QandO

Archive for the ‘Legal Affairs’ Category

The Guantanamo Bay circus continues and comes full circle:

The trial of 9/11 mastermind Khalid Sheik Mohammed won’t be held in lower Manhattan and could take place in a military tribunal at Guantanamo Bay, sources said last night.

Administration officials said that no final decision had been made but that officials of the Department of Justice and the White House were working feverishly to find a venue that would be less expensive and less of a security risk than New York City.

The back-to-the-future Gitmo option was reported yesterday by Fox News and was not disputed by White House officials.

So much for that stale “fierce moral urgency” bit. I don’t think anyone believes that campaign slogan any more.

Funny how this administration, which claimed to have the moral high ground on the issue of Gitmo, now understands why it exists and why military tribunals were the preferred method of dealing with terrorists who’ve declared war on us.

Heck of a job, Eric.

~McQ

Wait, what …?

It’s still open?

You’re kidding?!

But I thought …

Wasn’t this the day the Obama administration promised it would be closed?

Well, well.

And what else?

The Obama administration has decided to continue to imprison without trials nearly 50 detainees at the Guantánamo Bay military prison in Cuba because a high-level task force has concluded that they are too difficult to prosecute but too dangerous to release, an administration official said on Thursday.

So the Obama administration has essentially agreed with the Bush administration about holding certain detainees without a trial and the “symbol of American shame” remains open in order to do that?

Hope and change.

~McQ

The Democrats and the NY Times are howling about the SCOTUS decision which effectively rendered the anti-First Amendment McCain-Feingold Campaign Finance Law moot.

Essentially their argument boils down to “the public is too stupid to be able to separate the political wheat from the chaff and must be protected from political advertising by corporate entities with an agenda”.

Of course, advertising by politicians with an agenda is just peachy keen.

Reality: anyone or any group which advertised during a political campaign has an agenda.  In America, per the 1st Amendment, they have the freedom to pursue it.  Or should have that freedom, anyway.  McCain-Feingold limited or prohibited that freedom and what SCOTUS did to overturn those prohibitions is long overdue.

Judge Andrew Napalitano gives us a good rundown of the ruling:

The Supreme Court today invalidated its own 20 year old ruling on group political contributions and it also invalidated a portion of the McCain-Feingold Campaign finance law. The 20 year old ruling had prohibited all political expenditures by groups such as corporations, labor unions, and advocacy groups (like the NRA and Planned Parenthood). Ruling that all persons, individually and in groups, have the same unfettered free speech rights, the Court blasted Congress for suppression of that speech. Thus, from today forward, all groups are free to spend their own money on their own political campaigns and to mention the names of the candidates.

The Court also threw out the portion of McCain-Feingold that had permitted persons to contribute to Political Action Committees (PACs), but barred those PACs from using those funds in the sixty day period preceding an election. Since that sixty day period preceding the election is the most vital in any campaign, the Court held that the prohibition on expenditures during that time was a violation of the free speech guaranteed to all persons, individually and in groups, by the First Amendment.

Thus, as a result of the ruling today, all groups may spend their own money as they wish on their own campaigns, but they still may not–as groups–contribute directly to political campaigns. The direct political contribution prohibition in McCain-Feingold was not challenged in this case, thus its constitutionality was not an issue before the Court. Groups will thus effectively be running and financing their own campaigns for candidates on their own.

That means the FEC no longer has a say in what is or isn’t appropriate or who can or can’t run what during an election season. Apparently, according to Napalitano, one of the questions asked by Justice Scalia which elicited an answer from the FEC infuriated most of the justices:

During the course of oral argument on this case in October in the Supreme Court, one of the FEC’s lawyers replied to a question from Justice Antonin Scalia to the effect that the FEC could ban books if they were paid for by corporations, labor unions, or advocacy groups. This highly un-American statement in the Supreme Court–that the federal government can ban books–infuriated a few of the justices.

Anyone reading this want to raise their hand and back book banning?

Democrats are concentrating their ire on the fact that the court found that a corporation has the same right to express itself as an individual. It is another battle in their long war against corporate America.   It’s not an effective or particularly compelling argument.  A PAC isn’t an individual but enjoyed the same advertising rights as an individual.  Why shouldn’t a corporation enjoy them as well?   So don’t get balled up in their nonsense argument.  The fact remains that free speech doesn’t discriminate.  It means free speech for all, regardless of what group or entity represented.

