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Tuesday, June 17, 2008

Beldar on Yoo on Boumediene; and related thoughts on Obama's preference to rely on criminal prosecutions to fight international terrorists

I respectfully concur, without reservation, with Prof. John Yoo's observations on Boumediene.


Sen. Barack Obama, meanwhile, has put himself squarely back into a 1993-style, early-Clinton Administration mode of considering our conflict with radical Islamic fundamentalists as being just another exercise in crime-fighting. Crank up the grand juries. Maybe we ought to hire some extra lawyers, whot whot?

War? What war? Why, we'll litigate those barbaric bastards until they cry "Uncle!" That'll show 'em.

Our enemies are at war with us. They want to hack off our heads and show the video on the internet; failing that, they'll be content with blowing us to smithereens by the tens of thousands. And for our part, in response? Well, I believe Sen. Obama is deadly serious in threatening our enemies with potential black marks on their respective permanent records. Saith the Obamasiah:

And, you know, let's take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, "Look, this is how the United States treats Muslims."

So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.

I pray tonight for the continued vigilance of the host of angels who, together, are struggling to keep Andrew McCarthy's head from exploding. If you don't already know what the co-lead prosecutor from Obama's "model case" has to say about Boumediene in particular, and using the civilian justice system to fight terrorism in general, start with this essay; then this; then read a review or three of his new book, or better still, the book itself, which is aptly titled (in description of people like the junior senator from Illinois): Willful Blindness: Memoir of the Jihad. Suffice it to say, McCarthy's first-hand experience proves Obama to be a spectacular, mind-boggling fool on this entire subject.

Obama is already living in a fantasy world, one in which cold-hearted dictators will swoon in his presence like the hyperventilating fans at his rallies. But at this rate, I expect Obama to suggest, come October in one of the presidential debates, that if we'll just modify some of our spotlights to project a giant bat-image against the clouds, Commissioner Gordon will be able to mop up what's left of the war in Afghanistan within a fortnight. 

Ask yourself this: Can you imagine a serious political candidate for any office saying such a thing in October 2001? Can you imagine a Supreme Court so intruding itself into military and national security affairs then?

But these idiots have completely forgotten 9/11. They've willed it down the memory hole, because they're so damned focused on condemning George W. Bush, who of course is the preeminent source of evil in the world today.

I don't question their patriotism. I question their sanity.


UPDATE (Tue Jun 17 @ 4:25pm): Here's Mr. McCarthy's interim reaction to Obama's comments, as well as to a remarkably silly George Will column that's partly sympathetic to the Boumediene majority opinion.

Posted by Beldar at 03:00 AM in 2008 Election, Global War on Terror, Obama, Politics (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Beldar on Yoo on Boumediene; and related thoughts on Obama's preference to rely on criminal prosecutions to fight international terrorists and sent a trackback ping are listed here:

» The general electorate from Sister Toldjah

Tracked on Jun 17, 2008 8:59:32 AM

» The important point that Kennedy v. Louisiana proves about Boumediene v. Bush from BeldarBlog

Tracked on Jul 6, 2008 6:12:53 PM


(1) A.W. made the following comment | Jun 17, 2008 9:09:36 AM | Permalink

Here's hoping McCain will refuse to go along with this madness. Its one thing for McCain to say it is madness, but its another thing entirely for him to say no to the Supreme Court.

They have gotten too big for their britches. Its time for another correction a-la the switch in time. They have the right to interpret the constitution as written, not to write the constitution as they prefer it.

(2) stan made the following comment | Jun 17, 2008 9:24:56 AM | Permalink

I question both, but their patriotism even more than their sanity. Ayers and Dohrn are not patriots. Mayor Daley and a lot of other Democrats consider them to be mainstream liberals in the community.

Obama is very comfortable with Ayers and Dohrn.

(3) Neo made the following comment | Jun 17, 2008 9:49:47 AM | Permalink

I question their sanity.

There is one other possibility ..
George Bush has waged such a successful campaign on the war on terror that civilians can now begin to dream in the terms that were the realm of the day on 10-Sept-2001.

Think Obama would ever admit to that ? .. me neither.
They must be insane.

(4) Mark L made the following comment | Jun 17, 2008 10:43:26 AM | Permalink

The real problem is that Constitutionally, the major check on the Judciary is the Legislative, not the Executive Branch. Congress has the power to limit the courts, not the President. Congress has the power to impeach judges and justices, not the President.

Yet Congress is willing to abdicate its role as monitor of the Judiciary because the Judiciary takes the heat off Congress. And this is not a problem limited to Democrats. Republicans won't rein is runaway judges either.

