The Supreme Court decided yesterday, in a narrow vote, that if you want to remain silent – and stop police from peppering you with questions – you have to say you wish to remain silent (and thereby legally end the police questioning).
Our newest Supreme Court Justice, Sotomeyer, dissented saying this ruling “turns Miranda upside down.”
“Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”
That’s what happens when the word “right” is thrown around haphazardly as it is in today’s culture. What Sotomeyer is attempting to do (and what the court has done in the past) is imbue a legal privilege with the mantle of “right”. Telling someone they have the option of remaining silent has nothing to do with a right. It is a privilege our legal system has granted to those who’ve been arrested so they won’t incriminate themselves mistakenly.
There’s nothing wrong with requiring an acknowledgement that they wish to invoke the privilege of silence. There is likewise nothing wrong with assuming they aren’t invoking it by their silence. They must speak when they’re asked if they understand the Miranda warning, and they must speak to acknowledge their desire for a lawyer. There’s certainly nothing wrong with speaking to say you are invoking the legal privilege of silence.
It’s an “opt in” situation (just as speaking up for a lawyer). Otherwise, police are free to assume that privilege isn’t being used and can continue to try to question the suspect.
I see no right – in real terms – violated by this ruling. And I assume that the Miranda warning will be modified to say that the person arrested must clearly state they choose to be silent and that will be recorded or attested too. The simplest way is verbally followed up by a standard form invoking the privilege and signed by the defendant. I don’t see a problem there.
BTW, Elaina Kagen, now a SCOTUS nominee, had this to say about the case to the court as solicitor general:
“An unambiguous-invocation requirement for the right to remain silent and terminate questioning strikes the appropriate balance between protecting the suspect’s rights and permitting valuable police investigation.”
Since hopping out in front of the cameras, thinking the top kill had worked and claiming that the administration has been in charge of the effort from “day one,” things have gone down hill for President Obama. As it turns out the top kill effort was unsuccessful. And, as the Washington Post tells us today, now the effort is to distance the administration from the oil company is supposedly was directing to do its bidding:
Struggling to convey command of the worsening Gulf of Mexico oil spill, the Obama administration is taking steps to distance itself from BP and is dispatching Attorney General Eric H. Holder Jr. to the Gulf Coast to meet with federal and state prosecutors. The Holder trip could signal that the environmental calamity might become the subject of a criminal investigation.
Holder has said Justice Department lawyers are examining whether there was any “malfeasance” related to the leaking oil well, and investigators, who have already been on the coast for a month, have sent letters to BP instructing the company to preserve internal records related to the spill. But federal officials indicated that Holder’s trip, which will include a news conference in New Orleans on Tuesday afternoon, will focus on enforcement of environmental laws and holding BP accountable.
The opening of a criminal investigation or civil action against BP, if either were to happen, would create the unusual situation of the federal government weighing charges against a company that it is simultaneously depending on for the most critical elements of the response to the record oil spill.
Usually, if there is a possibility of a criminal investigation and charges in a situation like this, they are kept in abeyance until there’s some resolution to the problem. But in this case, desparate for something which will cast the administration in a favorable light, it appears this is the chosen method. Holder’s news conference will be a welcome distraction from the constant “but what are you doing to stop the leak” questions the administration gets.
That’s the act of symbolic separation.
Step two is to physically separate the administration from the
bad guys BP.
The relationship between the federal government and the oil company has been an awkward collaboration all along — “We have them by the neck,” Interior Secretary Ken Salazar said of BP in congressional testimony last week — but it reached a turning point Monday when the administration said it no longer wants to share a podium with BP at the daily briefing in Louisiana. Instead, the national incident commander, Coast Guard Adm. Thad W. Allen, will give a solo briefing wherever he happens to be.
It is a “we’re still in command, but it is an arm’s length, hold-your-nose, we’re forced to work with these people, command.” The perfect setup for something this administration is actually quite good at – demonization.
As for the spill itself, the next step is in contention. Apparently Carl Browner, the head of the EPA has become an expert in fluid dynamics and underwater blowout prevention:
The administration and BP have disagreed over whether the company’s next maneuver would cause a temporary increase in the flow of oil into the gulf. In the coming days, BP plans to saw off the top of the leaking riser pipe where it emerges from the blowout preventer that sits on the well. BP will then lower a containment dome, or cap, onto the riser in an attempt to capture the leaking oil. White House official Carol M. Browner said Sunday that after the pipe is cut, about 20 percent more oil would probably escape before the new cap is in place. BP officials said that they think that is unlikely and that there might be no significant change in the flow.
