The American Spectator : State Verses Khalid Sheik Muhammad

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The Obama Watch

State Verses Khalid Sheik Muhammad

By Jay D. Homnick on 11.16.09 @ 6:08AM

A disaster of Biblical proportions.

“Trying the mastermind of 9/11 in New York City? This Obama is a disaster of Biblical proportions,” a fellow murmurs to me in the synagogue, although he offers no sources in Scripture for his assertion. Presumably he means nothing more than to compare our President to some of the less highly-regarded kings whose exploits are rendered in the holy texts. But his line gave me pause: who does Obama bring to mind among those figures? And is the handling of Khalid Sheik Muhammad specifically violative of Biblical norms?

My first thought was of King Amaziah in Kings II Chapter 14. This was at the time when there were two Jewish kingdoms, Judea and Israel, dividing the territory of the original Holy Land and maintaining an uneasy peace. Amaziah was king of Judea, the smaller monarchy. He successfully prosecuted a war against the neighboring country of Edom and, flushed with victory, he sent emissaries to King Joash of Israel challenging him to a war.

The message Joash returned is a classic (verse 9 and 10): “The thistle in the forest sent the cedar in the forest a request for their offspring to be grafted together, until a group of wild animals from the forest passed through and trampled the thistle. You defeated Edom and your heart is carrying you away. Settle down and stay home and don’t look for trouble which will bring you and your people down.”

Here is a wonderful image to describe a young whippersnapper who wins an election and thinks he can conquer the world. He may have worked his way into the big forest but he is still a thistle, his lack of experience and lack of substance leaving him a fragile target for the vicious creatures who roam the dark woods.

To see Obama swagger his way into the center of every major issue, from Mideast negotiations to restructuring the entire American health-care system, expecting full resolutions in a short time with a few easy steps, is to see those verses come alive.

AS FOR THE DECISION to bring Khalid Sheik Muhammad to a civilian trial in New York City, a different story in Kings I applies vividly. King Ahab, husband of Jezebel, led the kingdom of Israel for some years, behaving in reprehensible ways. He encouraged the spread of idolatry and he stood by while his wife rounded up the legitimate prophets and executed them.

Yet God tolerated King Ahab and allowed his rule to be fairly effective, with the exception of a period of famine designed to wean the citizenry from trusting the illicit fetishes of fecundity. According to tradition, Ahab was granted wide latitude because he was a uniter who brought factions together harmoniously.

Then he made his first really false move, in Kings I Ch. 20, when his men captured Ben-Haddad, the vicious, marauding king of Syria (Aram), who had intended to wipe out the country and enslave its young. Ben-Haddad’s men advise him to soft-pedal his conversational tone when confronted by Ahab, because the Jewish kings want to be seen as nice guys. Sure enough, Ahab cuts his counterpart slack and restores him to his throne.

At that point, the prophet tells Ahab God will no longer forgive. “Because you released My antagonist from your hand…” (See Kings I 20:42.) This establishes a classic principle. Although the leader is held liable for guiding the people along ill-conceived moral and cultural paths, the one unforgivable act is sacrificing the safety of his charges for the sake of his image as a man of tolerance.

THIS IS CLEARLY what we are witnessing here with this perverse determination to try Khalid Sheik Muhammad in a civilian proceeding. By doing this, his prior guilty plea in a military tribunal is voided. Any attorney would now advise him to plead not guilty and recant his confession. Instead of the mountain going to Muhammad, it will more likely shrink to a molehill.

If indeed Muhammad claims now that his prior admissions were elicited by torture, he will have the explicit backing of the President. Obama has indicated not only that waterboarding qualifies as torture, but that no fair-minded attorney could possibly have reached the opposite conclusion in good faith. That’s right, just saying that waterboarding a terrorist prisoner is legal has been imputed to be a criminal act.

By definition, then, Obama and Holder have thrown out the evidence in advance of a trial. The fruit of the poisoned tree is not going to get you very far in the Big Apple. Time magazine hastens to assure us that there is still a slender chance that the government will somehow pull it off, because whiz-kid prosecutor Preet Bharara is on the job. Good grief!

For some years, Khalid Sheik Muhammad was the Moby Dick of the American intelligence community. Now Moby has met Captain Ahab and, lo and behold, he seems ready to throw him back into the water.

About the Author

Jay D. Homnick, commentator and humorist, is a frequent contributor to The American Spectator. He also writes for Human Events. Here he speaks at the Rally for Religious Freedom in Miami on June 8, 2012.

Letter to the Editor View all comments (173) | Leave a comment Leave a comment

Tony in Central PA| 11.16.09 @ 7:32AM

As far as our history is concerned, will this mark the first time that a foreign enemy combatant of this prominence will be tried in a civilian court ? I assume there have been good reasons beyond the comprehension of this current Administration for why that's the case. For starters, how does an enemy combatant who isn't even a US citizen obtain the same kinds of rights and protections under our laws as a citizen ? Oh, I forgot, this Administration is transnationalist.

drudge ette obama| 11.17.09 @ 6:36AM

Obama's, I mean Holder's decision after consulting with his wife and brother, to hold these trials in New York courts rather than military tribunals is a TRIAL BALLOON on steroids.

First, Holder says he didn't run his decision by Obama, that he just advised him once he made it. Sure... thise leaves Obama open to change the decision, Of course, this will mean the Holder will be put out to pasture, where he belongs with his wife and brother. Obama is out of the country, so when he gets back following another failed foreign diplomacy effort, he can put some serious Obama thought into whether Holder's decision was the right one.

S.L. Toddard| 11.16.09 @ 7:46AM

Once again Mr. Homnick illustrates the shameful cowardice and anti-Americanism that are the defining characteristics of the neoconservative right: they lack sufficient faith in the American way of life to trust her legal institutions, and what faith they do have - what little patriotism they do possess - is overwhelmed by their cravenness in the face of terrorism. They simply do not believe America is up to the task. They mistrust the American system of government and would abandon it in their cowardice.

R Martin| 11.16.09 @ 8:18AM

What utter nonsense. We who still hold strong traditional American values recognize the Obama/Holder move as a brazen, vicious political attack on those values and the people and government institutions who have protected us in the past. Obama simply wants to embarrass the previous administration and humble America further. He is shameful.

S.L. Toddard| 11.16.09 @ 8:40AM

"We who still hold strong traditional American values..."

We who still hold strong traditional American values recognize that those values, and those traditions, are entirely up to the task of prosecuting accused terrorists. It is only those who do NOT hold strong traditional American values who believe our traditions are not up to the task, and who - in their fear - believe we must abandon our traditional values by embracing kangaroo courts, show trials and torture chambers like some 3rd world banana republic.

kwinterkorn| 11.16.09 @ 4:37PM

The administration and their supporters say there is no significant chance that KSM will not be found guilty----they have assured us of the verdict before the trial. Like the Red Queen, "verdict first, then the trial." I have even heard that they are assuring doubters within their fold that even if KSM wins in court, there is no way he will walk free. In other words, Obama and Holder are preparing a Kangaroo court for KSM. Traditional Amercian values say (in civil trials) "KSM is innocent until proved guilty." Traditionally, Presidents have taken the position that they should not comment on legal cases pending trial.
The administration and their supporters say they want to SHOW the world that our system of justice is stronger than the terrorists-----SL Toddard says using "kangaroo courts and show trials" is "like some 3rd world banana republic."

If there is a terrorist act in NYC anytime during the many years that this trial will slog on, even if coincidental, the Democratic party, and their leader, Obama, will not be forgiven by the American people. Very foolish move.

JimE| 11.16.09 @ 5:36PM

Toddard,
You are a leftiest piece of feces, you have no interest in justice, you merely want America to be put on trial. These bags of shit already confessed and asked to be killed so it is nothing more than a magic negro PR stunt.

S.L. Toddard| 11.16.09 @ 8:51AM

"recognize the Obama/Holder move as a brazen, vicious political attack on those values and the people and government institutions"

I couldn't agree more. Obama's plan is to prosecute in open court only those accused whom he is convinced can be convicted. For those *accused* whom real trials might end in acquittal, he will try in some other, perverted system - military commissions or what-have-you. And for those who cannot be convicted there - because torture tainted their evidence, or because they have not yet committed crimes - they will be held in "preventive detention", indefinitely. In other words, Obama will only use the system that is guaranteed to end in imprisonment. There is a locution for this system; it is: "show trials".

So yes, Obama's actions are indeed an assault on our values. All terrorists should be tried in open court, under the time-tested, constitution-approved, traditional American legal system. Obama seeks to abandon that traditional system and the values it embodies. True conservatives should oppose Obama and his attack on the rule of law, and demand that our justice system not be perverted by kangaroo courts and show trials.

S.L. Toddard| 11.16.09 @ 7:48AM

"...the Right's reaction to yesterday's announcement -- 'we're too afraid to allow trials and due process in our country' -- is the textbook definition of "surrendering to terrorists." It's the same fear they've been spewing for years. As always, the Right's tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it's hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.

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.

It's only America's Right that is too scared of the Terrorists -- or which exploits the fears of their followers -- to insist that no regular trials can be held and that "the safety and security of the American people" mean that we cannot even have them in our country to give them trials. As usual, it's the weakest and most frightened among us who rely on the most flamboyant, theatrical displays of "strength" and "courage" to hide what they really are. Then again, this is the same political movement whose "leaders" -- people like John Cornyn and Pat Roberts -- cowardly insisted that we must ignore the Constitution in order to stay alive: the exact antithesis of the core value on which the nation was founded. Given that, it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate -- 'it's too scary to have normal trials in our country of Terrorists' -- is as pure a surrender to the Terrorists as it gets."

http://www.salon.com/opinion/g...../terrorism

R Martin| 11.16.09 @ 8:08AM

Please refrain from polluting these pages with tripe from Salon.

S.L. Toddard| 11.16.09 @ 8:52AM

Just close your eyes and all the unpleasant facts will go away. Sequester yourself in a right-wing echo chamber, and you'll never have to hear such disconcerting truths again.

jr| 11.16.09 @ 5:39PM

Spain, for one, convicted 3 for murder and given a life sentence. Repeat the words: "life sentence." Understand those two words? Obama may be able to give the terrorists life sentences but those will be limited -- if you live to be a few years older to witness them.

Alan Brooks| 11.16.09 @ 7:48AM

Khalid ought to be executed merely for the excess hair on him.

Melvin| 11.16.09 @ 7:54AM

Then what good is being an American citizen anymore.
You can come to our land, declare a religious war on us, murder and maim thousands of us and our government lets you return to our land like some triumphant Caesar.
It will not be these Islamic Jihadists who will be on trial, but it will be us and our country who will be on trial and made a mockery for all the world to see.
How the hell can we as a people allow this to stand? Our government is putting us on trial here. By God! I didn't spend twenty years in our nation's military and fight for freedom so some Muslim Bastard who murdered thousands of my fellow citizens can come and gloat over the carcass of the destroyed World Trade Center.
We don't have to wait for an Islamic Caliphate to be installed in this Country there is already a Sheik sitting in the White House.
I'm so damn angry right now, and I know thousands if not millions of Americans feel the same way I do, and there isn't one damn thing we can do about it. There is one thing we can do but the irony of it is, we would be the one called Terrorist.

Louis Jenkins| 11.16.09 @ 8:42AM

Melvin, you stole my thunder. It is America, GW, and Cheney that on trial, not Khalid Sheik Muhammad. Holder and his minions will shift attention to domestic issue, not Sheik Muhammad's part of the act, as part of their war on America. SL says to trust the American justice system? The judicial system is like a rat warren full of many holes and passageways. When judicial precedence is established it hangs on like kudzoo. The Blind Shiek and the first Trade Center bombing is an example. The only thing missing will be the ferris wheel and merry go round. We already have copious numbers of clowns.