The solution is to replace Representatives and Senators until they live up to their responsibilities. Unfortunately, judicial activism is so weakly tied to Congress that the average voter gives his representative and senator a pass on the issue.

(5) Carol Herman made the following comment | Jun 17, 2008 10:55:09 AM | Permalink

Actually, the best way to look at things is to look at this set up as a very weird mating rite.

Sort'a like tattoos, they make no sense if you're not turned on by them. On the other hand, there's this reality about democracies (and republics). They exist to give people choices.

So, there ya go. Obama is giving you one that's very popular far left of center.

Among academicians, right now, you'd hear the orgasmic sounds. And, ya know what? It's not for you to understand!

Obama is giving the left exactly what it wants! Which should make things easier for McCain.

And, then you can add in the reality that professional politicians, in the GOP, saw their fabric shrink. Saw themselves sliding into the minority in Congress; and they panicked. SO they did not pick one of their own "favorite sons."

This has happened in the past. When the GOP manages to get into the White House, they do it on the coat tails of Abraham Lincoln, or Eisenhower. Two totally different presidencies! But just to show you that there is a "range."

And, then, when you want to see failure, you go back to 1948. And, you watch how a bad candidate, a previous loser, Dewey, lost to Truman. When, yes, you could have had General Douglas MacArthur. (Since Truman didn't want the MacArthur threat in 1952; when he was "gualified" to run, again, you'll see that he fired MacArthur. Proving what a stinker Truman really was.) But you can't cry over spilt milk.

If Obama wins? He is touching something within the electorate that will garner him votes. Of course, for the GOP to lose, here, they'd have had to pick one of their own "favorite sons." What a huckleberry!

Hillary, by the way, is out. She was taken out by democrats; a lot more professional at this than say the electorate at large.

Well, the same fate once befell McCain. So whose to say what the future holds.

If, however, it holds Obama, you'll be able to bowl me over with a feather. Which is not an orgasmic tickle, fer shur.

By the way, there are candidates out there that Obama can match. He can match McGovern. He can match Mondale. And, he can match Dukakis. Where, in each and every case, Pauline Kael said she "didn't understand." Because all her friends voted for them. And, as often as they could.

SHows ya though, the mainstream, and the banks never see eye to eye. There's way too much stuff in the middle.

Successful politicians, who depend on more than just local voters, already know about "dressing up for the part."

Even if you think Obama looks and sounds "funny" ... he is tapping into a segment of the population who've embraced stuff you've found embarrassing. Like Code Pink.

Politics is studied because in some outcomes, something that looks healthy, dies on the vine.

If Obama isn't elected in November, however, the screams of racism will become as high as the nonsense now going on in Canada; facing Mark Steyn.

In other words? There's laughter in the wings, ahead, no matter what. Please don't cry.

(6) Mike Thomas made the following comment | Jun 17, 2008 12:41:41 PM | Permalink

And I respectfully concur with Glenn Greenwald’s eviceration of Yoo’s “observations.”
This point in particular echoes the one I’ve been trying unsuccessfully to make here recently:

The other deeply misleading claim in Yoo's Op-Ed is even more transparent. He characterizes the Court's decision as "grant[ing] captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court." What minimally self-respecting law professor would be willing to make this claim with a straight face?
The whole point of the habeas corpus right is that without a meaningful hearing, we don't know if the individuals our Government is imprisoning are really "al Qaeda terrorists" or something else. That ought to be too basic even to require pointing out.

I was glad to see Beldar acknowledge in the previous thread that “I'm not arguing, and have never argued, that everyone at Gitmo is necessarily guilty.”
But that has not prevented him from repeatedly referring to the detainees collectively as “terrorists” and “killers”.
If we can acknowledge that mistakes have been made, then it would seem that we have a moral imperative to make sure that they are corrected as soon as possible. Habeas Corpus is the time-honored method by which we have always tried to correct for these kinds of mistakes.

And for a further antidote, I would direct your attention to George F. Will’s column today. Another advanced case of BDS, I presume?

(7) Beldar made the following comment | Jun 17, 2008 1:50:57 PM | Permalink

Mike: My first post about Boumediene was devoted to the same point Greenwald says "no self-respecting law professor" would make. But neither you not Greenwald bother to say how or why Prof. Yoo or I am wrong. You call that "eviscerating"? I call that the weakest of weak sauce, akin to playground name-calling. (And that's entirely typical of the Sock Puppet.)

You and Greenwald fault me and Yoo for overbreadth, for assuming everyone at Gitmo is guilty. But you make the opposite mistake, with Greenwald actually arguing that the "huge bulk" of detainees are wholly innocent and entirely random victims. His proof? Newspaper articles of people who say, "Hey, I was completely innocent!" What kind of stooge is he, to swallow all that so uncritically, and then to generalize from three or four such "examples" to the entire detainee population?