I’m not sure where she gets the idea that cutting the riser will allow a 20% increase in the flow. They’re cutting it, not removing it. It will still be there with the same diameter it’s always had, it’ll just be shorter so they can deal with it better.
The salient point, of course, is like it or not, the administration is stuck with BP, both in the plugging of the leak and in the clean up effort. And frankly, they wouldn’t have it any other way – this is the company that will be blamed for every failing of the administration. Note I said failing of the administration – it has a role and a duty in this disaster. What it is going to do, or at least attempt to do with this distancing, is to lay all blame on BP from this point on.
Holder’s trip to the Gulf is only the opening salvo.
You probably recall the left’s call for the US to join the International Criminal Court. One of the primary reasons behind that call was a desire to see George Bush tried as a “war criminal” by much of the more extreme left. And that is one of the declared purposes of that court.
The Clinton Administration signed the Rome Statute in 2000 establishing the court but never submitted it for Senate ratification. Then Senator Barack Obama, when asked if the US should join the ICC, said “yes”, echoing the far left’s desire.
So I read this particular article with interest the other day, and wondered if their desire to join the court is still as strong now as it was then:
The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.
Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.
It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.
In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.
Now note carefully what is being said. Not all drone pilots are considered to be violating the laws of war. For instance, an airforce officer flying a drone is a combatant and are normally found operating in a combat zone (Afghanistan) in support of combat operations.
However, it is argued, CIA operatives flying them in Pakistan and using lethal force for targeted killings in an undeclared war may be liable to charges of “war crimes”. It would, of course, require some legal entity in Pakistan to issue a warrant to take this argument from theoretical to real.
Now you may or may not agree with the legal arguments. But let’s stipulate, for the sake of argument, that they’re correct. Where does that lead us? Well, here:
Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.
“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”
There’s no question where the buck stops when talking about who has “authorized or directed” such attacks. It stops at the Oval Office.
So … about those cries for membership in the ICC and those shouts of “war criminal” by the left. Where in the world have they gone?
I wonder at times where our western civilization is headed. I see signs of resistance to the slide toward oblivion, but for the most part I see things which convince me that slide is almost unrecoverable.
While reading the Belmont Club, I find that Richard Fernandez seems to be seeing the same thing. And he brings two examples to the fore that signal the extent of our decent, not whether or not we’re actually sliding toward the inevitable end.
One has to do with a school teacher in the UK who was hounded by students to the point that he finally struck back violently. The situation developed over months. It was apparently known to all of those in positions of responsibility in the school. Yet the solution apparently didn’t involve disciplining the children, but instead, having the teacher take 5 months leave of absence. Of course, the fact that those who were behaving badly were left untouched by the authorities only meant the 5 months delayed the inevitable end:
Hounded for months by a group of students who decided to see what it would take to make him snap; tripped up, shoved him into hedges and followed home threateningly, Harvey went on a 5 month leave of absence because he feared he would lose his mind. Punishing the gang leaders was out of the question. Traditional classroom disciplinary measures were no longer available to him. No more harsh words, no more corporal punishment, however slight. Teachers had been sentenced to jail for striking students in a country where the police were called into classrooms 40 times a day because the schools had lost control. Upon his return from leave the same group decided to secretly record him going over the edge and arranged to goad him after which they planned to distribute the video to complete his humiliation. They didn’t reckon on the 7 pound dumb bell. The result was a 14 year old with a skull fracture and a man accused of murder.
Fernandez believes that political correctness has created a “new morality”. Going on he says, “[t]hings are now ‘appropriate’ or ‘inappropriate’ for reasons which only 20 years ago would have been regarded as completely crazy.”
The situation with teacher Peter Harvey points to this evolving morality of political correctness that completely changes the hierarchy of what is “acceptable” and “unacceptable” behavior. It is the re-institution of a stratified society:Underlying the new morality is not some notion of good or bad, but the preservation of privileges in an unstated but obvious hierarchy. Things are now ‘appropriate’ or ‘inappropriate’ in the old courtly sense. Did you forget yourself? Rise above your station? The idea that animals should not be filmed in their burrows is founded on the idea that their relative ranking in the PC universe should be revised. “What does it say about our assumptions about animals?” That we think we’re better, hence we’re bigots. QED.