S.L. Toddard| 11.16.09 @ 9:00AM

"It is America, GW, and Cheney that on trial, not Khalid Sheik Muhammad."

That is, quite simply, a lie. Khalid Sheik Muhammad is indeed being tried, and GW and Cheney are not. That is something conservatives should be objecting two - all three should be tried in open court, though obviously GW and Cheney have done more damage, and caused the deaths of more Americans than KSM.

S.L. Toddard| 11.16.09 @ 9:00AM

"objecting to"

Louis Jenkins| 11.16.09 @ 10:11AM

The Preamble to the Constitution established an explicit emplacement of American citizenship. "We the people of the United States of America..." It does not state “We the people of the Whole Wide World!!” The amendments, that we now call the Bill of Rights, including the 6th , were amendments to that Constitution. I dare say Sheik Muhammad would wipe his bum with the Constitution.

Sheik Muhammad is not a US citizen and does not deserve 6th Amendment Rights. European court systems, etc., are not applicable to the US court system (with all its ills and problems), although there is a over powering urge in our society to be more European like. An application of the 6th Amendment to Muhammad is a gross mis-application of court time, funding, and of the Amendment itself. He has already stated his guilt.

Show Sheik Muhammad’s proof of US citizenship? Or is it locked away in some Hawaiian hospital?

I will be full of joy and glee if proven wrong and he is convicted. I have posted a lie? It is an opinion, much like the stuff you post, only yours is posted as the ultimate truth, all others need not apply. I do not subscribe to it.

R Martin| 11.16.09 @ 10:18AM

Were you a failed high school debater who could not develop a cogent argument, and now you're taking it out on us? How, exactly, have President Bush and Vice President Cheney done more damage and caused more deaths of Americans than KSM? And please don't mutter something about Iraq and Afghanistan, theaters of conflict where Bush and Cheney honored their Constitutional commitments, supported by the U.S Congress and a coalition of international allies.

S.L. Toddard| 11.16.09 @ 10:44AM

"How, exactly, have President Bush and Vice President Cheney done more damage and caused more deaths of Americans than KSM?"

Because more Americans have died in the war they launched to deprive Saddam of weapons that did not exist (i.e. a war without justification) than died in the 9/11 attacks, silly.

R Martin| 11.16.09 @ 10:58AM

Silly? In the war THEY launched? I explained why this sort of answer is nonsense and will accept you response as affirmative confirmation of my first question.

Sorry, Ken, I know I should follow your advice, but I can't let this pompous git pump so much bilgewater unchallenged.

S.L. Toddard| 11.16.09 @ 11:23AM

"I can't let this pompous git pump so much bilgewater unchallenged."

How odd. You make that claim and yet still have not offered any substantive challenge. Curious.

Doorgunner| 11.16.09 @ 2:07PM

Funny, I thought this had something to do with it:

"(UN) Resolution 1441 stated that Iraq was in material breach of the ceasefire terms presented under the terms of Resolution 687. Iraq's breaches related not only to weapons of mass destruction (WMDs), but also the known construction of prohibited types of missiles, the purchase and import of prohibited armaments, and the continuing refusal of Iraq to compensate Kuwait for the widespread looting conducted by its troops during the 1991 invasion and occupation. It also stated that "...false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations."

Doorgunner| 11.16.09 @ 2:10PM

You latter day Bolsheviks keep running around claiming WMD as the lone excuse of a "blood for oil" war. Horseshit. WMD was the last reason of many given (as contained in the UN resolution above) AFTER the resolution was issued.

Quit trying to rewrite history, scumbag.

Doorgunner| 11.16.09 @ 2:15PM

And tell me why U.S. Customs patrols off Florida work so hard to keep boat people's feet from touching U.S. soil.

Yes, it is relevant.

Doorgunner| 11.16.09 @ 2:52PM

President Obama:
"I was for military tribunals for Khalid Sheikh Mohammed before I was against them."

Hm, maybe that's why Senator "Keep your stinkin' medals... I didn't really earn'em anyway." Munster is our man in Kabul these days.

S.L. Toddard| 11.16.09 @ 2:54PM

"(UN) Resolution 1441 stated that..."

Oh my - a "conservative" asserting that the United States should take marching orders from the U.N. Good lord.

Nick| 11.16.09 @ 5:31PM

Mr. Toddard,

When are you going to stop using this straw man.

Whether we SHOULD be a member of the UN is a separate question. We are. We signed a treaty.

Conservatives, for the most part, would like to withdraw and kick the UN out of our country. But I don't see that happening anytime soon.

This a completely separate issue from using international law to justify entering a soveriegn country and legally defending our forces in so doing. We were enforcing UN resolutions that the U.S., and others, asked for.

It was like using the internal revenue code to put Al Capone in jail, even though he was a murderer. The outcome was the same and society was safer as a result.

Doorgunner| 11.16.09 @ 6:19PM

No such assertion was made. The only assertion: you're a cheap liar.

tailgunner| 11.16.09 @ 2:00PM

You're the one pushing lies.

Anyone who's watched reruns of 'Perry Mason' knows that when the guilt of the accused is indisputable, a good lawyer attacks the legal process, interrogation and evidence gathering techniques, and especially the motives of investigators and prosecutors.

Remember OJ Simpson? His attorneys put Mark Fuhrman and the LAPD on trial.

Or Ken Starr? It was an article of faith on the left that he was a political animal in the pocket of Richard Mellon Scaife.

You know very well that the legality and propriety of the interrogation policies put forth by GWB and Dick Cheney are the key to KSM's defense.

Since the left has managed to 'mainstream' the false trope that 'enhanced interrogation techniques' are 'torture, KSM's defenders have had most of their heavy lifting already done for them.

And since most of the evidence came from KSM's open admissions, the fact that he wasn't 'Mirandized' may well be what triggers his complete release into the streets of New York City.

Thanks, Obama.

Roy| 11.16.09 @ 10:06AM

I really don't understand now what prevents them from sending a thousand cannon fodder to take potshots at us, then before we get close they throw away their guns and say "You're imagining things, I'm not an enemy combatant."

For every transparent clown who does this(KSM? I ask you - Osama's well known #3? for pete's sake), we now apparently owe them an entire federal trial with all the bells and whistles, at a cost of thousands upon millions upon gigaskillions of dollars. They could bankrupt us overnight. Mighty lucky old Adolf didn't think of this, but were we this dumb back then?

Next angle: KSM's confession invalid because he was "tortured". KSM found innocent for "lack of evidence". KSM released "to prove the trial was fair". KSM laughs, goes home to Pakistan and sets up massive suicide bombing campaign at military bases..

C. B. Bergin| 11.16.09 @ 8:10AM

Thanks for the Bible lesson Jay, it was very apt to the situation. Tolerance and mercy should never be blind or universal. They must also reflect the condition of the guilty in addition to the moral character and righteousness of the accuser. People without mercy should not be shown mercy without strong mitigating factors. We need to start waking up to the fact that some people do not merit mercy, tolerance or forgiveness. Perhaps from God, but not from us.

Michael Tomlinson| 11.16.09 @ 8:52AM

Once again Toddard rushes to the defense of his "love" Obama. Such butt sharking or ass kissing by an alleged "conservative" is nauseating. The Obamacons are worse than Pelosi’s bitches, the blue lap dogs; at least they have a bit of integrity by openly identifying with the big spending, UN loving, anti-Constitutional and anti-American Democrat party.

A few facts the Obamacons overlook. (1) The terrorists are not American citizens and not automatically beneficiaries of our civil liberties. (2) They were not arrested, but captured in a war sanctioned by Congress (precedent established by FDR is that they be tried in military courts). (3) They were not read their Miranda rights, because they were not arrested committing a common crime so if they are to be tried as common criminals they should go free for this failure of procedure. (4) The evidentiary change of custody does not meet the standards demanded in a Federal court thus the GITMO 5 should go free if they are tried in a Federal court and accorded the rights of US citizens (as Obama is doing). (5) This is a political show trial where Obama and his mouthpiece Holder have, based on their public pronouncements, tried, convicted and sentenced to death the accused. How can they expect a fair trial when Obama has so corrupted the jury pool? (6) Obama’s liberal media allies have already made statements that if they aren’t convicted Obama will just seize them and try them in another kangaroo court or before military tribunals – whatever happened to double jeopardy? (7) Obama doesn’t give a damn about the law or Constitution this is a political stunt to attack conservatives, attempt to rally his leftist base by Bush bashing, embarrass the CIA, denigrate the US military and subvert the Constitutional liberties of real American citizens who he through the NSA has deemed “terrorists.”

The rallying cry of those who love the Constitution and the rule of law regarding Obama’s travesty of justice should be FREE THE GITMO 5 or try them in the proper venue a military tribunal.

S.L. Toddard| 11.16.09 @ 9:05AM

"Once again Toddard rushes to the defense of his "love" Obama"

Mr. Tomlinson never passes up a chance to demonstrate his ignorance and profound deficiencies in reading comprehension. I did not "defend" Obama - quite the opposite: I *condemned* Obama. I said: "I couldn't agree more (that Obama's actions constituted "a brazen, vicious political attack on those [American] values and the people and government institutions")". I said "So yes, Obama's actions *are indeed* an assault on our values. All terrorists should be tried in open court, under the time-tested, constitution-approved, traditional American legal system. Obama seeks to abandon that traditional system and the values it embodies. True conservatives should oppose Obama and his attack on the rule of law, and demand that our justice system not be perverted by kangaroo courts and show trials." That is a criticism, a condemnation - not a "defense".

tailgunner| 11.16.09 @ 2:16PM

"Kangaroo courts and show trials"?

Do you even know what you're talking about?

Military tribunals have been used in this country for decades.

Those of us who have been in the military have even given them a name.

We call them COURTS-MARTIAL. And members of the military have been tried by them for well over a hundred years.

They're essentially the same as those given to spies and saboteurs in our nation's history...even those who were US citizens.

Yet in your eyes these time-honored tribunals are merely 'show trials'.

That's why I'm asking if you have a clue.

What's more important to you; the rights of terrorists, or the rights of our military?

Are you saying that terror subjects deserve greater legal protection from 'kangaroo courts' that our soldiers, sailors, airmen and marines?

Or does it even concern you that our military has been mistreated, by your own standards, for a hundred years?

'Enemy combatants' are legally the same as spies and saboteurs. They have NO legal protection under Geneva and should never have been granted any by the US.

They are the scum of the battlefield and deserve no more than a field trial and a quick bullet.

S.L. Toddard| 11.16.09 @ 2:40PM

“Do you even know what you're talking about?”

Of course.

“Military tribunals have been used in this country for decades.”

Not to try accused terrorists captured far from any battlefield. Such have traditionally been tried in our justice system.

“Yet in your eyes these time-honored tribunals are merely 'show trials'.”

They are by definition “show trials” when the verdict is decided beforehand. Obama’s plan is civilian trials for those who can be convicted in them, a NEW – unprecedented – commission (being designed now) for accused individuals who cannot be convicted in a real court, and for those who cannot even be convicted there, they will be “preventively detained”. That is the definition of “kangaroo court”.

“What's more important to you; the rights of terrorists, or the rights of our military?”

What’s most important to me is the rights of the innocent.