I'll be blunt: Greenwald is an anti-American, pro-terrorist stooge. Are you with him in that, Mike?

And what Yoo and I are saying, will say, and have said all along is that the process Congress and the president signed into law should be allowed to do its job to determine which of them is guilty of what. It's a two-step process, with the CSRTs akin to a probable cause hearing and then the military commission trials as a final determination (subject to appeal to an Article III court, for pete's sake, the D.C. Circuit). Permitting the system to work would be by far the fastest way to determine whether "mistakes have been made," but not one — not one! — of the detainees who joined in Boumediene have even bothered to take advantage of their review rights in the system from the determination of their CSRT hearings! The continuing delay — Kennedy just piled at least two more years onto everything that's gone before — is the fault of the detainees and the SCOTUS.

Habeas corpus is emphatically not the "time-honored" way that we test for "mistakes" among those captured abroad, allegedly committing war crimes, during time of war. Never. Ever. Not once. Justice Kennedy admits it's entirely unprecedented.

Is there some part of these facts that you simply cannot grasp? If you can grasp them, why do you continue ignoring them?

We've had something very close to this conversation before, Mike, when you were insisting that Gitmo was all about locking people up without ever giving them any sort of trial. Quit trying to fool people. I can sense some intelligence on the other side of that keyboard. I appeal to it to stop your hyper-partisan self from making such obviously bogus statements. No self-respecting person would claim, for example, that habeas corpus has ever been used to test the liberty rights of war criminals.

As for Will's column, he's of a mixed mind on Boumediene, and to the extent he fails to recognize its actual scope, he's simply wrong. He, like McCain, is quite often a grumpy old man; he's not a lawyer, and although he's very bright, I doubt he's sat still long enough to actually comprehend what this decision actually means and does.

(8) Paul Zrimsek made the following comment | Jun 17, 2008 2:16:46 PM | Permalink

As Mike Thomas mulls his response, I think he should bear in mind that he'd previously written this:

You say "A habeas corpus petition is indeed a "get out of jail free" card", so I looked up the success rate for such petitions today. A whopping 2 percent. And I suspect that will be even LOWER during actual combat situations.

(9) Scott Jacobs made the following comment | Jun 17, 2008 2:57:46 PM | Permalink

I dunno... this could be some sneaky plan to set them all free with one fell swoop...

I mean, they are against cruel and unusual punishment, right?

What would *YOU* call extended exposure to civillian courts? :)

(10) Gregory Koster made the following comment | Jun 17, 2008 3:09:30 PM | Permalink

Dear Mr. Dyer: Mr. Yoo is dead wrong when he writes:

"Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security."

If he means "reversing Boumediene" that's just bunk. The justices over 70 are all on the left side of the court except Scalia (and in two months, Breyer.) A President McCain could nominate Roberts/Alito clones, but how is he going to get them through a Democratic Senate? The short and medium term drift of the Supreme Court, is going to be to the left. That drift could turn into a rush if Scalia kicks the bucket.

Your shot at Will is unworthy of you. I'm not a lawyer either, and I think the Boumediene decision was awful. Does my lay status mean that Boumadiene was right?

Pass on: Mr. Thomas has gotten his wish. What happens next:

a) The district courts growl "lock 'em all up." Mr. Thomas can then roar that the district judges are all Bush stooges, giving the rest of us some hearty laughs.

b) the district courts throw keys to the prisoners by the basketful, and they scatter to the winds. Mr. Thomas crows three times, just as the cocks did to Peter when he was asked about his association with Jesus. Then it's a question of keeping track of the released prisoners and tracking the damage they do to Americans and allies. The releasees will likely kill Americans and allies. Perhaps President McCain can invite the widows and children to one of his State of the Union messages, and describe how the releasees killed them, then stare at Kennedy in a long, loud silence. Hmmm. I seem to be injecting myself with fantasy here and better haul up. The point is, Mr. Thomas has gotten what he wanted, and will now be able to see the condequences. Not face them. Facing consequences does not exist on the left.

I still maintain that this case is an example of an underlying tension: how are we to conduct this conflict? What would you have said if I had told you in February 2003 that five years on, the US would still be in Iraq, taking deaths every week? Granted, the situation appears to be improving, and steadily. Suppose it improves to the point that by 2010 there have been no American deaths in months and we can withdraw completely, leaving only a security force to protect the embassy. Is this victory? Almost surely not; Afghanistan and Pakistan continue to bubble. Obama has said we need to focus attention on these two countries, but who believes him? That McCain would attend diligently, I have no doubt. But he's got to bring Congress and the country along with him, which leads us back to the question: what is victory in this conflict? When we take prisoners, how long do we hold them? Trying them presents problems of releasing national security information. Battlefield interrogations, followed by execution? What's that going to do to our armed services?

