The Obama administration is fooling itself if it thinks the arguments against military tribunals have won the day.
President Obama’s supporters are making much of how the Bush administration treated 2001 shoe-bomber Richard Reid the same way that the Flight 253 Christmas bomber has been treated: arrest, indictment, and trial in civilian criminal court. In doing so they in fact continue to perpetuate a deep division that dates back to the first days after September 11, 2001, between law enforcement and war strategies.
While plans for military tribunals were established (by Executive Order dated Nov. 13, 2001), a few weeks before Reid was arrested, former U.S. attorney Mike Sullivan, who prosecuted Reid in federal court in Boston, said that how to use tribunals and particular arrangements for them had not been settled. Sullivan said he is “confident” that had Reid landed at Logan Airport in Dec. 2003, there would have been discussion as to where Reid would be sent.
On November 28, 2001, Sen. Patrick Leahy chaired a Senate Judiciary Committee hearing that examined, among other early Bush administration practices, the order to establish military commissions. In his introductory statement Sen. Leahy said:
The President’s Military Order of November 13 paves an overly broad path to the use of military commissions to try those suspected of a variety of activities. It is a marked departure from existing practices and raises a wide range of legal and constitutional questions and international implications….
As written, the Military Order does not incorporate basic notions of fairness and due process that are hallmarks of American justice. It does not specify a standard of guilt for convicting suspected terrorists.
It decrees that convictions will not be subject to judicial review, a determination that appears to directly conflict with our international commitments. It allows the Government to tailor rules to fit its proof against individual suspects.”
The Vermont Democrat’s criticism went well beyond military commissions:
Today and in the days ahead we will have an opportunity to explore the Executive action to charter military tribunals that bypass our civilian justice system, to permit eavesdropping on attorney-client communications without court orders, and the circumstances under which hundreds are being detained without public explanation. Whether any or all of these ideas are popular or unpopular at the moment, as an oversight committee we accept our duty to examine them.
The first military tribunal began proceedings (pdf) in November 2004 — three years after the original Presidential Executive Order was issued — and were promptly interrupted by a federal judge who ruled one of the defendants not properly chargeable in a military court. It was not until July 21, 2008 that a military tribunal was allowed to proceed. Several Supreme Court decisions and passage of two federal statutes, The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, delayed matters. (Congress further amended military tribunal procedure, in ways that expanded defendants’ rights, in the Military Commissions Act of 2009.)
Reid was arrested Dec. 22, 2001, after his flight landed, and was indicted on January 16, 2002. The conflict between al-Qaeda and America was clearly framed in his Jan. 20, 2003 court plea sentencing hearing when Richard Reid made clear that he was at war with America and the judge rejected same (emphases mine):
JUDGE WILLIAM YOUNG: I didn’t hear the last. I admit my actions and then what did you say?
REID: I further admit my allegiance to Osama bin Laden, to Islam, and to the religion of Allah. With regards to what you said about killing innocent people, I will say one thing. Your government has killed 2 million children in Iraq. If you want to think about something, against 2 million, I don’t see no comparison…..
So, for this reason, I think I ought not apologize for my actions. I am at war with your country. I’m at war with them not for personal reasons but because they have murdered more than, so many children and they have oppressed my religion and they have oppressed people for no reason except that they say we believe in Allah….
As far as the sentence is concerned, it’s in your hand. Only really it is not even in your hand. It’s in Allah’s hand. I put my trust in Allah totally and I know that he will give victory to his religion. And he will give victory to those who believe and he will destroy those who wish to oppress the people because they believe in Allah.
So you can judge and I leave you to judge. And I don’t mind. This is all I have to say. And I bear witness to Muhammad this is Allah’s message.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
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It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
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