This is a long overdue dismantling of a anti-liberty law.  Most people understand that fundamental truth.  And most people also understand that government should not be in the business of deciding who can or can’t speak out during a political campaign.  In fact, the fundamental purpose of the 1st Amendment was the protection of political speech.  Congress seems to have lost sight of that.

Any argument for the reinstatement of this law or any law which resembles it is an argument to limit political speech.   While you may not be happy with the fact that you’ll now see even more advertising than before, it is a fundamental victory for liberty and those that love liberty should applaud it.

~McQ

Suppose I told you that there is an organization which claims to have worldwide jurisdiction (literally, “where the law speaks”) over all matters of criminal law and justice, regardless of who a person is? No I’m not referring to the ICC, but instead to the Obama administration.

The Obama administration is considering a criminal trial in Washington for the Guantanamo Bay detainee suspected of masterminding the bombing of a Bali nightclub that killed 202 people, a plan that would bring one of the world’s most notorious terrorism suspects just steps from the U.S. Capitol, The Associated Press has learned.

Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia and, until his capture in August 2003, was believed to be the main link between al-Qaida and Jemaah Islamiyah, the terror group blamed for the 2002 bombing on the island of Bali.

It’s not readily apparent what charges would be brought against Hambali, but a real question exists as to exactly what power our civil judicial system would have over him. In order to pass judgment on anyone, a court must have personal jurisdiction over the defendant, which essentially means that he has some nexus with the place where his trial takes place. With respect to Khalid Sheikh Mohammed, there is at least a good argument that his alleged activities with respect to the 9/11 attacks and the World Trade Center bombings creates a connection with the court of record in New York City. In contrast, Hambali does not, as far as anyone has alleged, have any connection whatsoever with the District of Columbia, nor with anywhere else in the United States. So on what basis can a DC court claim to have any power over his person?

Yet that’s just what the Obama administration proposes to do. It is considering trying Hambali in a federal civil court, supposedly for his terrorist actions (which are legion, to be sure) elsewhere in the world. Most famously, Hambali is thought to be the mastermind behind the devastating bombings in Bali back in 2002. But Bali is in Indonesia, not the United States. Indeed, Jemaah Islamiya, of which Hambali is known to be the operations coordinator and chief liason to al Qaeda regarding its Southeast Asia conquests, has not been alleged to be involved in any actions in America or her protectorates. All of which should lead to the inexorable conclusion that our federal courts have no jurisdiction over Hambali.

Perhaps no real harm would come from a court reaching such a decision. It wouldn’t lead to a release of the prisoner, necessarily, since the question of guilt or innocence would never be addressed. But what if, instead, a ruling is made that there is personal jurisdiction over Hambali? Stranger things have happened — witness the vast expansion of judicial power created in Boumediene v. Bush, where the Supreme Court found that its jurisdiction for habeas corpus purposes extended to any person within America’s exclusive control. Should a DC court find it does have personal jurisdiction over a person who has no connection to America except for being captured by her soldiers, that would be paramount to declaring American law and jurisprudence the law of every land. In other words, we would be claiming that our laws “speak” everywhere and for everyone, whether you like it or not.

If you are inclined to believe that holding enemy combatants at GITMO directly aids al Qaeda’s recruitment efforts, how do you think the terrorist organization and her adherents will take to our claim that they, and everyone else in the world, are subject to our civil laws? How will the rest of the world view such an arrogant statement? Beyond satisfying some petty political aims, by taking such a misguided step as this the Obama administration is not doing the U.S. any favors, and is likely damaging our interests.

It remains a mystery, to me at least, why closing Gitmo is such a priority to this president.  In fact, it seems like it is the only campaign promise he actually plans on keeping, although to this point he’s been spectacularly unsuccessful.

But seriously, other than location, what does closing Gitmo and moving these “detainees” to a prison in Illinois accomplish?  Does Obama and the left actually believe that doing so will kill jihadi propaganda about the prison in Cuba which they claim is used as a recruiting tool?

“Make no mistake,” he said. “We will close Guantanamo prison, which has damaged our national security interests and become a tremendous recruiting tool for al-Qaeda.”

Realistically, all the jihadis will do is change the name to the new prison and it will be recruiting propaganda as usual.  Do you think they really care where their fellow terrorists are held?  Of course not – the propaganda value isn’t in the place, its in the fact that they’re “suffering under the power of the infidel”.  Whether that “suffering” takes place in Cuba or Illinois is absolutely irrelevant to them.