These questions have been visible since 2004. Geo W. and his crew haven't been able to answer them, but seemingly have been like Micawber, hoping "something would turn up." Five years of these short term plays have made the task of the next President much harder, should he take national security seriously. If he does not, and I doubt if Obama does today, then a scramble to leave is very easy. If he takes national security seriously later on, look for a replay of Carter, with the sitting President distrusted by a sizable bloc within his party, and not able to reach across the aisle. This could be rectified by yelling that those who oppose him are racists, but that card will get stale fast. Frank Rich will not be amused to be denounced as a bigot, though the rest of us will get at least a snicker out of it.

We better get all the snickers we can out of anything, because the overall situation in foreign affairs seems grim. Grimmer than anything since Carter.

Sincerely yours,
Gregory Koster

(11) DRJ made the following comment | Jun 17, 2008 3:18:29 PM | Permalink

As a practical matter, I wonder if this decision means the US military will use more weaponized drones in ways and locations that won't leave captives to worry about. If so, it will be harder and take longer to gain intelligence and, of course, to win.

(12) A.W. made the following comment | Jun 17, 2008 4:40:52 PM | Permalink


You wrote:

> The whole point of the habeas corpus right is that without a meaningful hearing, we don't know if the individuals our Government is imprisoning are really "al Qaeda terrorists" or something else. That ought to be too basic even to require pointing out.

The same can be said for any prisoner of war or detainee in any war. “I’m not a German soldier, I was just wearing the uniform!” And don’t say that the uniforms used in other wars allow us to be certain enough. There are two basic flaws in that argument. 1) it rewards dishonorable conduct in war. 2) that isn’t even true of all wars. For instance, in the Civil War, the grey uniforms were for officers mostly. In some cases, the confederates also wore the blue, which had tragic results at the battle of bull run.

> If we can acknowledge that mistakes have been made, then it would seem that we have a moral imperative to make sure that they are corrected as soon as possible. Habeas Corpus is the time-honored method by which we have always tried to correct for these kinds of mistakes.

No, in war, the only thing that prevents mistakes is THE MORAL IMPERATIVE.

The bottom line is this: the constitution is written primarily for the protection of the people from its government, not to protect the rest of the world from us. If we have done injustice to foreigners living in foreign countries, the appeal is not to constitution, but to the people.

Here’s the other thing liberals don’t get. The entire idea of taking prisoners of war (as distinguished from geneva-conention-protected prisoners of war) is that it is a humane substitute for just killing them. If we are allowed to kill them on the battlefield arbitrarily, then we can take them prisoner with equal arbitrariness. To say the law of war has anything else to say on the subject is to be willfully ignorant of literally thousands of years of legal history.

But since the arbitrariness of holding prisoners is breaking down, we can suspect that our soldiers might revert to arbitrariness in killing to make sure they don’t have to face the same terrorists on the field of battle. I mean, seriously, if you were a soldier and you caught Osama bin Laden tomorrow, would you turn him over to authorities and hope some idiot liberal court won’t turn him loose? Or do you just say f--- it and shoot him on the spot? Yeah, I know what you would say in your smug moral superiority, but I also know what I hope that soldier will say, too: “he was shot while trying to escape.”

I am angry beyond words at this “Supreme” Court.

(13) steve sturm made the following comment | Jun 17, 2008 4:50:25 PM | Permalink

Where to start, where to start...

There is nothing wrong with using the criminal justice system to prosecute terrorists (foreign or otherwise) caught in the United States. While there's certainly a difference in the outcome, the terrorist who flies a plane into the WTC is at heart the same as a terrorist who tries to blow up the WTC and is at heart the same as a terrorist who shoots people in and around Washington DC. We have laws addressing these offenses, we have prisons into which to stick the guilty (does the Blind Sheik serving a life sentence count only as a 'black mark on his permanent record'?) and we don't need to, for example, send the DC sniper off to Guantanamo Bay and hold him without trial for five years in order to hold him responsible for his crimes.

And I don't agree with McCarthy (and you) in his indictment of the criminal justice system. He was able to stick those responsible for WTC93 into jail; we didn't need secret military commissions to prosecute those responsible, just as prosecutors were able to convict Timothy McVeigh of basically the same crime as those who tried to blow up the WTC. I fail to see how we'd be any safer had McCarthy shipped the culprits off to Cuba rather than sending them to maximum security prison. Had any of the 9/11 hijackers survived, I am confident that the Andy McCarthys would have been able to put them in jail. And if we need to tweak the system in order to modernize it in light of today's reality, we should do so, we don't need to junk it in favor of something entirely new (and unproven).

