons" for the purposes of constitutional protections--if it's citizens, the argument fails, because it would require a fundamental change in citizenship law).

[SteveMax58]

Originally Posted by Jon

One more point--it's interesting that certain people are angry that the rule of law is not being respected by Obama, but had no problem with the Bush policy of detention without providing a basis of detention for an unlimited period of time. But, now, because it's Obama--oh my god---rule of law, rule of law.....

I'm still trying to figure out why you are not upset about Obama's refusal to observe the same interpretation that you have? So...you are fine with his selective civilian trials?

If you equate stopping terrorists with traditional warfare, fine. Then shouldn't domestic terrorists like Randall Terry be tried in military courts.

No, of course domestic(and many international) terrorists are not in the same category. "Terrorists" have different allegiances and agendas...we (rightfully should) pick the groups of "terrorists" we believe are a significant threat to our country and its citizens and consider ourselves to be "at war" with such groups.

[Arles]

Originally Posted by Jon

One more point--it's interesting that certain people are angry that the rule of law is not being respected by Obama, but had no problem with the Bush policy of detention without providing a basis of detention for an unlimited period of time.

My main issue with Obama is that he laid into Bush numerous times in the Senate and the campaign for keeping Gitmo open and not giving people held there fair trials. Then, once he was made president and had the power to change things, he decided not to and continue most of the Bush policies in Gitmo.

[Jon]

Originally Posted by Arles

My main issue with Obama is that he laid into Bush numerous times in the Senate and the campaign for keeping Gitmo open and not giving people held there fair trials. Then, once he was made president and had the power to change things, he decided not to and continue most of the Bush policies in Gitmo.

For a minute there, you sounded like a liberal. : )

I think he has made some substantial changes. He announced the closing of Gitmo and announced the review of cases to determine whether enemy combatants were being properly detained (of the 215, I believe that 30 have been released). The justice department is reviewing the remaining cases to determine whether military and civilian trials are appropriate, with the policy yet to be developed on the rest. That is a change from the previous administration's view of detention without proof.

It may not be as fast as some have wanted, but it is a shift in policy. And, he also has the benefit of additional information that he did not have before the election. It's like Bush and nation building--he said he wasn't for it, but look at his legacy. He put the United States in the position to nation build in two countries (I'm not judging the value of doing this, just pointing it out--that's a separate conversation).

[Jon]

Originally Posted by SteveMax58

I'm still trying to figure out why you are not upset about Obama's refusal to observe the same interpretation that you have? So...you are fine with his selective civilian trials?.

I'm not certain he doesn't agree with that interpretation. Using jurisdictional tools to determine where to try a case is nothing new. If a Gitmo detainee was apprehended in Afghanistan attacking a military installation, and they're classified as an unlawful enemy combatant, then a military trial is appropriate. If a Gitmo detainee, regardless of where he is apprehended, is apprehended for suspicion of a terrorist act on U.S. soil, then, like the hundreds of others who have been tried and convicted here, then the civilian mechanism is appropriate.

Unless we're given specific information on each case (which we know he won't do, or shouldn't, due to national security), we won't know the basis. Just because a national security process isn't shown to the world does nto mean one wasn't done. Look at the FISA courts.

BTW, please keep this up, I want to hit 500 posts (do I get like a promotion or something)? I've been a member since almost the beginning, but seldom post.

[Arles]

Honestly, I don't care about Bush. I thought he made some poor decisions (esp economically) in the last term. So, this "he isn't as bad as Bush" logic is a waste for me.

I just don't see much credibility with Obama given his comments in the campaign. He talked about "not being able to sleep at night" if Gitmo was open and he was in charge and railed into Bush incessantly. To be in position to make the changes that couldn't happen soon enough in 2006-2007 for him, but pass until mid to late 2010 is extremely hypocritical.

It's all fine and good to use aggressive rhetoric on things like accountability with stimulus spending, closing Gitmo and cronyism in the cabinet. But, when he has the chance to make different decisions as president and he doesn't - I don't see how he can keep much credibility.

[Dutch]

Originally Posted by Jon

For a minute there, you sounded like a liberal. : )

I think he has made some substantial changes. He announced the closing of Gitmo and announced the review of cases to determine whether enemy combatants were being properly detained (of the 215, I believe that 30 have been released).

The Obama administration has released 30 so far this year. The Bush administration was releasing about 70 per year.

[RainMaker]

Originally Posted by Jon

One more point--it's interesting that certain people are angry that the rule of law is not being respected by Obama, but had no problem with the Bush policy of detention without providing a basis of detention for an unlimited period of time. But, now, because it's Obama--oh my god---rule of law, rule of law.....

That's the issue with partisian politics. If Obama had chosen to do it the other way, the same people would be complaining about that. It's not about right or wrong, it's about being opposed to everything.

[SteveMax58]

Originally Posted by Jon

I'm not certain he doesn't agree with that interpretation. Using jurisdictional tools to determine where to try a case is nothing new. If a Gitmo detainee was apprehended in Afghanistan attacking a military installation, and they're classified as an unlawful enemy combatant, then a military trial is appropriate. If a Gitmo detainee, regardless of where he is apprehended, is apprehended for suspicion of a terrorist act on U.S. soil, then, like the hundreds of others who have been tried and convicted here, then the civilian mechanism is appropriate.

But this is my point...my understanding of the Geneva Convention argument is that

a) There is no such thing as an unlawful enemy combatant...one is either a POW or a civilian...and as such should be assigned as one or the other
b) If you presume POW status then the domestic laws of the Geneva-complying country are to be applied.

