Emptying Gitmo

   Khalid Sheik Muhammed and Eric Holder have one thing in common - they both want a show trial. Hopefully, the judge will not.

 What does KSM want?  In 2007 when he confessed to masterminding the 9/11 attacks and many other atrocities, he boasted of a plan to hijack another plane, and make a speech at an American airport after killing all of the male passengers.  Holder has given him his stage, and as a bonus the opportunity to expose American intelligence sources and cause a second round of pain to the families of the victims.  

What does Holder want? There are two lines of thought:

- The benign one - claimed by Holder and his defenders on the Left: Demonstrate the fairness and robustness of our judicial system. But this is belied by the fact that other Gitmo prisoners will be tried by military tribunals or held indefinitely, that Obama has assured the public that KSM will be convicted and executed, and that Holder has said that under any circumstance KSM will not be released.  Justice?  

- And the cynical one:  Demonstrate for the world that the Obama administration is purging the evil ways of the Bush administration in terms of torture and illegal detention. Holder's controversial decision in August to reopen an investigation of CIA interrogators, the April release of a Justice Department memo critical of "enhanced interrogation techniques", and Holder's history - which includes a recommendation that President Clinton pardon unrepentant Puerto Rican terrorists - provide a clear picture.  His claim that he had not discussed the decision directly with President Obama is either incredible or alarming. (With the resignation of Obama's chief legal advisor on the delinquent closing of Gitmo, it is possible that the president is keeping a "deniability" distance.)

The reality of what may happen:

- In the trial itself - In a criminal trial the defendant is entitled to a presumption of innocence (have Obama and Holder poisoned the jury pool?; can there be an impartial jury in New York?), the right to cross-examine witnesses (and expose them), to have access to all of the evidence, and to make extensive opening and closing statements. One can never be sure of 12 jurors - see OJ's "trial of the century". Judges can go off the rails - see the Scottish judge who released the convicted Lockerbie bomber. And in the end, the legal truism that "hard cases make bad law" reflects the risk that stretching criminal law to fit a preordained military outcome could set bad precedents.

-  Beyond the trial - Senator Lindsay Graham points out that those capturing terrorists will need to read the prisoners their Miranda rights (which were not applied in this case), thus allowing lawyers and limiting interrogation benefits. It is also likely that some sources of intelligence will be exposed in the trial, and the incentive for informants to work with us will be severely compromised. (If Holder really did not consult with Obama, he may not be concerned about these things.)   

   And what will we do with the other 200 misfits?

  The Geneva Conventions are clear that to be a lawful combatant (and thus be protected by the Conventions) a person must (a) be commanded by a person responsible for his subordinates; (b) have a fixed distinctive sign (such as a uniform) recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war. Absent that, they are entitled to humane treatment, but are subject to trial as war criminals or indefinite detention.

  Many have been released to other countries, with the potential that as many as 60  (mostly Yemeni's) have returned to the battlefield.

  In 2006 Congress revised the laws covering military tribunals to meet legal and ideological objections to the Bush approach, and Holder has assigned the bombers of the USS Cole to that path.   

  Obama and Holder have not signaled their intent with the rest of the 200, except for Holder's explanation that the KSM group was in a civilian court because most of their victims were civilians. (If a terrorist wants more rights, kill civilians.)  There may be a politically-motivated pragmatic approach that the forum will be chosen to prevent any prisoners from actually being released, with a handful held indefinitely.  But law professor Obama does not distinguish between the purpose of criminal law (punish wrongdoers) and the purposes of military incarceration (prevent future damage and gather intelligence.)  

   In sum, with trials and appeals this will be a long and ugly process, designed by both KSM and the Obama administration to show the world the dark side of America. Two thirds of the public disagree with the decision - even before the $75 million price tag was disclosed. 2012 cannot come soon enough.

   -----  

 This week's You Tube is a snippet of Senate testimony, in which Lindsay Graham  demonstrates the inadequacy of Eric Holder's thinking.

bill bowen - 11/27/2009

Favorites: 
    1. Mitt Romney's "Free and Strong America" PAC web site. 
    2. Tom Campbell's California governor campaign web site

Comments

[william McCormick]

Isn't it interesting that the debate on Healthcare begins today and the President will make his televised decision tomorrow night on Afghanistan? The smokescreens of this administration make me think I'm watching a David Copperfield special.
And then there is the interesting story of the party crashers at the White House. If any one of us entered the White House without permission I believe we would be in jail. So if terrorists or assassins want to get the President all they have to do is dress up? It is interesting, it leads you to think that an Arab bomber dressed as an Indian guest might have passed right through. A Pakistan terrorist might have gotten the President, the Indian Prime Minister and the VP all at once. Would that make Pelosi President? (I forget my line of succession history. ) The Secret Service must be very embarrassed but why are the people who did this not in jail?

[william mccormick]

Why not go against the wishes of the majority in America? This seems to be the preferred path to change for this President. After all, liberals by their very nature are pretty much anti everything the other 75% of America believes in. So when they get their chance to embarrass other political leaders they do so without consideration of anything but their agenda. I expect to see this behavior in everything they do until the majority rules once again.

The rush to close Gitmo at the height of their emotional power surge has been greeted by Americans holding firm in their resolve to keep the terrorists away from their hometowns. Holder may not foresee any problems but Americans witnessed the OJ debacle and they are not so trusting of America's judges and juries to get it right.

The complete absence of defense of Sarah Palin by the Women's group's in America is another example of the hypocracy of the Liberals. Her popularity continues to dim the accceptance of liberal attacks but it does not slow their continuance.

From Terrorists rights to Healthcare to labor union favortism to immigrants to environment to fiscal responsibility the liberals push America against the grain of public opinion. The question is how far can they move the bar before they are stopped by the independents?