And the Obama administration can run the best prison in the world, but the propaganda they seem so worried about will still characterize it as a infidel hell hole and torture chamber.  The depth of naivete necessary to believe that closing Gitmo will solve some sort of perception problem throughout the world and hurt jihadi recruiting is rather disturbing when you consider who it is that supposedly believes it.  In fact, the only thing I see this closure of Gitmo bringing is the expenditure of more money we don’t have for no apparent gain – not that government isn’t quite good at that anyway.

Today we learn that 20% of those poor goat herders who were innocently swept up in Iraq and Afghanistan have engaged in terrorist activities after their release. And we’ve supposedly kept the really bad one’s. Wasn’t the fact that they were terrorists the reason we stuck them in Gitmo to begin with?  So, if we now stick them in Thompson Correctional Center and keep them “indefinitely” without trial if it determined that is necessary (as promised by President Obama) how does TCC become any different in the eyes of jihadi’s (or, for that matter, the rest of the world) than Gitmo?

The short and simple answer is, it doesn’t.  All of that is a smoke screen. In fact what the move does accomplish is to transfer the terrorists from military control and custody to civilian control and custody and, by the way, into the US legal system – the real reason, I believe, behind the desire to close the Cuban facility.

~McQ

One of the more dishonest ways the Congress is able to portray various spending bills as not adding to the deficit or being revenue neutral is to push mandates onto the states and have them pay a large portion of the cost. That way, that cost is hidden from the original numbers churned out by Congress and validated by the CBO. That’s the case in this health care bill and one of the primary reasons Sen. Ben Nelson sought an exemption for his state of Nebraska before he’d support the current Senate bill.

Well that’s not sitting well with any number of states going through hard financial times right now and seeing even more spending mandates coming their way in the health care reform legislation. They’re threatening to go to court if what they’re calling the “Cornhusker Kickback” is left to stand in the legislation:

Thirteen state attorneys general have sent a letter to Congress threatening legal action against health care reform unless a provision in the Senate bill given to Nebraska is removed.

The provision is known as the “Cornhusker Kickback,” because it gives Nebraska a permanent exemption from paying for Medicaid expenses that would be required of all the other states. This means that taxpayers in other states would be paying for an increase in Nebraska’s Medicaid population. Medicaid is a federal-state health care program for the poor.

“This provision is constitutionally flawed,” the attorneys general wrote. “As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking the provision.”

I bring this to your attention because I think this may be the primary way those who oppose the health care bill will have to fight it once it has passed – in court.  There are all sorts of problems and pitfalls with such a strategy.  But I’m also of the opinion much of the bill is “constitutionally flawed” and wide open to challenge. Of course, given the rather liberal interpretations of that document in the past by SCOTUS, it’s rather difficult to predict whether challengers will have any success. However, I think the mandate to buy health insurance, for instance, is something which can be challenged on constitutional grounds. And obviously these 13 States Attorney Generals think they have constitutional ground to challenge the kick back (I wish they’d challenge the mandate to the states instead).

We’ll see, but supposedly that’s what the court is there for – although since Kelo, I’ve had very little confidence in the court’s actual desire or aim to uphold the actual intent of the document.

~McQ

You have to hand to Harry Reid. His lack of respect for the Constitution is rather pedestrian by Democrat standards these days, but he is positively the Thomas Alva Edison of inventive ways to flout it:

If ever the people of the United States rise up and fight over passage of Obamacare, Harry Reid must be remembered as the man who sacrificed the dignity of his office for a few pieces of silver. The rules of fair play that have kept the basic integrity of the Republic alive have died with Harry Reid. Reid has slipped in a provision into the health care legislation prohibiting future Congresses from changing any regulations imposed on Americans by the Independent Medicare [note: originally referred to as "medical"] Advisory Boards, which are commonly called the “Death Panels.”

It was Reid leading the Democrats who ignored 200 years of Senate precedents to rule that Senator Sanders could withdraw his amendment while it was being read.

[...]

Section 3403 of Senator Harry Reid’s amendment requires that “it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.” The good news is that this only applies to one section of the Obamacare legislation. The bad news is that it applies to regulations imposed on doctors and patients by the Independent Medicare Advisory Boards a/k/a the Death Panels.