“Are you saying that terror subjects deserve greater legal protection from 'kangaroo courts' that our soldiers, sailors, airmen and marines?”

I’m saying accused terrorists should be tried for their *crimes* in *criminal* court.

“'Enemy combatants' are legally the same as spies and saboteurs. They have NO legal protection under Geneva and should never have been granted any by the US.”

False. The Supreme Court of the United States, in the Hamdan decision, determined that "Common Article 3 of the Geneva Convnetions apply to the conflict against al Qaida"
http://gulcfac.typepad.com/geo....._the_.html

“They are the scum of the battlefield and deserve no more than a field trial and a quick bullet.”

What about those suspects captured far from any battlefield? What about *innocent* suspects captured far from any battlefield? Is it your contention that they – innocent civilians – should receive a bullet in the head? Should innocents captured in the nonsensically named “War On Terror” not be able to defend themselves in court?

tailgunner| 11.16.09 @ 4:06PM

"Not to try accused terrorists captured far from any battlefield. Such have traditionally been tried in our justice system."

Really?

"President Franklin D. Roosevelt ordered military tribunals for eight German prisoners accused of planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin. All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail..."

FDR's use of military tribunals was upheld by SCOTUS in Ex parte Quirin et al. (And they were pretty far from home...except for two of the saboteurs who were US CITIZENS.)

Saboteurs, again, are legally the same as spies and unlawful enemy combatants under Geneva.

If tribunals are so unfair, why is Obama, through his sock puppet Holder still committed to military commission trials for *any* detainee?

And we still have the discrepancy between your assumption that military tribunals are *automatically* unfair to terrorist detainees while these same tribunals have been used in the US military for decades.

The definition of 'unlawful enemy combatant' under Geneva is unambiguous. The left should never have twisted it to make *them* the victims, and SCOTUS should never have inserted itself into President Bush and Congress' prosecution of an ongoing war.

What you're advocating will lead to an increase of terrorist attacks and hostage taking with the intent of freeing any terrorist brought to these shores.

Anyone who's read about the horrors of the Beslan school hostage crisis, where nearly 200 children were murdered (many of who were shot in the back as they tried to flee) would not entertain the possibility of provoking that kind of action here.

How would Obama react if al-Qaeda sleeper agents or freelancers took over a school in Silver Spring, Maryland and shot one child per hour until KSM was flown to Cuba, Venezuela or Afghanistan? You don't think AQ is capable of that?

S.L. Toddard| 11.17.09 @ 8:55AM

"If tribunals are so unfair, why is Obama, through his sock puppet Holder still committed to military commission trials for *any* detainee?"

Because Barack Obama is a radical, anti-American statist. That ALONE proves it. Not that we needed any more evidence of that.

S.L. Toddard| 11.17.09 @ 9:05AM

Tailgunner - serious question: What about those suspects captured far from any battlefield? What about *innocent* suspects captured far from any battlefield? Is it your contention that they – *innocent civilian* – should receive a bullet in the head? Should innocents captured far from any battlefield in the nonsensically named “War On Terror” not be able to defend themselves in open court?

S.L. Toddard| 11.17.09 @ 9:09AM

" Military tribunals have been used in this country for decades. Those of us who have been in the military have even given them a name. We call them COURTS-MARTIAL"

WRONG. The military commissions being discussed and military courts-martial are two separate procedures.

tailgunner| 11.17.09 @ 10:02AM

Please enumerate said details and the source where you found them. Thank you.

tailgunner| 11.17.09 @ 10:03AM

details=distinctions

S.L. Toddard| 11.17.09 @ 11:02AM

Tailgunner - I do not expect you to take my word on this, but there is a profound, categorical distinction between military courts martial (under the Uniform Code of Military Justice) and the "military commissions" instituted by GWB and modified and embraced by Barack Obama. If that is something of which you are unaware, then perhaps our disagreement is not as severe as it seems. Just do a little research and you'll find that this is correct - now, it may be that you still support the military commissions (as opposed to courts martial under the Uniform Code of Military Justice), but they are two entirely different procedures. In all sincerity this is not something I am inventing, and it should take you no time at all to confirm. That was what the whole kerfuffle was about, initially - the refusal of the Bush admin to use established venues like civilian courts or military courts martial, and instead relying on newly created tribunals sans traditional safeguards and checks and balances etc.

Adam Smith| 11.16.09 @ 1:14PM

Well said Michael.

Those of us who have been long time political observers understand what is going on and connected the dots long ago. This decision comes as no surprise and is purely political strategy on the part of the administration.

S.L. Toddard| 11.16.09 @ 9:18AM

I, of course, have not spent much time thinking through the logistical concerns with trying enemy combatants in American courts. Such matters are beneath my consideration, really. I have no understanding of the tradition of trying prisoners of war. I'm sure the granting of Constitutional protections to foreign enemies captured outside the country is in keeping with US code and precedent. It's somewhere in the back.

S.L. Toddard| 11.16.09 @ 9:45AM

"the logistical concerns with trying enemy combatants in American courts."

Logistical concerns are irrelevant. We do not scrap our justice system due to "logistical concerns".

"I have no understanding of the tradition of trying prisoners of war"

Also irrelevant - we are not trying "traditional" "prisoners of war".

"I'm sure the granting of Constitutional protections to foreign enemies captured outside the country is in keeping with US code and precedent"

It, of course, IS entirely in keeping with US code and precedent, as we have tried numerous terrorists captured abroad in our traditional legal system.

Sorry, Mr. Tomlinson - your arguments have, once again, been utterly annihilated.

S.L. Toddard| 11.16.09 @ 9:54AM

That I've made blanket statements with no reference to precedent or code only furthers my point:

"It, of course, IS entirely in keeping with US code and precedent, as we have tried numerous terrorists captured abroad in our traditional legal system."

As long as I continue to SAY that opposing arguments have been annihilated, I won't have to bother annihilating them. Having a loud voice is what counts.

tailgunner| 11.16.09 @ 2:22PM

Your 'logistical concerns' may well result in EVERY detainee tried in civilian courts being immediately released.

The lack of 'probable cause' and Miranda rights, (not required at the time) will probably result in the charges thrown out even before the trial begins.

Are you aware of this? Does it concern you? Are you looking forward to it?

S.L. Toddard| 11.16.09 @ 2:49PM

"Your 'logistical concerns' may well result in EVERY detainee tried in civilian courts being immediately released."

My god - I can't imagine that our military and intelligence agencies are so unprofessional and inept that they haven't captured one terrorist who could be convicted in a fair trial. Perhaps I just have a higher opinion of them than you do.

"The lack of 'probable cause' and Miranda rights, (not required at the time) will probably result in the charges thrown out even before the trial begins."

Name one case where a terrorist caught abroad and tried in court was released on a Miranda violation.

"Does it concern you?"

Not at all. In America, we imprison criminals *after* they have been convicted in court. If we cannot convict them, we let them go. That is a bedrock principle of American jurisprudence. Now, you personally may not value America's traditional institutions, and perhaps that disrespect explains your radicalism, your wish to either abandon or violate all those principles we Americans hold dear. Radical statists like yourself, in your worship of Authority and your religious reverence for the State, are comfortable empowering our government to capture anyone off of any street anywhere in the world to secret them away indefinitely without the chance to defend themselves in court. That's fine, but you have to keep in mind that the rest of us are not necessarily radical statists like yourself. Some of us - and this might seem crazy to YOU - some of us *mistrust* government, some of us believe such power is dangerous and should not be given to Beltway elites.

tailgunner| 11.16.09 @ 4:25PM

"My god - I can't imagine that our military and intelligence agencies are so unprofessional and inept that they haven't captured one terrorist who could be convicted in a fair trial. "

Are you capable of thinking coherently?

The detainees were captured, interrogated and processed under wartime rules and procedures set forth by the Bush Administration and under Geneva Conventions dealing with unlawful combatants. (The actual rules at the time; not the twisted revisionist emasculated definition of the left.)

Those rules have been almost completely thrown out by the left and Obama and replaced, years after the fact, with much stricter criminal rules of evidence never intended for the battlefield.

You refuse to account for that. Instead, you quite disingenuously smear military and investigators as 'unprofessional' and 'inept'.

Did you expect them to be 'psychic'?

Even then, I don't believe they could have conceived of the left's coordinated, vicious, rabid, treasonous and politically motivated assault on their own military and intelligence services who risked and lost their lives to protect us.

They are NOT 'criminals'. They murder and hide behind men, women and children on and off the battlefield. They do not wear uniforms (I guess Taliban are the exception) and do not honor any Geneva provisions whatsoever.

'Radical statists'? Who do you think you're psychanalyzing?

Please. Spare us the morally superior posturing.

S.L. Toddard| 11.17.09 @ 8:51AM

Wait - let us stop for a second. We need to distinguish between civilian courts, military courts martial (under the Uniform Code of Military Justice) and the "military commissions" instituted by GWB and modified and embraced by Barack Obama.

My argument is that accused terrorists, depending on individual circumstances, should be tried in civilian courts, or at least in military courts martial (under the Uniform Code of Military Justice). My argument is that these institutions have proved entirely sufficient to the task and that they should be utilized instead of military commissions, which in their present form were created out of thin air without the safeguards and checks and balances (judicial oversight, jury, etc) provided by civilian courts and military courts martial. To embrace these kangaroo courts is to abandon fealty to the Rule of Law and to demonstrate that one lacks faith in the very traditions and institutions we are supposedly fighting for. Military Commissions are traditionally used in battlefield situations, where (for instance) a spy is captured behind our lines. You're on the battlefield, you can't ship the accused to a civilian court, so you institute a sort of rough battlefield justice. That is simply not the case here - not AT ALL. The scope of the "War On Terror", that the entire Earth is considered "the battlefield", precludes the use of military commissions. It is simply too dangerous a power to give the US government - that they should have the power to abduct any person from anywhere on earth, accuse them of a crime and then either convict them without trial by jury or any judicial review whatsoever, or beyond that to *hold them anyway*, indefinitely, with no trial at all!

I'm sorry, but to support granting our federal government such radical, authoritarian powers is the definition of "statist".

tailgunner| 11.17.09 @ 10:25AM

The idea of military commissions dates back to the Revolutionary War.

The Supreme Court upheld military commissions to try CITIZENS in ex parte Quirin et al. Eight Nazi saboteurs, including two US CITIZENS (most of whom incidentally landed on a Florida beach 25 miles from where I live), were tried and convicted by military commission. Most were executed.

And nobody ever claimed that Ponte Vedra Beach, Florida was a *battlefield*.

Military commissions were *not* 'created out of thin air'. Congress set forth the rules of the modern military commissions with guidance from SCOTUS.

'Kangaroo courts' is a liberal talking point like 'black hole' and 'innocent detainees'.

By the time a battlefield detainee gets to Gitmo he's passed through enough interviews to eliminate all but the most likely suspects or those with the greatest intelligence value.

I challenge you to provide an instance of gross dereliction of duty where an absolutely innocent detainee was knowingly transferred to Gitmo.

S.L. Toddard| 11.17.09 @ 11:13AM

"I challenge you to provide an instance of gross dereliction of duty where an absolutely innocent detainee was knowingly transferred to Gitmo."

To what purpose? It's not enough that innocent people have been sent to Gitmo and detained sans due process for years, incommunicado? That's not a violation - to abduct an innocent person from the street and hold them for years under brutal condition, with no access to a defense, no communication with their families? Innocent persons should not be entitled to defend themselves in court?

S.L. Toddard| 11.17.09 @ 11:30AM

"The Supreme Court upheld military commissions to try CITIZENS in ex parte Quirin et al."