If anything, responsibility for what happened in the 90s and on 9/11 lies less in any shortcomings of the criminal justice system and more with our failure to (1) recognize the terrorist problem, (2) make changes in intelligence gathering and sharing, (3) more aggressively use our military and other weapons to go after those supporting terrorists.

I do think Obama is wrong thinking our not giving 'Muslims' a trial affects how 'they' think of us. They don't get trials (at least not by the standard we'd recognize) in their home countries, so why should they be incensed because we haven't given them trials? And even if we rolled out a red carpet, they'd still be mad, they'd just have to come up with something else to drive their recruitment. Also keep in mind that they were recruiting just fine before Bush, it wasn't as if they were struggling and Bush singlehandedly gave them the push they needed to jump start their marketing.

And I need to state the obvious, if for no other reason than to preempt those who will otherwise accuse me of missing the obvious: using the criminal justice system can't be the only way we go after terrorists and we can't limit our intelligence gathering to methods appropriate for passing judicial scrutiny. Having said that, I do admit to qualms about dragging people off the street and sending them to detention because someone somewhere thinks they might be trying to do something. I don't buy into the reliability of the Minority Report-ish programs, and I don't have that much faith that those who choose to go into government work aren't going to screw up big time. If I were ever picked up, I sure as heck would want an opportunity to argue my case in court, just as I am sure you would want to; that makes it a bit hard (but not impossible) for me to support preemptive action against wanna be terrorists.

And finally Beldar, if you want to blast Supreme Court justices as idiots and power-hungry and , that's fine, go ahead, but let's remember that they'll still be idiots when they, in the future, rule in a way you approve.

Time to go have dinner.

(14) DRJ made the following comment | Jun 17, 2008 4:55:14 PM | Permalink

steve sturm,

Even a stopped clock is right twice a day.

(15) Beldar made the following comment | Jun 17, 2008 5:13:39 PM | Permalink

Steve, I've excoriated this decision and the Justice who penned it. But I haven't used the words you're putting in my mouth.

The Blind Sheik has continued doing significant damage to U.S. national security while in prison. He ought to be in an unmarked grave. (I don't much care whether it's with a firing squad's bullets in his torso, a hangman's noose around his neck, or a needle puncture in his arm.) Again, however, read the details of what his prosecutor says about the suitability of civilian courts to try cases just like his. (McCarthy is the leading exponent of creating special national security courts to handle even purely domestic terrorist incidents.) Until then, you're guilty of the same glib assumption that Obama is making — i.e., that his prosecution was an unqualified success story. It was, at best, a very qualified and limited success, and then only with respect to a fraction of the terrorists who were involved in the 1993 WTC bombing.

(16) Beldar made the following comment | Jun 17, 2008 5:24:53 PM | Permalink

Mr. Koster: As it happens, in 2003, I was predicting a "long, hard slog" in Iraq, with continued casualties as long as we have any significant occupation force in Iraq — just as was Sec. Def. Rumsfield (the originator of the phrase).

You're certainly right that well-educated laymen ought to be able to grasp what's wrong with Boumediene, and many do. Many lawyers don't. George Will should indeed know better, but he's gone astray to some extent on this issue, to the extent he has any clear position.

A.W. and DRJ: I think that without regard to anything the Supreme Court does or doesn't say, the vast majority of our troops will continue acting responsibly and, subject to their particular circumstances, humanely. It's just too bad — but nothing new, unfortunately — that their government back home so often falls short of demonstrating the same bravery and commitment to mission that they consistently display.

(17) Mike Thomas made the following comment | Jun 17, 2008 5:29:15 PM | Permalink

“Greenwald is an anti-American, pro-terrorist stooge”?
Talk about “playground name-calling.” Come on, Beldar. Please note that I restrained myself from telling you exactly what I think of Professor Yoo.
As for how many detainees may be innocent, my position is that even if there is just one, it is one too many.
Secondly, with regards to allowing the CSRTs to “do its job”, the point, as Justice Kennedy makes clear, is that they are not deemed adequate to satisfy the requirements of our Constitution, which states that habeas corpus is fundamental to our system of justice and can only be suspended in times of rebellion or invasion.
Kennedy also outlines what he calls the “myriad deficiencies in the CSRTs” and notes that “the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdicition.”
So, no, I do not believe that I am ignoring any facts.
It is clear that you disagree, but I think that you (and Yoo) are protesting too much. I don’t buy all of the end-of-the-world, the-sky-is-falling rhetoric being thrown about by the critics of this decision.
I also think that having people like Anthony Kennedy, George Will, Arlen Specter and others on the opposite side from yourself should clue you in that this is not your typical Liberal vs. Conservative argument. I personally think it actually breaks down as Authoritarians vs. Libertarians. What are your thoughts on that?