Section 3403 of Senator Reid’s legislation also states, “Notwithstanding rule XV of the Standing Rules of the Senate, a committee amendment described in subparagraph (A) may include matter not within the jurisdiction of the Committee on Finance if that matter is relevant to a proposal contained in the bill submitted under subsection (c)(3).” In short, it sets up a rule to ignore another Senate rule.

These provisions were pointed by Sen. Jim DeMint on the Senate floor last night:

Meh. It’s an old Constitution anyways, and it’s not like we’ve really been using it. Heck, I’ll bet most people don’t even know what’s in that old rag, and those are just ones in Congress.

I don’t think there’s any real doubt that Eric Holder’s decision to try the 9/11 defendants in New York’s federal court was as much about politics as justice. President Obama’s remarks about KSM’s guilt and the outcome of the trial left little doubt this is to be a show trial. And while I’m certainly no fan of Sen. Lindsey Graham, I thought he made Holder look foolish during the Senate hearings into the matter. It was clear, at least to me, that this decision was not well thought out. It was also clear that Holder had no idea of the possible ramifications of his decision. He continually, but ineffectually, avoided Graham’s points – once these terrorists are brought into the federal court system there are a completely different set of rules at work. And while they may indeed get convictions with these particular defendants, it most likely won’t be pretty and it sets a precedent (criminalizing this war) that we may regret in the future.

It is now emerging that even if the administration adamantly denies that these are show trials, the terrorists in question know exactly what they are and plan on using them to propagandize what they did and why:

Scott Fenstermaker, the lawyer for accused terrorist Ali Abd al-Aziz Ali, said the men would not deny their role in the 2001 attacks but “would explain what happened and why they did it.”

[...]

Mohammed, Ali and the others will explain “their assessment of American foreign policy,” Fenstermaker said.

“Their assessment is negative,” he said.

Fenstermaker met with Ali last week at the U.S. prison at Guantanamo Bay in Cuba. He has not spoken with the others but said the men have discussed the trial among themselves.

But don’t worry – the feds have it all under control. This will be a fair but orderly trial:

Dean Boyd, a spokesman for the Department of Justice, said Sunday that while the men may attempt to use the trial to express their views, “we have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disrupton, as federal courts have done in the past.”

Really? So how does Mr. Boyd and the Department of Justice plan on stopping a terrorist, to whom they just gave this right, from confronting his accusers in court and taking the stand to defend himself?

I mean if this is all about justice and not about, you know, a show?

~McQ

Editorializing today, the New York Times says:

Attorney General Eric Holder Jr. took a bold and principled step on Friday toward repairing the damage wrought by former President George W. Bush with his decision to discard the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.

From that entirely unnecessary policy (the United States had the tools to detain, charge and bring terrorists to justice) flowed a terrible legacy of torture and open-ended incarceration. It left President Obama with yet another mess to clean up on an urgent basis.

Of course this minimizes the arguments to Bush did or didn’t follow “the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.”

In fact there were no “well-established systems” in existence at all as we found out. Anyone who remembers what happened as we began to take in these “detainees captured in antiterrorist operations” knows that no system at all existed. There was a tremendous amount of debate and legal research done to try to determine what sort of status these people should or could be held under. And that’s not been established in full to this day.

For instance, the NYT claims that “open-ended incarceration” has been ended by the Obama administration’s move. But that’s simply not true. As the Washington Post reports:

That leaves up to 75 individuals remaining at Guantanamo who could continue to be held under the laws of war because they are deemed too dangerous to release, but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

So it appears, given the evidence, that open-ended incarcerations continue. Why? Because we still don’t have a comprehensive legal policy with which to deal with these people. As the Obama administration found out when it tried to close Guantanamo, the legal questions were indeed complex and unresolved. And, at least 75 individuals continue to face the possibility of open-ended incarceration because of that – a year into the Obama administrations tenure.

The Times continues:

On Friday, Attorney General Holder announced that Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four others accused in the plot will be tried in a fashion that will not further erode American justice or shame Americans. It promises to finally provide justice for the victims of 9/11.

Mr. Holder said those prisoners would be prosecuted in federal court in Manhattan. It was an enormous victory for the rule of law, a major milestone in Mr. Obama’s efforts to close the detention camp at Guantánamo Bay, Cuba, and an important departure from Mr. Bush’s disregard for American courts and their proven ability to competently handle high-profile terror cases.