The Supreme Court upheld that the commissions that were used *in that case*, under *those circumstances* (a declared war) - which do not currently apply - were lawful. But, as the report from the American Bar association noted (ht Wiki):

"The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all"

And more recently the Supreme Court in Hamdan v Rumsfeld, ruled that Common Article 3 of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals used to try them were in *violation* of US law.

S.L. Toddard| 11.16.09 @ 9:56AM

Also, please note that Mike Tomlinson is *defending* Obama's plans, while I am *condemning* them. This is an example of what conservatives mean when they note that neoconservatives are more liberal than conservative.

John II| 11.16.09 @ 5:30PM

Confucius say, "Man who reject experience and common sense for supposed principle undermine foundation of same."

Thank you so much.

S.L. Toddard| 11.16.09 @ 9:57AM

"We do not scrap our justice system due to 'logistical concerns'. " That I've failed to explain HOW our justice system is being scrapped is irrelevant, considering the fact that military tribunals are both constitutional and valid by international standards of armed conflict.

Ken (Old Texican)| 11.16.09 @ 10:16AM

Mr. Homnick
Thank you.
You know, I think I remember the Bible talking about "forgiveness only after repentance".

Fast forwarding past Toddard's Soros commercials,

...I will venture into the "upshot" of the matter. It seems to me that this "trial" is simply one more effort by the communists', ( pardon the shorthand ), to knock the props out from under our republic.
I listened to Obama's choir singing "let's be fair to these men" all weekend. I was especially fascinated by the pious expressions on their faces as they sang.
Sir, not one single positive thing can be accomplished by these trials. Not one!

Conversely, we shall all watch the slow motion train wreck spin off into goodness knows what ditches....and we Americans are standing in those ditches.
Distracting spectacle though isn't it? Sorta' like pinning a sign on every law abiding American citizen's back saying "kick me".

Tim| 11.16.09 @ 11:26AM

Shhhh Texas!
S.L. Toddard is pontificating.

1FreeMan| 11.16.09 @ 10:22AM

So haw many times will Toddard reply to his own posts? I guess he is his own best fan club. Dude, get a clue (and a job if you please) and go troll elsewhere. Remember old Davie matthews? Ya, he was banned after the same kind of crap you are now doing. You act like an expert on international and domestic law but your own posts prove otherwise. You haven't a clue and yet you pretend to be an authority so you can push your ideas as fact.

EVERYONE: Toddard is not an expert and should be hounded with the truth. Your guess work haven't "annihilated" anyone's argument (aside from the one where we pretend you are sane). You very clearly don't kow what you are talking about... in this post or the many others you post daily... over and over. I think we are all getting really tired of this troll. I mean, really, who replies to their own posts? A lunitic, I guess.

S.L. Toddard| 11.16.09 @ 10:47AM

"So haw many times will Toddard reply to his own posts?"

Ugh. I am not replying to my own posts - I am replying to poor Michael Tomlinson, who is assuming my identity (which is understandable, considering how he's tarnished his own).

Bram| 11.16.09 @ 10:30AM

Obama reminds me much more of Solomon's son Rehoboam. When the people asked for a less oppressive government, he responded:
"Whereas my father laid upon you a heavy yoke, so shall I add tenfold thereto. Whereas my father chastised you with whips, so shall I chastise you with scorpions. For my littlest finger is thicker than my father's loins; and your backs, which bent like reeds at my father's touch, shall break like straws at my own touch."

In response, the ten northern tribes simply walked out and formed their own kingdom. A few years later, Rehoboam ended up appeasing Egypt with treasure to avoid war.

TURK| 11.16.09 @ 10:55AM

I have noticed in the "comments" war on the Am Spec site, that when a piece pierces the heart of the left wing/socialist+ hero, a fellow traveler is assigned to attempt to obscure the heart of the matter, they knowing how far out is their position. slt (only the U is missing), thou protest too much! The volume of your ramblings betray how fearful is the left that THIS time your brethern America Haters have their rear ends way out there. The result of the nonsense will be so catastrophic that even the state run media will be unable to save the day for your glorious leader.

Yosemeti Sam| 11.16.09 @ 10:57AM

Ahem!

Who says the Clintons' penumbra 'influences' in
politics are gone by the way side?

They trike again with their plant in the BHO
administration.

Holder - aka a Clintonista - facilitated two salient
stains on American Justice; did I say stain ? - not
talking about any dresses here; the FALN were provided their walking papers and a fugitive by
the name of Rich was provided clemency.

Now this titular head of the Attorney Generals'
office - presents America with a show trial in
NYC for the scum of the Earth.

Question - will these scum of the Earth be afforded 'Green cards' ? Let's do the max
in making these scum of the Earth comfy.

Tim| 11.16.09 @ 11:28AM

If Khalid walks out of that courtroom a free man...

Pingback| 11.16.09 @ 11:35AM

Twitter Trackbacks for The American Spectator : State Verses Khalid Sheik Muhammad [ links to this page. Here’s an excerpt:

…WordPress blog. Topsy Plugin – WordPress Shortened Links Linking to the spectator.org page http://bit.ly/1cqcod info http://bit.ly/3niH7h info 3 tweets retweet The American Spectator : State Verses Khalid Sheik Muhammad spectator.org/archives/2009/11/16/state-verses-khalid-sheik-muha – view page – cached "Trying the mastermind of 9/11 in New York City? This Obama is a disaster of…

Doctor Right| 11.16.09 @ 11:48AM

Good article, but I think it misses the mark completely.

Obama isn't trying Muhammed in NYC out of some strange sense of justice. He's doing it because, deep down inside, he sides with the Muslims. He admitted as much in one of his idiotic biographies.

Personally, I would LOVE to see some absurd legal maneuvering prompt a liberal judge (hopefully appointed by Clinton) to throw the case out of court, and for Muhammed to be released.

Why?

Because it would be THE END of the Obama Presidency. Hell, it might even end that day...

Hundreds of thousands, maybe millions, would descend on DC and demand his resignation.

After which, Muhammed could be re-arrested, water-boarded (just for fun), forced to eat a big, fat ham sandwich, and set loose on Fifth Avenue.

That would be fun to see.

Ken (Old Texican)| 11.16.09 @ 11:56AM

I hear you guys!

Tim...heh heh heh.....let's put him in a dog cage. I'm almost sure he killed a few pet dogs and cats when the towers came down. Let's sick PETA on him.
I don't want any of you to shoot him. Make him live in a cage for forty years before he gets his seventy two virgins. (smile)

Stop and just think about it a minute, folks.

I am talking now about the "great commission".

ie: "Go ye therefore into all the earth, teaching them all I have commanded you."
Uh: "Love one another as I have loved you. (and ) Remember me as you break bread."

Folks, Islam can never even approach those words from a loving Creator...so where do their words originate?
A mad-man? A barbarian murderer? A schitzo?

...or the ideas of Satan himself?

Jim O'Brien| 11.16.09 @ 12:08PM

It's like trying Japanese pilots who attacked Pearl Harbor in a civilian court, giving them the rights of U.S. citizens. There will be disclosure of all kinds of intelligence about the war against terrorists, lots of propaganda about evil Americans, and so on. It's going to be a show trial designed to benefit terrorism and the critics of Bush and Cheney. But in the end it will lead to more Democrats losing elections. Good.

Wesley Mouch| 11.16.09 @ 1:19PM

I want to know how are we supposed to know who is a terrorist & who is not. The way it is now, if the President says you're a terrorist, you are a terrorist & go into a legal black hole. My understanding of the law is that all people in US custody are supposed to be granted due process, citizen or not, & this has been suspended in our current conflict. Due process is the best way I know of to get to the truth of who is guilty. It is not perfect but I don't know of a better way. Whether due process occurs in NYC or Cuba seems irrelevant to me.

Throw away due process for these guys, you are asking for trouble should the President ever decide YOU are a terrorist.

S.L. Toddard| 11.16.09 @ 2:22PM

"I want to know how are we supposed to know who is a terrorist & who is not. The way it is now, if the President says you're a terrorist, you are a terrorist & go into a legal black hole."

That is precisely true. And yet that is a policy that the self-described "conservatives" here emphatically and passionately support - these phony lovers of Liberty, these pretend-patriots and quasi-constitutionalists: they believe the American government should be given the unspeakable power to capture and imprison anyone from anywhere in the world and hold them *indefinitely* - based solely on the government's word that the individual is a "terrorist".

That is the definition of *statist*, and it demonstrates clearly a reverence for the power of the State, and a gullible, servile trust in Big Government.

Letitia| 11.16.09 @ 3:21PM

... based solely on the government's word that the individual is a "terrorist".

Why do you keep posting such asininity? In the case at hand it is the terrorist who has identified himself as such; a government assertion to that effect was not required.

Louis Jenkins| 11.16.09 @ 3:55PM

Ahh..hem. I think the title of terrorist has passed by good ol' Sheik Mohammad. He's old hat. The Earthly Messiah has decided to apply it to common US citizens. In case you haven't been keeping up the list of possible terrorists it now includes Ron Paul supporters, Constitution supporters, anti-abortionists, vets returning from the middle east, Right Wing Christians, anti- tax groups, Tea Partiers, gun rights-owners, etc. The President, or should we specify, his footmen, have already widened the definition of terrorist. Maybe when we're arrested we'll get a high visibility trial like Sheik, but I doubt it. More likely incarceration in a FEMA camp under martial law.

tailgunner| 11.16.09 @ 4:39PM

No 'due process'? What are you talking about?

Military commissions are lawful and upheld by the Supreme Court. (Se Ex parte Quirin above.)

Military commissions in the form of courts-martial have been used to try servicemen for decades.

I spent half my Naval career in the administration of military justice and can testify that courts-martial are *at least* as biased in favor of the accused as any civilian court.

"...if the President says you're a terrorist, you are a terrorist & go into a legal black hole."

That is completely false and ridiculous.

Why have detainees been steadily (if slowly) released over the last few years?

Are all the remaining detainees here only because Obama *says* they're terrorists? Doesn't that make him as guilty as Bush?

You guys need to bring your "A" game. Not high-flying morally superior bullsh*t.

Tim| 11.16.09 @ 2:44PM

Due process should not be confused with "do process".

Al Adab| 11.16.09 @ 3:07PM

In re: President Obama.
#1 Bad decision, makes NY a target.
#2 These are not Criminals, they are enemy soldiers who committed war crimes.
#3 The world view of the Left which drives all this is a mirror image of reality.

Answer: Pray for President Obama, Psalm 109:8.
Look it up before replying.

Nick| 11.16.09 @ 3:28PM

Mr. Toddard,

Hey, where have you been hiding?

Your ignorance of Constitutional history is on full display today. As an example, I refer you back to a thread from a couple of weeks ago and hope you answer this time.

On that thread, you wrote that the Afghanistan war was "justified", but there should have been a "Congressional Declaration of War."

On the same thread, you argued that President Jefferson's use of military force was justified against the Barbary Pirates because they were a "clear and present danger."

Yet there was no "Congressional Declaration of War" against Tunis, Tripoli, Algiers, Morocco, or the Ottoman Empire.

If a Congressional declaration of war is required, how can the use of force be justified without it?

S.L. Toddard| 11.17.09 @ 8:02AM

"If a Congressional declaration of war is required, how can the use of force be justified without it?"

Jesus. Why don't you give up? This is not an argument you've brought here - it's a waste of both of our time. Whether or not a war is "justified" and whether it is initiated in the proper constitutional manner are two separate issues.