(18) Beldar made the following comment | Jun 17, 2008 5:48:22 PM | Permalink

We're going to get nowhere debating Greenwald's credibility. He's a proven liar and phony — Google his name with the phrase "sock puppet" if you have any doubts. I ordinarily don't read his stuff, nor permit links to it here, because he's among the least intellectually honest figures on the left. I stand by my characterization of him. He's the kind of guy who glories in American casualty figures. I despise him.

Kennedy's line about compromising the "mission at Guantanamo" is the single most clueless line in the opinion. The issue isn't whether operations at Guantanamo Bay Naval Station will be compromised, but whether the United States' world-wide anti-terrorism efforts will be compromised.

Likewise, Kennedy's conclusory statements that the CSRTs are inadqaute is based on the ridiculous, entirely unprecedented premise that enemy alien combatants have any rights under the U.S. Constitution.

The sky isn't falling, but Democrats want to return blithely to a 9/10 viewpoint under which the proper tool for dealing with terrorism is conventional law enforcement. That does cause skyscrapers to fall from the sky.

(19) stevesturm made the following comment | Jun 17, 2008 6:52:46 PM | Permalink

Back from dinner....

I wasn't directing my comments at just your commentary, I was responding to others (comments here and elsewhere) as well who have gone off the reservation over the decision and Obama's comments, thus not everything I wrote was applicable to your post, and I'm sorry for not being more clear on that. Now, as to putting words in mouths, where did I write 'unqualified success'?

I don't know what the Blind Sheik is doing or not doing, but I agree that he should have been executed. Our failure to pull a trigger is not a shortcoming of the criminal justice system, it is a recurring failure of our society to properly punish those who commit crime (terrorism or otherwise). Thus, I have no confidence that he'd be dead if a military tribunal had handled his case instead of McCarthy. Likewise, to the extent that we were only able to get a fraction of those involved, our military has only been able to get a fraction of those killing us elsewhere, so, if you are, why assume a non criminal justice environment would be so much better at getting our enemies?

And, if you will be so kind, note that I had no problem with tweaking the system to make it easier to handle trials with national security ramifications. We make accommodations in other cases: trade secrets, informants in criminal trials and so on that depart from the norm, we could and probably should do the same here.

(20) DRJ made the following comment | Jun 17, 2008 7:10:01 PM | Permalink


I don't want to sound like I'm quibbling when I'm in agreement with virtually everything you've written, but I wasn't suggesting this decision would make US military troops do something improper. My point was that the military would be foolish (and the military is not foolish) if it failed to take steps to protect American troops from effectively becoming police officers, investigators and witnesses.

I think this decision makes it more likely the military will avoid, where possible, taking custody of detainees and that it will choose tactics that reduce the likelihood of military detentions. In some cases, that means letting foreign governments take custody of detainees. In other cases, it may mean using drones - a tactic that also limits American troops exposure to enemy fire. While that seems like a win-win, I'm not convinced it will actually shorten a military conflict.

(21) qrstuv made the following comment | Jun 17, 2008 8:16:25 PM | Permalink

I have yet to hear a single supporter of this ruling offer a reason why this decision (to give enemy fighters access to our Federal courts, for the first time in our nation's long history) is a decision not to be entrusted to our elected representatives.

(22) Gregory Koster made the following comment | Jun 17, 2008 10:26:41 PM | Permalink

Dear Grstuv: That's easy. The elected reps might NOT do it. Even if they did, it would not nearly be so satisying as seeing five unelecteds Stick It To The Man, proving once again that America is a Land of Iniquity run by Raciam, Sexism, Homophobia etcetcetc. For dessert, a plurality of the majority was nominated by a GOP prez giving The Man another kick in the kidneys.

For Steve Sturn: Let's look at your 3 points in your preprandial post:

"1) recognize the terrorist problem, (2) make changes in intelligence gathering and sharing, (3) more aggressively use our military and other weapons to go after those supporting terrorists."

1. OK, what is the terrorist problem you want to recognize? Defining that will go a long way to prescribing the course of action you would have us take.

2. "Make changes in the intelligence gathering and sharing." If by that you mean sealing George Tenet and his Medal of Freedom inside a barrel full of hornets and rolling said barrel down a hill, well, that's a start. But how to change the gathering of intelligence? Recall that Geo W. told his spooks to start monitoring communications phone, email etc. What happened? A gigantic uproar, complete with the New York TIMES exposing one of the operations used to collecct the information. Do you think the TIMES was right to expose this operation? If you do, tell me how you propose to ask for information from other countries secret services when you disapprove of doing so in this country?