Beyond the basics of shelter, food, humane treatment, etc. stuff...my understanding (which is not scholarly) is that there are no express implications, nor requirements, of that domestic law. So, if our domestic law were to be such that identified groups of "bad people", allowed us to declare ourselves hostile or at war with such "groups", then we'd be able to defer all "groups" we are "hostile" with to military tribunals.

I'm not arguing the legalities of retro-actively doing this...I'm just merely pointing out a (seemingly reasonable) approach could have (and perhaps should have) been done.

[ace1914]

Originally Posted by Dutch

The Obama administration has released 30 so far this year. The Bush administration was releasing about 70 per year.

Originally Posted by RainMaker

That's the issue with partisian politics. If Obama had chosen to do it the other way, the same people would be complaining about that. It's not about right or wrong, it's about being opposed to everything.

I was just about to post this. He's damned either way. Although, now he's trying to cookie cut justice which doesn't seem right.

[JPhillips]

Originally Posted by molson

So prior to the Iraq war, prisoners of war will held where, in county jails?

Mostly in theatre, but also in the U.S. Nazi prisoners were held in camps all over the U.S.

Guantanamo had never been used as a detention facility. It was chosen because it seemed like it was beyond the jurisdiction of any court. It offered a place where detainees could be help indefinitely without access to attorneys and where torture, or enhanced interrogtion if you prefer, was unlikely to get court review. That's why it was such a big deal when the Supreme Court gave Gitmo detainees habeus rights.

[molson]

Someone posted this link from a liberal website here after one of the recent SCOTUS GITMO cases (the link was from 2002):

"The New York Times reported that the detainees may be held indefinitely—even if they are acquitted in a military tribunal. The Times report quotes Pentagon lawyer William J. Haynes II: “If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge but may not necessarily automatically be released.”

Let that sink in: acquittal would not mean release. Why? Because these are “dangerous” people, Haynes says. How’s that a for a commitment to “this nation’s ideals, including the rule of law.” It appears the critics of military tribunals were not premature in voicing their concerns"

This was just considered horrible under Bush, but now acceptable under Obama. And he's gone further - they'll keep people even after a civilian aquittal (and just flat out detain others indefinitely)! The funny thing is, I know there was at least one pro-civilian trial post here that mocked aquittal fears noting that these people aren't going anywhere anyway. Though that was considered bad, just a year or two ago, under another administration.

[JPhillips]

Wait, I thought it was bad form to mention the previous administration. Now that's okay again?

[ace1914]

Originally Posted by JPhillips

Wait, I thought it was bad form to mention the previous administration. Now that's okay again?

It is to prove a point.

[molson]

Originally Posted by JPhillips

Wait, I thought it was bad form to mention the previous administration. Now that's okay again?

Actually, I think it would be funny if people continued to bash Bush for holding terrorists indefinitely.

Now I'm waiting for Obama to decide he's pro-torture, so I can watch the Democrats then shift on that too, and create all these after-the-fact rationalizations about why that's OK now.

[Jon]

Originally Posted by molson

Actually, I think it would be funny if people continued to bash Bush for holding terrorists indefinitely.

Now I'm waiting for Obama to decide he's pro-torture, so I can watch the Democrats then shift on that too, and create all these after-the-fact rationalizations about why that's OK now.

You do understand that the current administration's policy is substantially different than the previous administration's policy right? He's not rubberstamping the Bush policy--especially since Bush didn't believe in due process rights for the detainees, which is why the unlawful enemy combatant class was created in the first place. And, just so you know, I'm not coming at this as an Obama supporter. I'm coming at this as a process person.

Oh, as for the torture thing--he's already decided to continue extraordinary renditioning. That's an old story, and liberals were outraged by it. In all honesty, I think the liberals were too pissed off at other things to focus on this. As I've said numerous times before, during the primary and general campaigns, anyone that thinks he's Lefty McRed is going to be sorely disappointed. He's mostly a moderate, with some liberal leanings, and some conservative leanings. His position on gitmo is a mix of pragmatism and legalese.

(I was going to be more sarcastic based on your earlier posts assuming that all Obama people think alike--but then I saw you voted for Rutgers in your top 25).

[Flasch186]

Originally Posted by Arles

My main issue with Obama is that he laid into Bush numerous times in the Senate and the campaign for keeping Gitmo open and not giving people held there fair trials. Then, once he was made president and had the power to change things, he decided not to and continue most of the Bush policies in Gitmo.

I agree!

...and if theyre acquitted they should be let go...

{now what happens on their way to the pastures is something I dont want to know about }

[CamEdwards]

Originally Posted by Flasch186

I agree!

...and if theyre acquitted they should be let go...

{now what happens on their way to the pastures is something I dont want to know about }

So you're in favor of a three tiered justice system? Military, civilian, and vigilante?

[Flasch186]

We always have had military tribunals, weve always had civilian

AND

We've always had vigilante, its just this last one we dont know about and we find out about 50 years later or never at all. Am I in favor of it? No, but I do know that it exists ALL over the world. Is it going to change? No. and if someone couldve snuck in and killed Hitler I'd have been for that.

What I dont think should exist and never has is the right to take someone off the street and put them in jail forever without ever charging them with anything at all.

[Jon]

Here's an article on the Washington Post that discusses the civilian vs military trial issue.

hxxp://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html?hpid=opinionsbox1