WilliamInWien| 11.16.09 @ 3:57PM

What other nation seeks to showcase its legal system to the world, especially when terrorists are involved? Why do we have to show that we are better than "them"? I am more concerned about the families and relatives of the victims having to go through a courtroom recreation of 9/11. After conviction, will there be a release for medical conditions so that they can go home and die with their families and fellow terrorists. On TODDARD, I ask again that the "editors" limit total responses to one specific article to, say, three per person. After more than one or two exchanges, I pass over the balance of responses originating from the TODDARDS of the world as it seems I know what is being offered!

Nick| 11.16.09 @ 4:05PM

Mr. Toddard,

You also tried to make the same lame "Common Article 3" argument in that same thread from a week and a half ago.

So, let me again dispatch it posthaste:

1.- CONSERVATIVES think Hamdan v. Rumsfeld is bad law. Just like Roe, Doe, Plessy, Dread Scott, the Warren court, etc. Suprem Court Justices are not infallible.

2.- I'm not surprised a TRUE CONSERVATIVE like yourself would hang your argument on a SCOTUS case decided by the LIBERALS on the court. Or will you now claim Stephens, Ginsburg, Souter, and Bryer are great defenders of American Liberty?

3.- I see you linked to Georgetown instead of the ACS, which is the LIBERAL version of The Federalist Society, a CONSERVATIVE organization. So, I know you read what I wrote.

4.- I'm a Roman Catholic and believe everyone should be treated as a creature created in the image and likeness of God. Harsh interrogation techniques and trials by military commission do not violate this principle or the Geneva Conventions.

Military tribunals, commissions, and courts-martials have been with us since the Founding. Gen. G. Washington captured, tried, and executed Maj. Andre in 10 days. Andre was tried in a military commission.

The Continental Congress adapted courts-martial and Laws of War from the English. English and European versions of the Laws of War evolved over the centuries from Catholicized Ancient Roman Law.

Instead of reading Salon.com, Anti-war.com, Mother Jones, The Daily Worker, and whatever else you read, try reading some U.S. history.

S.L. Toddard| 11.17.09 @ 8:03AM

"CONSERVATIVES think Hamdan v. Rumsfeld is bad law"

No, they don't.

tailgunner| 11.17.09 @ 11:54AM

I do.

We have a terrorist detainee engaging in open warfare, although in the courts, with the Secretary of Defense and, by extension, with the United States.

And the Supreme Court overturns historical precedent, violates the separation of powers, and usurps the constitutional authority of the executive and legislative branches to facilitate a US defeat.

Definitely bad law.

tailgunner| 11.17.09 @ 11:49AM

The way I understand the Georgetown article, the author holds that Geneva is binding on POTUS; but under comments below one poster points out that the Constitution takes precedence and that Congress may modify or even nullify treaties as it sees fit.

Therefore Congress, quite properly, could sanction (as they did, even as many now deny this ) 'enhanced interrogation techniques' and the modern system of military commissions, which are nothing more than refinements of a legal system as old as our nation.

SCOTUS had no constitutional reason to interfere with the prosecution of the GWOT as authorized by Congress and pursued by the President.

S.L. Toddard| 11.17.09 @ 12:53PM

"but under comments below one poster points out that the Constitution takes precedence"

Actually it is the Bill of Rights that takes precedence, and nothing in Geneva contradicts the Bill of Rights.

tailgunner| 11.17.09 @ 1:35PM

Amazing.

The Bill of Rights is PART of the Constitution.

You appear to be ignorant of this.

I *must* be mistaken.

According to Justice.gov, Congress and the President may together modify, change or nullify all or part of a prior treaty.

Including Geneva.

This once again refutes the liberal spin that Geneva is an absolute, unquestionable and legally binding code which overrides US law.

S.L. Toddard| 11.17.09 @ 2:39PM

"The Bill of Rights is PART of the Constitution."

Uh, right. But it is not synonymous with "the Constitution". It is *specifically* the Bill of Rights that trumps our treaties, and no other part of the Constitution.

"According to Justice.gov, Congress and the President may together modify, change or nullify all or part of a prior treaty."

Correct.

"Including Geneva."

Correct, but they have not nullified it, which means it is legally binding.

"This once again refutes the liberal spin that Geneva is an absolute, unquestionable and legally binding code which overrides US law."

Well, anyone who would assert such a thing is ridiculous. Geneva IS U.S. law. But it is not absolute or unquestionable - it can be abrogated etc. Unfortunately for your argument it HAS NOT BEEN, and is currently BINDING LAW in these United States.

S.L. Toddard| 11.16.09 @ 5:50PM

I will not not stand by while you conservative cretins attack the best and brightest president of the United States. Barack Obama is the only one who can lift America above it's petty racism and undo the damage caused by the white greed pigs who have attempted to destroy the world.
Obama is not like other men, he is above and beyond them, to perform analingus on him (which I have done) is to taste greatness. Only Al Gore is only other man alive that even comes close

Nick| 11.16.09 @ 7:15PM

Hello, Toddard, where are you?

Combing the pages of anti-war.com for something to cut-n-paste? Or are you hiding again?

I know you have no logical rebuttal to my points or reasonable answers to my questions. But that has never stopped you before.

John II| 11.16.09 @ 7:20PM

Toddard. King's X for a moment. I've been wondering. Are ANY of these postings yours? Some are clearly send-ups, but they're all at least sophomoric, either earnestly so or mockingly so.

I can't tell the difference. And how am I going to know it's really you if you answer?

Confucius say, "Logophobia often run ahead of self and leave interlocutor in greater puzzlement."

And now back to Charlie Chan.

Bydand76| 11.16.09 @ 7:54PM

Toddard,

Again you show your true colors.

Funny how you are tacking to left on this issue.
This isnt a civilian court matter no matter how hard you try to convince yourself otherwise.

I notice that in almost every single debate in this medium you take the progressive statist' point of view.

Then you claim to be a "paleo-conservative" and rail against the shortcomings of conservatism.

You offer convoluted watered down hyperbole as your argument and strive to adhere to a point that is at best inconsequential.

The question here is Sheik Muhhammed an American citizen with the full rights to American courts yes or no.

No he isnt. However, with his actions and the resulting mass murder of US citizens he needs to be brought to justice. Why do we need to bring this to the US? What purpose does it serve? What is the motivation behind this move?

Since he has been an avowed enemy of the United States of American in a global war and was caught on the battlefield in the WAR! This means he is an enemy combatant.

He deserves nothing. He is not a citizen of this country therefore he gets nothing.
All this will do is undermine the progress we have made against an otherwise determined and currently weakend enemy. This will give Khalid Sheik Mohammed a platform and will re-open painful wounds. This will invigorate their base and cause them to resolve their will.
It is a VERY bad idea!

I cannot understand for the life of me why you would attempt to defend this action by a STATIST administration! By your own words you say that you are a conservative. Where is your conviction sir?

Let me ask you this Toddard.

How do you think this will feel to all of the veterans who have fought in this war? Or the people of New York? Of our country? What about my friends I have lost fighting this piece of human garbage and his minions? What happens if he is found innocent on a "technicallity"?
This is Bullshit! And you know it Toddard!

I know how I feel. It isnt good. I can tack this up to just another betrayal by this damn socialist progressive statist administration.

You disappoint me Toddard. I thought you had more honor and integrity than this.

S.L. Toddard| 11.17.09 @ 8:20AM

“Funny how you are tacking to left on this issue.”

I don’t think you know what “left” means.

“I notice that in almost every single debate in this medium you take the progressive statist' point of view.”

Hm. Seeking to deprive the state of power is “statist”. I see now – in your head “left” is “right” and “statist” is “anti-statist”. You’re in opposite world.

“Then you claim to be a "paleo-conservative" and rail against the shortcomings of conservatism.”

…in Opposite World.

“The question here is Sheik Muhhammed an American citizen with the full rights to American courts yes or no. “

No it’s not.

“Why do we need to bring this to the US? What purpose does it serve? What is the motivation behind this move?”

He is accused of crimes by the United States and is in U.S. custody and should therefore be tried in U.S. court.

“Since he has been an avowed enemy of the United States of American in a global war and was caught on the battlefield in the WAR! This means he is an enemy combatant.”

If he was caught on a battlefield it might, really. But he was caught in Pakistan, by the ISI. Sorry.

“I cannot understand for the life of me why you would attempt to defend this action by a STATIST administration! By your own words you say that you are a conservative. Where is your conviction sir?”

I am condemning this administration, not defending them. All accused terrorists should receive a fair, open trial – period. Obama is only allowing those the gov’t knows it can convict beforehand a fair trial. Those who cannot be convicted in open court will receive special trials. Those who cannot be convicted in these special trials will be held indefinitely in what Obama calls “preventive detention”. This power he has seized – to “preventively detain” people – can be used against people who have *committed no crime*, but are instead people our government believes *will* commit some crime. Such a power is clearly a radical departure, and wishing to deprive a government of that totalitarian power is the opposite of “statist”.

“How do you think this will feel to all of the veterans who have fought in this war?”

I couldn’t possibly care less. It’s not material.

“Or the people of New York?”

Don’t care.

“Of our country?”

Pfft.

“What about my friends I have lost fighting this piece of human garbage and his minions?”

One does not abandon one’s principles because they might upset one’s friends.

“What happens if he is found innocent on a "technicallity"?”

Then he goes free – period.

tailgunner| 11.17.09 @ 10:50AM

"Obama is only allowing those the gov’t knows it can convict beforehand a fair trial. "

Amazing. I don't quite know what to say.

You're the one talking about 'kangaroo courts' yet you have no problem with Obama and Holder 'knowing' they can convict someone in 'open court'?

Does Holder 'know' how the lawyers, judge and jury are going to rule?

Sounds like a 'kangaroo court' to me.

"Those who cannot be convicted in open court will receive special trials." (military commissions)

Where of course, by your own admission, they will be railroaded by a 'kangaroo court'.

"Those who cannot be convicted in these special trials will be held indefinitely in what Obama calls “preventive detention”.

Uh, this is what you guys were *crucifying* Bush and Cheney for doing. Why is this suddenly acceptable under Obama?

(BTW, I'm sure that military tribunals will be open, at least, to the press.)

"If he was caught on a battlefield it might, really. But he was caught in Pakistan, by the ISI. Sorry."

Many Germans were captured immediately after the war in their homes and in restaraunts, bars and other public places without a weapon in their hands. Yet they were lawfully convicted at Nuremberg.

“What happens if he is found innocent on a "technicallity"?”

Then he goes free – period. "

You would see the man who boasts of masterminding the massacre of 3,000 innocent American men,women and children, the destruction of the world's two tallest buildings, much of the Pentagon and four airliners walking out of the courtroom a free man?

Amazing.

Your problem is not with 'statism', it's with the legitimate *role* of statism.

It'd be just fine for you if Obama targets *us* as 'rightwing extremists' for the crime of buying a gun or a box of ammunition after Inauguration Day.

As far as the rest of your 'don't care' garbage, you're going farther out on a limb every time you post here.

Seems all you 'care' about is taking the side of Islamic terrorists while you bleat your utter lack of concern for your country, its citizens and its military.

S.L. Toddard| 11.17.09 @ 10:57AM

"You're the one talking about 'kangaroo courts' yet you have no problem with Obama and Holder 'knowing' they can convict someone in 'open court'?"