3. "more aggressively use our military and other weapons to go after those supporting terrorists."

Good heavens. Using the services domestically is greatly restricted for the good reason that the services are in the business of killing people. There are other tasks, but that's the big job. Unleashing them at home short of a civil war that needs suppression is a dubious course. Care to tell us what rules you turn them loose under? So far as operating abroad, why that's just what we're doing in Iraq and Afghanistan. You haven't said so, but my bet is that your yells of approval about our troops fighting abroad will be muted, emerging in tones suitable for a funeral parlor.

Mr. Sturn, you strike me as coming from the same place Richard Russell and the rest of the Southern Caucus came from in the mid 1960s whern Lyndon Johnson was ginning up the civil rights bills. They predicted all sorts of evils if the bills were passed. Some of their predictions came true. But they never had an alternate solution beyond "Wait, things will get better by themselves." No one believed them, rightly so. It's curious company you are keeping, and the only real retort you have is, "There's enough of us to win in November, chum." Could be. Then we will really have a gaudy show to watch. The blood price it will exact will be ferocious, though.
Glad you were able to eat dinner, and hope you can digest these remarks.

For Mr Dyer: I reread the 2003 post you linked to, and feel greatly inspired. But I'm no wiser as to what "victory" is in this conflict. It is one thing to blame the fog of war at the beginning of hostilities. But five years on? Even if we can come up with what victory means in Iraq, there's the whole of southwestern Asia, complete with the notorious Trashcanistan mobs, to be dealt with. In Europe, in Canada, discontented minorities grow by the day. At home, Mr. Thomas and Mr. Sturm mock such concerns as off the rack paranoias, not worthy of attention. The best I can do is redoubled effort. It would have been better to have a formal declaration, complete with draft, higher taxes, and regulation of the home front. Such a hair shirt would have focused the citizenry's collective mind, and made prosecuting the war the only order of business on the table. Tenet, like Admiral Kimmel of Pearl Harbor notoriety, would have been canned, and maybe preparing his defense. This lack of ruthlessness has been ruinous. Business as usual won't get this job done. I maintain that had we done so, we would be out of Iraq by now, save for security forces for the embassy, and be working on the previously mentioned sewers. It may be too late to do so now. I doubt if George Washington could get a declaration of war out of this nation now. Too many people are disheartened and irritated, ready to throw up the entire business. Such a move would buy a decade perhaps, and then another explosion, leaving the entire wretched mess to be fought yet again, from a weaker position.

If Mr. Sturn is having trouble digesting my words, I don't blame him: I'm having a lot of trouble myself.

Sincerely yours,
Gregory Koster

(23) vnjagvet made the following comment | Jun 17, 2008 10:48:01 PM | Permalink

It is unfortunate that none of our SCOTUS Justices took the JAG Corps Basic Program from one of our armed service JAG Schools.

Had Justice Kennedy's decision been an answer on an exam in one of these schools, setting up the problem considered by the Court, it would not have passed.

That that decision commanded four other Justices is pitiful.

Consider this:

In my lifetime, decisions joined by champions of Constitutional Civil Rights jurisprudence -- Black, Douglas, Jackson, Frankfurter, (Owen J.) Roberts, Murphy and Stone have been ignored and written out of military law.

I have never agreed with the injustice FDR created by forcibly rounding up and detaining the Japanese American citizens, whose loyalty was never in question, in the manner approved by Justice Black's opinion in Korematsu.

Black, Frankfurter and Douglas agreed that this injustice did not exceed a President's powers in time of war.

Murphy, Jackson and Roberts dissented. I believe they were correct.

Contrast the facts consideredin that decision with the facts before the court in this case. There is no comparison.

(24) hunter made the following comment | Jun 18, 2008 6:57:25 AM | Permalink

“If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

- Abraham Lincoln

(25) steve sturm made the following comment | Jun 18, 2008 7:31:01 AM | Permalink

Mr. Koster, maybe the fault lies on my end, but I have no friggin idea what you're harping on.

Why, for example, would you think that I was calling for the military to be used domestically? Why would you say "what is the terrorist problem you want to recognize", when your asking such implies that I either don't recognize the problem or feel that the country doesn't recognize the problem, neither of which I am doing?

In fact, you seem to have completely missed the point of that particular comment of mine (if the problem was my lack of clarity, I apologize). I wasn't trying to say that we needed to start doing those three things, it was that we hadn't done so back in the days leading up to 9/11. We didn't recognize the problem then, we certainly do so now. We didn't use our military to seek out and kill terrorists overseas, we are certainly doing so now (but not as much as I would like). We handicapped our intelligence and domestic law enforcement agencies then, we're doing less of that today.