That formula (simply change “animals” to your favorite PC favored group and “bigot” to your favorite PC charge) brings us to our second example, again from the UK.
A Muslim protester who daubed a war memorial with graffiti glorifying Osama Bin Laden and proclaiming ‘Islam will dominate the world’ walked free from court after prosecutors ruled his actions were not motivated by religion.
Tohseef Shah, 21, could have faced a tougher sentence if the court had accepted that the insults – which included a threat to kill the Prime Minister – were inspired by religious hatred.
But – citing a loophole in the law – the Crown Prosecution Service chose not to charge him with that offence and he escaped with only a two-year conditional discharge and an order to pay the council £500 compensation after admitting causing criminal damage.
So, since he wasn’t “motivated by religious hatred” according to CPS, his crime was less heinous than had it actually been motivated by such hatred. The fact that he scrawled “Kill Gordon Brown” on the memorial is just plain vanilla hate, one supposes and much less worrisome – although had Shah carried out the threat, I’m sure a dead Gordon Brown wouldn’t particularly care what his motivation actually was.
Shah showed no remorse for what he’d done in court. And although his lawyer contends there was nothing religious about the act and it has nothing to do with his culture – “he’s just an ordinary guy.” But who is it he sends out to speak for him?
[H]e appointed Abdullah Ibn Abbas, who described himself as spiritual leader of a group called Road to Jannah, to speak on his behalf.
He said: ‘It really doesn’t concern us how the British people feel about the graffiti he wrote – the real outrage should be about the thousands of Muslims who are being killed and butchered as a result of British foreign policy.’
Very conciliatory, wouldn’t you say? Certainly nothing to do with his culture or religion, right?
But the authorities are hoist on their own petard. They were unable to act because of the fear of being “politically incorrect” which is obviously much worse than confronting the crime for what it is and punishing the perpetrator. Why Shah isn’t in prison orange and physically cleaning the graffiti off the monument right now as he would have been 20 years ago, is something only those who let him walk with a fine can answer.
As Fernandez notes:
Everything, guilt or innocence, morality or immorality is judged not by what is done, but by who did it. Alternet has an article by a rape victim who thinks her Haitian attacker was justified because she was white and deserved to be punished. Others are above it all. If Roman Polanski does rape, is it really rape? The need to judge every act within the new hierarchy means only one real crime is left in the world: not knowing your place.
This is our world as it is evolving today. It is a crippling disease that turns the current western concept of justice on its head.
Political correctness is gradually replacing common sense and natural law with an unstated but controlling code of manners. Certain things cannot be said; certain illegal things are legal and vice versa; things though evident may not exist.
The problem, of course, are the results of such nonsense and avoidance. Dead 14 year olds because their behavior was excused regardless of how abhorrent or destructive it was. A situation that was allowed to spin out of control. The obvious sin to those who allowed this to manifest itself over those months of hell for the teacher was the possibility of being charged with damaging the fragile egos and trashing the self-esteem of the hooligans who perpetrated the crime by making them behave in a civilized manner. Instead, the responsibility was shifted to a teacher who had no power to correct the situation or stop it other than the way he eventually did.
The authorities in the case were more terrified, for various reasons, of taking on the perpetrators than stopping the abuse. And the perpetrators continued to be abusive because they knew they could get away with it. The results speak for themselves.
In the case of Shah, the same thing seems evident. He knew, based on recent history, that his chances of being punished in any meaningful way were minimal if caught. PC demands that authorities pretend that the motivations of political or religious minorities be considered pure as the driven snow or ignored. Punishing them is bad form. Consequently:
In brief the politically correct world is becoming very much like Mr. Peter Harvey’s classroom: a “caring place” seething with hatred; a place of forced gaiety, of smiles as mirthful as the Joker’s, a place you want to take five month’s vacation from knowing nothing will have changed when you get back.
And one in which those who know their behavior will be excused, no matter how vile, abhorrent or excessive, will continue to take advantage of the situation.
I’m sorry if I misunderstood, but for whatever reason, I was under the impression that this present administration was the administration of law and order which placed the rights of citizens and non-citizens alike in the forefront of any considerations it made. No more of this “supreme executive” touting the law and infringing on the rights of good Americans. Why, the administration even made a point of demanding Miranda rights be given insurgents and terrorists snagged on the battlefield. It made a big deal (from which it has since backed away) about trying terror suspects in civilian courts to show the world we could handle those misfits in our court system.