YES I DO! That is what I've been saying this whole post:

“I did not "defend" Obama - quite the opposite: I *condemned* Obama”

"I couldn't agree more (that Obama's actions constituted "a brazen, vicious political attack on those [American] values and the people and government institutions")"

"So yes, Obama's actions *are indeed* an assault on our values. All terrorists should be tried in open court, under the time-tested, constitution-approved, traditional American legal system. Obama seeks to abandon that traditional system and the values it embodies. True conservatives should oppose Obama and his attack on the rule of law, and demand that our justice system not be perverted by kangaroo courts and show trials." That is a criticism, a condemnation - not a "defense"

“I am condemning (the Obama) administration, not defending them”

“Barack Obama is a radical, anti-American statist”

S.L. Toddard| 11.17.09 @ 11:05AM

"Uh, this is what you guys were *crucifying* Bush and Cheney for doing. Why is this suddenly acceptable under Obama?"

It's NOT. It's UNACCEPTABLE. I am not an Obama supporter, did not vote for Obama and have never in my life voted Democrat. I believe Obama should be impeached, frankly.

S.L. Toddard| 11.17.09 @ 11:07AM

"It'd be just fine for you if Obama targets *us* as 'rightwing extremists' for the crime of buying a gun or a box of ammunition after Inauguration Day."

NO - that would be fine with YOU. I OPPOSE giving the US government carte blanche to declare someone a "terrorist" and then hold them indefinitely with no due process. YOU DO NOT.

tailgunner| 11.17.09 @ 12:16PM

It's hard to tell *what* you support or oppose from post to post.

Seems the one thing you DON'T support is the determined, unapologetic pursuit of justice for mass murdering terrorists.

Don't tell me what I 'do not' support. Just because I don't slavishly agree with you does not give you the power to psychoanalyze me.

No one has been given 'carte blanche' to declare someone a 'terrorist' (except Janet Reno Napolitano, that is).

If Obama's such a bad guy, why doesn't he immediately close Gitmo and release all the detainees into the US?

After all, their rights are more important than any thing else according to you.

Are you going to go on record here as calling for the immediate release of *all* Gitmo detainees?

I doubt it. As with Obama's call for closing Gitmo, high-flying idealist rhetoric will be brought down by cold hard reality every time.

S.L. Toddard| 11.17.09 @ 12:35PM

“It's hard to tell *what* you support or oppose from post to post.”

I support a small, constitutionally-defined federal government, fiscal responsibility and balanced budgets, the return to America of all of our troops immediately, a border wall across our Mexican border, returning to the states the powers that have been usurped by the federal government, and slashing the size of the fed to a tiny fraction of what it is.

“Seems the one thing you DON'T support is the determined, unapologetic pursuit of justice for mass murdering terrorists.”

That is exactly what I support – JUSTICE.

“No one has been given 'carte blanche' to declare someone a 'terrorist' (except Janet Reno Napolitano, that is).”

Of course they have. George Bush claimed that power, and Obama has officially seized it. See: “preventive detention” proposal.

“If Obama's such a bad guy, why doesn't he immediately close Gitmo and release all the detainees into the US?”

I don’t understand the question. Why would anyone do that?

“Are you going to go on record here as calling for the immediate release of *all* Gitmo detainees?”

I’m not following you. Why would I do that? I am calling for them to be tried for their alleged crimes.

Tailgunner - what about those suspects captured far from any battlefield? What about *innocent* suspects captured far from any battlefield? Is it your contention that they – innocent civilians – should receive a bullet in the head? Should innocents captured in the nonsensically named “War On Terror” not be able to defend themselves in court?

JimE| 11.16.09 @ 8:23PM

Toddard will cry a river for bin laden, tookie williams or mumia but for the victims he wouldn't even urinate in their mouths. Toddard is a coward, nothing more nothing less.

Richard Baker| 11.17.09 @ 7:28AM

I'll make the supreme sacrifice for my country. I volunteer to shoot each of these thugs and save us the cost of the show trials a-coming. Do you think that I'd have to wait in line for the chance? Hey 'dard, you want a piece of this action?

S.L. Toddard| 11.17.09 @ 9:12AM

Wow. Another keyboard tough-guy, ready to kill evil terrorists. What a courageous stance.

John II| 11.17.09 @ 10:05AM

Toddard? Is that you? Or another mock-posting? Or what? We have to figure out some kind of code whereby you can identify yourself as the real Toddard.

Let's see, maybe we can use the secret sign cooked up by W.C. Fields in The Bank Dick. The next time you post, if it's really you, twist downward with your right hand twice so that I'll know it's really you.

This is serious. I can't be using up the sayings of Confucius on a chimera. After all, Confucius say . . . no, skip it. I'll wait for your secret signal.

Richard Baker| 11.17.09 @ 9:57AM

Stoddard:
I also believe in 'Kill a Commie for Mommy." How about yourself? You are still funny to read, though.

Nick| 11.17.09 @ 11:28AM

Mr. Toddard,

"Whether or not a war is "justified" and whether it is initiated in the proper constitutional manner are two separate issues."

Nice try. I didn't ask if the war IS "justified", I asked if the use of force is justified without a "Congressional Declaration of War", as you claim. If military force is not used in a "constitutional manner", does that not delegitimize the use of said force?

Are you claiming President Jefferson was justified in using force against the Barbary Pirates, but acted in an un-constitutional manner in using that force?

This is the Founding generation we're talking about, Toddard. Why didn't the Congess impeach, try, and remove him from office? Why didn't the Congress declare war if the pirates were a "clear and present danger?"

Are we supposed to believe Toddard knows what is "constitutional" and the Founders did not?

And stop using the Lord's name in vain, it is offensive.

S.L. Toddard| 11.17.09 @ 12:01PM

"Nice try. I didn't ask if the war IS "justified", I asked if the use of force is justified without a "Congressional Declaration of War", as you claim"

I did not claim that. Whether or not a war is "justified" and whether it is initiated in the proper constitutional manner are two separate issues.

Nick| 11.17.09 @ 12:13PM

So answer the question.

Did President Jefferson act un-constitutionally?

S.L. Toddard| 11.17.09 @ 12:22PM

I honestly don't know. I don't know why there was no declaration, whether there were extenuating circumstances etc. I don't know whether the quasi-declaration on the part of the Barbary pirates precluded the need for one, or whether the action itself wasn't considered large or significant enough to be considered a "war", or need a declaration. It's certainly not remotely reasonable to conclude that a Founder could never act unconstitutionally, however. See Founder John Adams' Alien and Sedition Acts.

Nick, does the Supreme Court's decision hold as law in the United States, even if one disagrees with it? Or are we only bound by the laws we find agreeable?

Nick| 11.17.09 @ 1:05PM

You don't know if President Jefferson acted un-constitutionally, but you do know President Bush and the Congess violated the Constitution by not declaring war on Afghanistan? And al-Qaeda and Usama bin Laden declared war on the United States, didn't they?

Since you admit your ignorance on this piece of constitutional history, it is reasonable to conclude you are also ignorant of other specifics of U.S. law, like Martial law/laws of war and Laws of Nations. This is why you copy-n-paste from websites like ACS and anti-war.com, isn't it?

Also, you have a case of BDS. Try criticizing GWB for legitimate reasons.

S.L. Toddard| 11.17.09 @ 1:32PM

"Since you admit your ignorance on this piece of constitutional history, it is reasonable to conclude you are also ignorant of other specifics of U.S. law, like Martial law/laws of war and Laws of Nations."

Does that seem logical to you? "Well, since you don't know how to make meatballs, I can assume you don't know how to make a peanutbutter sandwich."

Jesus christ you are obtuse.

Nick| 11.17.09 @ 1:51PM

You can't defend your moronic opinion so you offend instead?

Just explain why a declaration of war against Afghanistan was required.

S.L. Toddard| 11.17.09 @ 2:18PM

Because it is the constitutionally defined role of Congress to declare war. Because it leaves Congressmen no wiggle room. Because if there was a Declaration of War, scumbags like John Kerry and Hillary Clinton could not have later claimed they only authorized force "as a last resort". Because it forces Congressmen to assume a role they have long neglected. Because it unambiguously forces Congress to stand FOR or AGAINST a war, and allows the American people to know their position.

The real question is - why do you believe Congress should NOT have declared war?

Nick| 11.17.09 @ 2:43PM

Now who is being obtuse?

I explained this above.
Were the Congress' of President Jefferson's Administration filled with "scumbags like John Kerry and Hillary Clinton?"

Why haven't we declared war since WWII? Do you know the LEGAL reason? Do you know that a "declaration of war" is a legal construct with rights and obligations for the countries involved? Have you done any reading on the subject at all?

I conclude you have not.
You don't like GWB, for whatever reasons. All you do is look for validation from like minded people. That is why you claim ignorance in Jefferson's case, but certainty in Bush's.

S.L. Toddard| 11.17.09 @ 3:03PM

"I explained this above"

Haha. Jesus - you haven't "explained" anything.

"Were the Congress' of President Jefferson's Administration filled with "scumbags like John Kerry and Hillary Clinton?"

That is really irrelevant. It doesn't make whatever logical point you're trying to make.

"Why haven't we declared war since WWII?"

Because we have abandoned the Constitution.

"Do you know the LEGAL reason?"

What is it, Nick?

"Do you know that a "declaration of war" is a legal construct with rights and obligations for the countries involved?"

What are they, Nick?

Nick| 11.17.09 @ 3:37PM

-No, you haven't "understood" anything.

-It proves my point, because you have no rebuttal, do you?

-Again, you show your ignorance of the concept of war declarations.

-The legal reason we haven't declared war since WWII is because after it, war was made illegal as a means to settle political disputes, through a series of international treaties.

Like the Geneva Conventions, of which you are so expert. Ha-ha!

-The rights and obligations are too numerous to list here. Try delving into Emmerich de Vattel's "The Law of Nations" (1758). It was he, among Blackstone and Grotius, that the Founders read.

Now, if you can't stop being profane, I will have nothing more to discuss with you.

S.L. Toddard| 11.17.09 @ 4:00PM

"It proves my point, because you have no rebuttal, do you? "

There is nothing to rebut. You have not made a point. That the Barbary War was fought sans declaration proves nothing other than that the Barbary War was fought sans declaration.

"The legal reason we haven't declared war since WWII is because after it, war was made illegal as a means to settle political disputes, through a series of international treaties."

What treaty made war "illegal"?

"Like the Geneva Conventions, of which you are so expert."

So the War in Iraq is illegal?

"The rights and obligations are too numerous to list here. Try delving into Emmerich de Vattel's "The Law of Nations"

Nick, you said that a U.S. Declaration of war carries with it obligations and rights etc. They are obviously not laid out in a book written before the Declaration. Please enumerate some of those legal obligations and rights (that apply only to declared wars and not undeclared wars) or I will just assume you have no idea what you're talking about.

Nick| 11.17.09 @ 4:46PM

Actually, it proves a point you seem unable to comprehend.

Not all uses of the military forces of the United States require a "Congressional Declaration of War" as you wrongly try to insinuate.

The U.S. has declared war a total of 11 times in her history. We have had over 2,000 incidences of using military force.

You can't very well claim Jefferson, and the Congress' that served during the Barbary Wars, didn't know the constitution. So you claim ignorance of history, but are positive GWB acted un-constitionally.

As previously stated, I'm no expert in international treaties. But, I have watched experts on the Geneva Conventions state, "War was made illegal" after WWII, on C-SPAN.

I gave you a book to find the rights and obligations, now you want me to read it to you too?
Do your own research. I already know you don't know what your talking about.

S.L. Toddard| 11.18.09 @ 8:01AM

"Not all uses of the military forces of the United States require a "Congressional Declaration of War" as you wrongly try to insinuate."