Well, that’s the official spin, I suppose, but my guess is it has more to do with leftist politics than any concern for justice and I think James Taranto has the best take on what is most likely about this move:

As Morris Davis, a retired military prosecutor, argued the other day in The Wall Street Journal, under the administration’s plan, “the standard of justice for each detainee will depend in large part upon the government’s assessment of how high the prosecution’s evidence can jump and which evidentiary bar it can clear.” Detainees will get a “fair trial” in civilian court only if their conviction is assured. By implication, that suggests that detainees who go before military commissions will get an unfair trial. Presumably the administration would deny this and say the commission trials will be fair too. But if so, why is such a trial not good enough for Khalid Sheikh Mohammad?

The answer seems to be that the administration is conducting a limited number of civilian trials of high-profile terrorists for show, so as to win “credibility” with the international left. These trials will differ from an ordinary show trial in that the process will be fair even though the verdict is predetermined. But people who wrongly think that either military commissions or detention without trial are unjust will not be satisfied with some detainees getting civilian trials–unless, of course, they are simply eager to be impressed by Barack Obama.

I think he’s exactly right. These are indeed show trials, considered safe enough (the evidence is overwhelming enough that classified evidence won’t be necessary) to ensure conviction. These trials will have little to do with “justice”, but they will have much to do with shutting up or at least muffling the leftist base which still isn’t satisfied with what the administration has accomplished in terms of closing Gitmo. These trials buy the administration more time.

Note also what Tranto says about the implication that exists concerning military tribunals. The Times says it out loud:

Regrettably, the decision fell short of a clean break. Five other Guantánamo detainees are to be tried before a military commission for the 2000 bombing of the Navy destroyer Cole, including Abd al-Rahim al-Nashiri, who is accused of planning the attack.

The rules for the commissions were recently revised to bring them closer to military standards. And Mr. Holder cites the fact that the Cole bombing was an attack on a military target to justify a military trial. But that does not cure the problem of relying on a new system outside the regular military justice system. Nor does it erase the appearance that the government is forum-shopping to win convictions. Most broadly, it fails to establish a clear framework for assigning cases to regular courts or military commissions going forward.

The rules revisions the Times cites were cosmetic at best. But note that the editorial doesn’t mince words concerning its disdain for the military tribunal. The fact that those being tried before the tribunal actually attacked a military target doesn’t stop the Times from claiming “forum shopping” as the key to their continued use.

So let’s review – KSM is going to NY for trial. That, supposedly, is a clean break with the awful Bush years and open-ended incarceration and military tribunals. Except it’s not. 75 remain in open-ended incarceration at Gitmo. And 5 will face justice in front of military tribunals.

In fact, the only thing that has happened is a couple of show trials, which could just as easily been done in Guantanamo (or if they want a Federal Court – how about Miami), are going to be held in an attempt to “prove” that things have changed.

The Times is obviously fooled into believing that. And, that proves one thing – that politically at least, the Obama adminstration got this one right.

~McQ

I‘m sure she’d appreciate it given how hard she fought to save it.  But alas it is no longer there.  In one of the biggest “Constitutional” travesties in my lifetime, the Supreme Court sided with the city of New London to essentially give the property to a private concern which had promised to “lure jobs” to the town.  In a total misuse of eminent domain, the property on which Ms. Kelo’s house used to sit is a “wasteland of weeds”.  And Pfizer, the company that was going to bring all those jobs in return for the condemnation?

Pfizer’s laying off and closing up shop there:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday….

Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.

How about just handing them over to Ms. Kelo? In this disgraceful, but landmark case, 5 justices managed to somehow twist the law to the point that they agreed taking the town’s taking of the Kelo property for redevelopment at the be behest of Pfizer, a private concern, on the promise of more jobs somehow met the ‘public use’ criteria. The ruling put the property of every American in jeopardy of taking for almost anything a local government can dream up. And it remains in jeopardy today.  Pfizer should have been left to offer homeowners a price if they wanted that land so badly.  It should never have seen the government, at any level, involve itself.  And it darn sure shouldn’t have seen the Supreme Court approving the use of “eminent domain” to take the property.

Scott Bullock, Kelo’s co-counsel in the case, told me: “This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

I’ll go one further than Mr. Bullock – this wasn’t an “abuse” of eminent domain, this completely rewrote eminent domain, to the detriment of the right of private property. The Kelo ruling was wrong and it was as anti-liberty as any recent ruling the Supreme Court has made. If you had confidence that the SCOTUS had your back on Constitutional matters, this ruling alone should have disabused yourself of that notion.

And look how well it has ended.

~McQ