So how did this suddenly morph into an administration which throws due process down the toilet and orders the assassination of a US citizen – even odious ones with ties to terrorism?
Look, to use one of Obama’s favorite rhetorical flourishes, let me be clear – bad guys are not people I normally defend. And I’m no fan of US citizens who’re engaged in activities I’d deem hostile to the citizenry of this country at large. But that doesn’t mean you can arbitrarily throw “due process” under the bus because it is expedient to do so. That is unless you also have no problem having that process thrown under the bus if you are deemed some sort of a threat (to be defined as needed later). I mean this is mafia territory. You just call Vinny and put a hit out on the guy. Due process? The supreme executive don’t need no due process. Hit him.
Glenn Greenwald, not someone I’m normally in agreement right, fulfills the law of stopped clocks – they’re right twice daily. He’s absolutely correct in his outrage at the Obama administration:
George Bush’s decision merely to eavesdrop on American citizens without oversight, or to detain without due process Americans such as Jose Padilla and Yaser Hamdi, provoked years of vehement, vocal and intense complaints from Democrats and progressives. All of that was disparaged as Bush claiming the powers of a King, a vicious attack on the Constitution, a violation of Our Values, the trampling on the Rule of Law. Yet here you have Barack Obama not merely eavesdropping on or detaining Americans without oversight, but ordering them killed with no oversight and no due process of any kind.
We at this blog were quite clear about how we felt about Jose Padilla and his unconstitutional handling. Yes, it’s harder than just being a nice nazi and ignoring the Constitutional provisions provided by our nation’s founding legal document. But it’s harder for good reason – and this decision to assassinate a US citizen points to the very core of the reason. Without due process as guaranteed by the Constitution, this is how those in power could act arbitrarily. No longer the rule of law – it becomes the arbitrary rule of men. And there’s nothing to say that US citizens such a regime couldn’t find “enemies” of the state to be marked for assassination domestically as well.
Again, I have absolutely no love for this cleric, Anwar al-Awlaki. Is he an enemy of the state? That’s what due process is designed to determine. What we do know is he’s a US citizen born in New Mexico. Issue an arrest warrant. Demand Yemen arrest and extradite him. Drag his jihadist butt into court and try him on the charges. Present evidence. Let him face his accusers and try to refute the charges. And if found guilty, punish him to the full extent of the law. In this case, I absolutely agree that criminal court is the proper venue for this sort of trial.
But who the hell is Barack Obama to arbitrarily and unilaterally waive Constitutional due process (oh, that’s right, he’s a Constitutional law professor, isn’t he?) and order the assassination of a US citizen? And as an aside – where are all the liberal voices who spent every waking hour worrying about George Bush’s eavesdropping and loudly denouncing it, forever and ever, amen? Why are they, for the most part, silent on the subject of assassinating a US citizen?
Why is it suddenly fashionable to pretend that “antigovernment” is synonymous with “right-wing extremist?” Here’s the Christian Science Monitor:
John Patrick Bedell, whom authorities identified as the gunman in the Pentagon shooting on Thursday, appears to have been a right-wing extremist with virulent antigovernment feelings.
If so, that would make the Pentagon shooting the second violent extremist attack on a federal building within the past month. On Feb. 18, Joseph Stack flew a small aircraft into an IRS building in Austin, Texas. Mr. Stack left behind a disjointed screed in which, among other things, he expressed his hatred of the government.
Bedell was a truther – not a conspiracy theory popular with the right-wing. It is conspiracy theory popular with such “righties” as Rosie O’Donnell, Whoopie Goldberg and Van Jones.
Bedell’s apparent plan was to attack and kill military members in the Pentagon. Again, not the usual territory of right-wing extremists. However, the Pentagon was the target of left-wing antigovernment groups in the ’60s such as the Weather Underground. In fact, some of that group blew themselves up preparing a bomb for an army post. Ever hear of the Black Liberation Army? M19CO? Black Panthers? Revolutionary Action Movement? United Freedom Front? All left-wing extremist groups and all were virulently antigovernment. Has that all gone down the media memory hole?