No - I agree with you here. And I don't personally think a declaration is necessary every time the gov't uses force. We already know that the constitution did not declare such so as to allow for the president the ability to repel attacks without having to first go to congress. But how do you think the declaration of war is supposed to be used? Does it not seem to *you* that a full-scale war waged against another nation-state, continuously, over a period of many years - you think that sort of war is *not* the sort that should be declared? Why do you believe Congress should NOT have declared war? Do you not recognize that if a declaration was made it would have denied Democrats who green-lighted it plausible deniability?

"I gave you a book to find the rights and obligations, now you want me to read it to you too?"

OK Nick - how about one. Just name me *one* legal obligation or right that is attached to a declared war which is NOT attached to an undeclared war. Actually, I'll give you a choice: you can either admit that you made a statement and found it afterward to be insupportable and withdraw it (in which case I vow to not gloat or even mention it again), or you can name me one legal obligation or right that binds the United States in a declared war but which does NOT bind the United States in an undeclared war. I'm going to refrain from responding to you - as much fun as it is (and it's become far more enjoyable - you're much better than you were when we first started our *guerrilla*) - until you give me an honest and straightforward answer.

S.L. Toddard| 11.18.09 @ 2:43PM

Didn't think so.

Nick| 11.18.09 @ 8:17PM

What didn't you think? Or did you mean in general you don't think.

I think you are confusing declared and undeclared wars with formal (legitimate) and illegitimate wars.

An undeclared war does not make it illegal or illegitamate.

The rights and obligations are listed in the sovereign power's Laws of War. These differ between nations.

Again, try reading Grotius, Blackstone, and de Vattel.

And Congressional resolutions authorizing the use of force are de facto war declarations.

S.L. Toddard| 11.23.09 @ 3:39PM

Name me *one* legal obligation or right that is attached to a declared war which is NOT attached to an undeclared war. Actually, I'll give you a choice: you can either admit that you made a statement and found it afterward to be insupportable and withdraw it (in which case I vow to not gloat or even mention it again), or you can name me one legal obligation or right that binds the United States in a declared war but which does NOT bind the United States in an undeclared war. I'm going to refrain from responding to you - as much fun as it is (and it's become far more enjoyable - you're much better than you were when we first started our *guerrilla*) - until you give me an honest and straightforward answer.

Nick| 11.17.09 @ 11:48AM

Mr. Toddard,

"No, they don't."

Gee, what potent argument! You really knocked me down a peg or two with that, didn't you?

So you, as "The Most Conservative Person in the World" (said as Keith Olbermann-child), think that LIBERALS Stephens, Bryer, Souter, and Ginsburg made a "constitutional" decision? What other decisions have they made that upheld the U.S. Constitution?

And the universally acknowledged conservatives on the court, Messrs. Scalia, Thomas, and Alito acted un-constitutionally in their dissent of Hamdan, did they?

Stop reading the liberal ACS's website and try following the Federalist Society, since you are a "true" conservative. They just had a conference televised on C-SPAN. You should've tuned in, you might have learned something.

S.L. Toddard| 11.17.09 @ 11:59AM

Nick, does the Supreme Court's decision hold as law in the United States, even if one disagrees with it? Or are we only bound by the laws we find agreeable? I can't wait to read your answer.

tailgunner| 11.17.09 @ 12:21PM

You're correct. We should never have questioned the Dred Scott decision that ruled that blacks were *property*.

S.L. Toddard| 11.17.09 @ 12:23PM

That's an odd opinion. It is certainly within our rights - our duties, even - to question the decisions of our courts. Especially now, with the way the court has trended toward empowering the federal government at the expense of the sovereign states and the citizenry. Nevertheless, Dred Scott was *law*.

Nick| 11.17.09 @ 12:46PM

I would like to know the other decisions, by the liberal justices, that upheld the Constitution. Are the black robed prima donnas infallible?

Yes, we are stuck with the Hamdan decision at the moment. That doesn't make it right, moral, or even constitutional. The supremes have violated the Constitution many, many times. Just review the Warren court for proof.

Was SCOTUS correct when they declared all state's abortion laws null and void? How about claiming capital punishment as "cruel and unusual?

Defend Hamdan as "good" law, Toddard, not whether courts are bound by it. But you can't defend it, so you try to deflect and obfuscate.

S.L. Toddard| 11.17.09 @ 12:50PM

"Yes, we are stuck with the Hamdan decision at the moment"

Correct - and as such it is a fact that accused terrorists are entitled to the Geneva Article 3 protections, and that the Bush military commissions are illegal.

I'm glad we agree.

Nick| 11.17.09 @ 1:18PM

1.- President Bush and the Congress rewrote the military commissions law, and it still wasn't good enough for you guys.

2.- What they should've done was take away jurisdiction from SCOTUS and tried Hamdan the way it has been done ever since the country's founding. Which you seem to have a big problem with. Either because you are ignorant of how these things are supposed to work or you don't personally like it and want it changed.

You've called trials by military commissions "show trials." Does this mean the U.S. has had show trials for over two hundred years until good "conservatives" like yourself and Ruth Buzzy Ginsburg showed up?

S.L. Toddard| 11.17.09 @ 1:21PM

Nick, do you think the military tribunals under Bush were the same, procedurally, as all the ones we've had for the last two hundred years?

Nick| 11.17.09 @ 1:42PM

I'm not a lawyer and don't claim to be an expert on the subject. I do know enough about the subject, however, to know you are clueless on the subject and can only cut-n-paste liberal positions that agree with your opinions.

From what I can remember, the military commissions proposed by President Bush were more liberal than commissions of the past.

Again, defend Hamdan as good law, i.e. why do Hamdan and other terrorists deserve trials in federal criminal courts?

Unlawful enemy combatants have always been tried by military tribunals. That is until bubba the pervert violated the precedent.

That is because they are not FELONS. They are WAR CRIMINALS. Criminal courts are not the proper venue for punishing these people. This was figured out by societies millennia ago. Why can't you guys catch up?

S.L. Toddard| 11.17.09 @ 1:50PM

"Criminal courts are not the proper venue for punishing these people."

What is the proper venue to punish the innocent civilians we have captured?

Nick| 11.17.09 @ 2:03PM

I see you can't name any other constitutional decisions your "conservative" justices Ginsburg, Bryer, et al, have made, other than Hamdan.

Innocent civilians have been punished? Are you implying this was intentional and a matter of policy? Or do you demand perfection in our justice systems?

The innocent are falsely accused in the civilian system. Why should it be any different in the military system? You ask for the impossible.

S.L. Toddard| 11.17.09 @ 2:08PM

What is the proper venue to punish the innocent civilians we have captured?

Nick| 11.17.09 @ 2:18PM

Asked and answered.

Unlawful enemy combatants, i.e. terrorists, must be tried by military tribunals, as I already stated.

S.L. Toddard| 11.17.09 @ 2:19PM

"Unlawful enemy combatants, i.e. terrorists, must be tried by military tribunals, as I already stated."

Sorry - I didn't ask where terrorists should be tried. I asked: what is the proper venue to punish the innocent civilians we have captured?

Nick| 11.17.09 @ 2:48PM

Again, asked and answered. And again, who is the one now being obtuse?

The innocent shouldn't be punished. So there is no PROPER VENUE.

S.L. Toddard| 11.17.09 @ 2:57PM

And the innocent should also not be allowed to defend themselves in open court?

Nick| 11.17.09 @ 3:13PM

What does "open court" have to do with anything?

How do you establish innocence? With a trial. All that matters is that it is a FAIR trial.

Again, Hamdan is bad law. Care to defend it or the justices that wrote the decision?

How about this question. If a bill passed by congress and signed into law by the president contradicts a treaty, which one is binding? The U.S. Code or Geneva Conventions?

If UCMJ provisions for military tribunals contravene Common Article 3, which should Americans follow?

S.L. Toddard| 11.17.09 @ 3:23PM

"What does "open court" have to do with anything?"

Open courts provide the innocent accused of a crime with the best protection due to their nature.

"How do you establish innocence? With a trial. All that matters is that it is a FAIR trial."

Alas, the Supreme Court has found that the commissions were NOT fair.

"Again, Hamdan is bad law. Care to defend it or the justices that wrote the decision?"

From what? Your saying it's "bad". Okay: Nuh-uh! It's good!

"How about this question. If a bill passed by congress and signed into law by the president contradicts a treaty, which one is binding? The U.S. Code or Geneva Conventions?"

Depends on the bill, I suppose. The Geneva Conventions have the same standing (Supreme Law of the Land) that the Constitution itself has.

"If UCMJ provisions for military tribunals contravene Common Article 3, which should Americans follow?"

What provisions?

S.L. Toddard| 11.17.09 @ 3:30PM

Hey buddy - I have to take off shortly, so if I fail to respond it's not because I'm ignoring your arguments or anything. I'll try to pick it back up later today.

Have a good day.

Nick| 11.17.09 @ 4:05PM

- Why, because you say so? If the accused rights are respected, a fair trial can be had, whether in open court or in a closed military tribunal.

- No, 5 justices overturned centuries of legal tradition. Four of them were the most leftist on the court.

- I've given repeated reasons why it is bad law, and yes, all you have done to rebuke me is say, "Nuh-uh! It's good!"

- So is any law passed by the Congress. The U.S. Constitution is the supreme law of the land. Any law or treaty that violates it is null and void. But I asked you which one should we follow if a U.S. law contradicts a treaty?

Apparently you side with a treaty ratified only by the senate over a law passed by the whole congress. If the law was passed after the treaty was ratified, has not the law modified the treaty?

- The provisions your five "conservative" justices said Common Article 3 overroad in Hamdan.

tailgunner| 11.17.09 @ 12:36PM

Well, ex parte Quirin et al and Johnson v Eisentrager were *law* also.

Bush had the constitutional authority, since 1942, to hold and try enemy combatants, including US citizens, by military commissions.

Bush also had the constitutional authority, since 1950, to hold said enemy combatants outside the US without the full range of constitutional protections available to US citizens and residents.

But that was unacceptable to the left. It had to be changed...and damn the consequences.

It took a concerted effort by the left to overturn sixty years of Supreme Court precedent, hold interrogators to account for violating rules not in effect at the time and give terrorist mass murderers, the scum of the earth, a real chance to walk away from justice.

S.L. Toddard| 11.17.09 @ 12:48PM

I have already illustrated the difference between the commissions that were approved by Quirin and those that were found unconstitutional by the SC in Hamdan. They were not the same commissions - the former were found constitutional, the latter were not.

Sorry.

Now: What about those suspects captured far from any battlefield? What about *innocent* suspects captured far from any battlefield? Is it your contention that they – innocent civilians – should receive a bullet in the head? Should innocents captured in the nonsensically named “War On Terror” not be able to defend themselves in court?

J.C.Eaton| 11.17.09 @ 1:01PM

Nick, Mr. Justice Jackson(last Justice to be admitted to the Bar without wasting his time in law school) said in a tone of humility; "We are infallible because we are final;we are NOT final because we are infallible. Hence, he admitted that SCOTUS is not any more, ultimately, than an extremely powerful oligarchy, over whom the Executive and Legislature have very limited authority....and you and I have none. Frustrating as the devil but true. Perhaps our only weapon against their brand of tyranny is to just say no! Best,

S.L. Toddard| 11.17.09 @ 1:04PM

"Frustrating as the devil but true. Perhaps our only weapon against their brand of tyranny is to just say no!"

There is another weapon Americans should contemplate: secession.