And what do you mean by '... only real retort you have is, "There's enough of us to win in November, chum."? Who is the 'us' that you're placing me with, liberals, conservatives or somewhere in between? Where do you find support for my claiming that I am dismissing your concerns as 'off the rack paranoia'?

I stand by my original comments, that the criminal justice, albeit with some needed tweaks, is capable of handling domestic terrorism cases and not so capable of handling situations that arise overseas. If Obama thinks the criminal justice system can handle everything, he's silly, just as would be those who argue that the criminal justice system isn't capable of handling anything related to terror (and Beldar, I'm not saying you are).

(26) Mike Thomas made the following comment | Jun 18, 2008 8:52:13 AM | Permalink

I'm not going to attempt a defense of Mr. Greenwald other than to say that I think your denunciations of him are as overblown and over the top as your criticisms of this Supreme Court decision.
But I will respect your wishes and not link to him again.
But I guess I'm unclear on who I am allowed to reference. Am I limited to just those people who write for NRO or the WSJ?

As for enemy alien combatants not having rights under the U.S. Constitution, as I have argued before, that is the wrong way to look at it. We are not talking about "rights" that we reserve specifically to citizens. We are talking about responsibilities that we place upon ourselves to assure that justice is served in our courts and in our prisons. It does us no good to lock up innocent people. We cannot tolerate a system that locks away innocent people with no (adequate under our Constitution) recourse and still claim to be the worldly champions of justice and liberty.
So, one more time, they are not rights, they are responsibilities or obligations that we have as a nation.
By the way, how can they be "alien combatants" if we are fighting in their country? Doesn't that make us the aliens?

(27) A.W. made the following comment | Jun 18, 2008 12:37:37 PM | Permalink


> we don't need to, for example, send the DC sniper off to Guantanamo Bay and hold him without trial for five years in order to hold him responsible for his crimes.

Where to begin indeed. How exactly, do you propose we hold Mohammed Atta responsible for his crimes, by the way?

And of course to speak in terms of crimes is to be primarily reactive. Reactive justice is not terribly effective at dealing with suicide attackers. Reactive justice comes after hundreds are dead. We’d like to stop the problem before then.

> He was able to stick those responsible for WTC93 into jail;

Really? So Osama bin Laden is in jail, then? How about any of his stooges at the top? Any of them? So much for the criminal process.

> And if we need to tweak the system in order to modernize it in light of today's reality, we should do so, we don't need to junk it in favor of something entirely new (and unproven).

Except it is neither new or unproven. It is exactly the same approach used with Nazis and Confederates.

And then there is the really clueless part:

> If anything, responsibility for what happened in the 90s and on 9/11 lies less in any shortcomings of the criminal justice system and more with our failure to (1) recognize the terrorist problem, (2) make changes in intelligence gathering and sharing, (3) more aggressively use our military and other weapons to go after those supporting terrorists.

Well, part and parcel with using the military to go after them is, you know, taking prisoners of war arbitrarily.


> can only be suspended in times of rebellion or invasion.

Um, yeah, and when has al Qaeda ever invaded us?

> As for enemy alien combatants not having rights under the U.S. Constitution, as I have argued before, that is the wrong way to look at it. We are not talking about "rights" that we reserve specifically to citizens. We are talking about responsibilities that we place upon ourselves to assure that justice is served in our courts and in our prisons

That is not how the framers looked at it. the primary concern in limiting the power of the federal government was solely to protect us from it, not to protect everyone else from it.

The constitution is to protect us from tyranny. Not to protect the rest of the world from ANYTHING. The rest of the world is protected only by our sanity. If these are truly moral obligations, then make the moral argument, because the legal argument is a loser.

(28) hunter made the following comment | Jun 18, 2008 11:04:52 PM | Permalink

The problems of the 1990's with intel sharing and ignoring terrorism were made by the same people who fought to get the combatants held at Gtmo. HC.
Those same people see Winnie the Pooh as a great archetype for running our foreign policy.
I kid you not: link.

(29) Ex-captain made the following comment | Jun 27, 2008 1:07:17 AM | Permalink

The majority Justices on our Supreme Court only think they have the last word here. But they don't, really. These black-robed, ivory tower eggheads haven't served in the armed services or apparently, even read any military history. They haven't been to basic training, let alone a war zone, and they apparently think that a war is like an exchange of legal memoranda. Well, I have news for them. The sergeants, corporals and privates on the front lines have the last word here, and whenever they can, they will overrule the Supreme Court by taking few prisoners in the future. It's that simple. Allah had better get busy creating a whole bunch of virgins to service all guys who will be KIA's instead of POW's.

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