Patterico points to a quote from Bedell’s online ranting that casts a different light on the Monitor’s claim:
This criminal organization would use its powers to convert military, intelligence, and law enforcement bureaucracies into instruments for political control, and the domination and subjection of society, while discrediting, destroying, and murdering honest individuals within those services, that work to root out corruption, and faithfully serve their fellow citizens. This organization, like so many murderous governments throughout history, would see the sacrifice of thousands of its citizens in an event such as the September 11 attacks, as a small cost in order to perpetuate its barbaric control. This collection of gangsters would find it in their interest to foment conflict and initiate wars throughout the world, in order to divert attention from their misconduct and criminality. The true nature of such a regime would find its clearest expression in the satanic violence currently ongoing in Iraq.
The “criminal organization” to which he’s referring is the Bush administration. This paragraph is the bread and butter of left-wing truther conspiracy theories. Does anyone remember the leftist claim that the World Trade Center destruction would be the basis for the Bush administration to impose martial law? Which side of the ideological spectrum consistently referred to the Bush administration as “criminal” and “war criminals”?
How then does a man who attacks the Pentagon, is a truther and uses the common language of the extreme-left of the past 8 years suddenly become a “right-wing extremist?” What is driving that rewriting of history?
The Pentagon attack and the destruction at the IRS building in Austin, Texas, come at a time of explosive growth in extremist-group activism across the United States, according to the Southern Poverty Law Center, which tracks such organizations.
The number of US extremist paramilitary militias grew from 42 in 2008 to 127 in 2009, according to a just-released SPLC annual report.
So-called “Patriot” groups, steeped in antigovernment conspiracy theories, grew from 149 in 2008 to 512 in 2009 – an increase that the SPLC report judges as “astonishing.”
We’ve covered this. And this excuse for “journalism” by the Christian Science Monitor has twisted the Bedell attack into one from the right-wing as a pretext to further pimp the SPLC report. If it isn’t right wing extremism, the author can’t use the report as “proof” of the SPLC’s report’s validity. Apparently, that was the point of the article, not whether or not Bedell actually was a right-wing extremist. Pretty pathetic in my estimation.
A 45-year-old woman, charged with ending a domestic dispute by killing her 26-year-old husband of five days, is a registered lobbyist for a group fighting domestic violence.
I mean the questions abound – 45/26, 5 day old marriage, she pops him – but:
[R]ecords show she is a lobbyist for an organization called the National Declaration for Domestic Violence Order; its Web site says the group is pushing legislation to create a database of those convicted of sex crimes or domestic abuse.
Hey, in a sort of “silver lining” to all of this, she could be the first entry.
Witnesses told police that Bridges was wearing a nightgown and a shower cap as she argued with Rankins on the sidewalk on North Avenue near West Peachtree Street around 10:45 p.m. Monday.
And moments later, witnesses said, they heard shots. They said she then “calmly walked away.”
Nightgown and shower cap out on the street? Sounds more like an attempted escape than an argument.
Truth is surely stranger than fiction.
Counterterrorism Czar John Brennan made a comparison this weekend that has landed him in hot water. Speaking at the Islamic Center at New York University on Saturday and apparently in response to a question about recidivism among the Gitmo inmates who had been released, he said the rate was about 20%.
Ok, that’s arguable, but it is a number that has been tossed around by any number of people. That isn’t what got him in trouble. If we stipulate that the 20% of terror suspects released have returned to extremism or outright participation in terror activities, most would consider such a rate unacceptable. In fact, most would not be happy with recidivism at all, but understand that 0% is most likely an unrealistic expectation.
“People sometimes use that figure, 20 percent, say ‘Oh my goodness, one out of five detainees returned to some type of extremist activity,’” Brennan said. “You know, the American penal system, the recidivism rate is up to something about 50 percent or so, as far as return to crime. Twenty percent isn’t that bad.”
Indeed, the recidivism rate for property crimes is quite high according to the Department of Justice:
Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).
But violent crime, more akin to terrorism – not so much:
Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide.
This apparent acceptance of 20% recidivism by terrorists has to inspire tremendous confidence in the public to know the guy who is supposedly engaged in fighting terrorists equates them with the kid who popped the lock on your car and stole your GPS and finds the 20% rate nothing to get excited about . Yes, to him a burglar and someone who blows up embassies are pretty much the same. And he’s quite satisfied that only 20% are going back to burglary, er, blowing up Americans.
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.
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?