Nick| 11.17.09 @ 1:21PM

J.C. Eaton,

The Framers gave the Congess the power to limit SCOTUS jurisdiction to keep it from doing what it is doing. We just need a congress willing to do it.

S.L. Toddard| 11.17.09 @ 2:09PM

It's still not enough. Do you think if secession was on the table the SJC would have handed down Roe?

Nick| 11.17.09 @ 2:24PM

I live in the United States, not Fantasyland. The issue of secession was settled 144 years ago. State nullification is another option.

I'm unfamiliar with SJC. In America we call it the Supreme Court.

S.L. Toddard| 11.17.09 @ 2:34PM

Pardon - SJC stands for "Supreme Judicial Court", and it applies to the highest court in MA, not the SC as you have already pointed out.

Nick| 11.17.09 @ 2:54PM

So, the SJC of MA handed down the Roe decision?

I'm confused.

S.L. Toddard| 11.17.09 @ 2:56PM

No - I wrote SJC by mistake. Disregard!

tailgunner| 11.17.09 @ 1:21PM

Military commissions *are* 'courts'. Just because you don't like them doesn't change that.

The structure and procedures of the Bush military commissions were agreed to by Congress.

Congress has the lawful authority to ratify, modify or nullify treaties...including Geneva.

SCOTUS had no legal authority to define Geneva or apply it to a legal situation in defiance of Congress.

I was under the impression that we had already settled, through ex parte Quirin, the fact that enemy combatants did not *have* to be captured on a battlefield in order to be legally held.

And again, you have not presented an example, as I've requested above, that a *known* 'innocent' civilian was knowingly detained and transferred to Gitmo.

Detainees were and are being released, either because they were later found to be innocent, had exhausted their intelligence value or were not worth the trouble of a trial.

In fact the release process is probably more flawed than the detention process.

According to CNSNews.com, some 27 detainees were known to have returned to active terror roles while 47 more were suspected of doing so.

(That was in June '09.)

You wail about detaining the 'innocent' without proof.

We warn about releasing the 'guilty' with abundant proof.

Your attitude toward the GWOT explains much of your unrealistic and cavalier treatment of US efforts to keep this country (and others) safe from terrorist attacks.

As with those now actively whitewashing Hasan's increasingly radical and even treasonous efforts (he pushed for *war crimes* for fellow US soldiers in Afghanistan) you refuse to see Islamic terrorist acts as part of an ongoing war on the West and insist on treating them as isolated crimes.

This may convict a few unlucky perpetrators (those whose bombs failed to detonate or were only wounded)

But those terrorist leaders who plan and plot and finance such acts will remain untouched with their money, their pool of eager would-be martyrs, and their unchecked hatred for those very people who express so much concern for their 'rights'.

S.L. Toddard| 11.17.09 @ 1:27PM

“The structure and procedures of the Bush military commissions were agreed to by Congress.”

…and were found unconstitutional.

“Congress has the lawful authority to ratify, modify or nullify treaties...including Geneva.”

Which they have not done, leaving Geneva as thae law of the land.

“SCOTUS had no legal authority to define Geneva or apply it to a legal situation in defiance of Congress.”

The treaties of the United States are absolutely subject to judicial review. You are simply wrong.

“I was under the impression that we had already settled, through ex parte Quirin, the fact that enemy combatants did not *have* to be captured on a battlefield in order to be legally held.”

I have never asserted that they did.

“And again, you have not presented an example, as I've requested above, that a *known* 'innocent' civilian was knowingly detained and transferred to Gitmo.”

I’m not sure what you are asking. You are not aware that we have imprisoned and then released innocent civilians at Gitmo? Are you kidding?

“Detainees were and are being released, either because they were later found to be innocent, had exhausted their intelligence value or were not worth the trouble of a trial.”

Yes – innocent civilians were abducted and held in a “legal black hole” – which is to say without due process, and with no recourse to challenge their detention, and with no communication to their friends, family or counsel. That is the problem with this blind trust you place in our federal government.

tailgunner| 11.17.09 @ 7:46PM

This is becoming wearisome.

You consistently distort, misunderstand or ignore my postings.

I have repeatedly established that military tribunals were : fair, open, historically and Constitutionally sound.

You have never established that the US knowingly transported a knowingly innocent man to Gitmo, knowing he was innocent.

(Is that enough 'knowinglys' for you? Do you get my point?)

Innocent people are arrested, held and released all the time. But it's almost unheard of that an innocent man was knowingly arrested, outside of a police state, and it's usually not an organized effort but one or more rogue authorities.

Hamdan was an overreach of SCOTUS' authority by their interpretation of Geneva.

Where they properly should have stopped was at where Congress and the President agreed to interpret Geneva under their constitutional ability to make and enforce treaties.

Since the legislative and executive branches had already ruled, and since Bush was acting as Commander in Chief in pursuit of a war authorized and financed by Congress, SCOTUS had no authority and no jurisdiction to hear Hamdan or rule, over Congress' or the President's heads, on the definition of Article 3 of the Geneva Conventions.

The only reason SCOTUS agreed to even hear the case was in keeping with their overall leftist trope that 'we are the world' and the US should hold no advantage over any other group, body or nation.

And since I tire of repeating myself for the benefit of hardheaded children, this is my last post.

You may fire your parting cheap shots as you wish.

J.C.Eaton| 11.17.09 @ 2:20PM

Nick, you are of course correct that Art.III contains authority to make..."such Exceptions,and under such Regulations as the Congress shall make...", with respect to SCOTUS' appellate jurisdiction. My point does no violence to that fact. The power IS very limited and would require enormous political will and should be exercised only with surgical precision. Ultimately though, how many times in 220 yuears has the power been exercised? Never, I'd trow. Power without the will to use it is no power at all...merely an empty speculation. Best,

Nick| 11.17.09 @ 2:31PM

J.C. Eaton,

I appreciate that. I never claimed it would be easy!

That's where you and I come in. It's up to us to create the political will by influencing our own little worlds.

And Pray a lot! God Bless.

S.L. Toddard| 11.17.09 @ 2:47PM

Nick, lemme ask you something: you ever read Bernard Cornwell?

Nick| 11.17.09 @ 2:52PM

Never heard of him.

S.L. Toddard| 11.17.09 @ 2:59PM

Not important. Or relevant, really.

J.C.Eaton| 11.17.09 @ 2:43PM

Nick...Back at you. Best,

Richard Baker| 11.17.09 @ 6:24PM

I see that 'dard is remaining true to his creed of being irrelevant and comedic.

KyMouse| 11.18.09 @ 10:17AM

My late uncle was a JAG officer in the Pacific at the end of WWII. He brought back a scrapbook filled with photos of allied soldiers who had wide scars across the backs of their necks -- "souvenirs" of partial decapitation by their Japanese captors. He was against war crimes trials from day one, insisting that the Japanese officers and men who had committed such atrocities should simply be executed. It was clear who they were, he reasoned, and their punishment should have been swift and sure.

I would love to know his reaction to trying terrorists in American civilian courts. The thought of Muhammad's being acquitted, or the trial's ending in a hung jury, is a nightmare. The expense, the security that will be required, the media circus -- it's all a nightmare.

And doesn't it set the precedent for every other terrorist we capture? Won't they all insist that they have the right to civilian trials? The day may come, very soon, when all we have are such trials, because our enemies will have even more proof that we are weak and foolish -- and they'll come after us not as single spies, but in battalions.

Rmm| 11.20.09 @ 12:19AM

Leave it to the lawyers to yuck things up. Given the opportunity to get this right, the Prez and the AG seem to think that a foreign combatant has the same legal rights as a US citizen. Furthermore they should be tried in a civilian venue. How f**^^ng crazy is this. Another payoff to their brethren in the bar? Its a real shame that for the price of a single cap in the head, this conversation would not be happening.

Brado Williams| 4.14.10 @ 2:02PM

The following is by HoldenBeachBum from the Sodahead.com blog:

THIS is why Khalid Sheikh Mohammed is being tried in Civilian Court.

Sailing Shoes asked me to write a blog a while back regarding Khalid Sheikh Mohammed being brought to New York and tried in a Criminal Court as opposed to a Military Court or Tribunal. I was at first, like many, outraged that Holder could even consider such a thing! Especially bringing the sewer-rat to New York where the very act he helped mastermind was committed.

So, I did some reading on this situation thinking I could surely prove Holder out to be the ass he really is. Unfortunately quite the opposite!

The United States has made use of military tribunals or commissions, rather than rely on a court-martial, within the military justice system, during times of declared war or rebellion. General George Washington used military tribunals during the American Revolution. Commissions were also used by General (and later President) Andrew Jackson during the War of 1812 to try a British spy. Commissions, labeled "Councils of War," were also used in the Mexican-American War.

The Union used military tribunals during and in the immediate aftermath of the American Civil War. Military tribunals were used to try Native Americans who fought the United States during the Indian Wars which occurred during the Civil War; the thirty-eight people who were executed after the Dakota War of 1862 were sentenced by a military tribunal. The so-called Lincoln conspirators were also tried by military commission in the spring and summer of 1865. The most prominent civilians tried in this way were Democratic politicians Clement L. Vallandigham, Lambdin P. Milligan, and Benjamin Gwynn Harris.
All were convicted, and Harris was expelled from the Congress as a result. It must be noted that all of these tribunals were concluded prior to the Supreme Court's decision in Milligan.

The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to the common law, which governs criminal justice in the United States, and provides for trial by jury, the presumption of innocence, forbids secret evidence, and provides for public proceedings. Critics of the Civil War military tribunals charged that they had become a political weapon, for which the accused had no legal recourse to the regularly constituted courts, and no recourse whatsoever except through an appeal to the President. The U. S. Supreme Court agreed, and unanimously ruled that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional, with its decision in Ex Parte Milligan, 71 U.S. 2 (1866).

Military commissions were also used in the Philippines in the aftermath of the Spanish-American War; as these were used in an active war zone as an expedient of war, they did not fall afoul of Milligan. President Franklin D. Roosevelt ordered military tribunals for eight German prisoners accused of planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin. All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released and deported to the American Zone of occupied Germany.

Ok, so enough history. I am hoping you paid particular attention to where the Supreme Court ruled unanimously that military tribunals used to try civilians in any jurisdiction where civil courts were functioning were unconstitutional. But Khalid Sheikh Mohammed isn't a civilian! He's a terrorist! I agree....he is most certainly a terrorist. But neither Mohammed or any of the other terrorists connected to 911 declared WAR on the United States. Neither did Iraq. Notice that every military tribunal noted above involves a WAR. Thus, to be tried by a military tribunal, the crime must have been committed in wartime.

Let's say Saddam Hussein had declared war on the United States by ordering his military (or even Iraqi volunteers) to fly their planes into the World Trade Center. That is an act of war, and if any of the pilots would have survived they would be tried by a military tribunal. So would anyone else involved in any attack against the US from Iraq, including Saddam Hussein.

But the 911 terrorists were part of Al Queda, a radical Islamic group. They didn't declare war on the US so, thus the reason Mohammed will be tried in a Civil Court.

Timothy McVeigh was a United States Army veteran and security guard who was convicted of bombing the Alfred P. Murrah Building in Oklahoma City on April 19, 1995. He considered the United States Government to be in tyrrany. But no declaration of war here either. Are you starting to get the point?

So, it seems that for once, the Attorney General made the correct call regarding the trial of Khalid Sheikh Mohammed. Whether we like it or not.

Please leave me comments. I am not a historian and hope I have put this together correctly.

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