The al-Marri case and beyond: what do you do with a suspected terrorist? (Part III)
Disagreements on how to deal with suspected or actual terrorists who are in our custody rest on some basic assumptions, legal and otherwise. The first of these is whether or not we are at war or the equivalent of war, or whether we are at peace. The second is how to treat actual or suspected enemy operatives (combatants, agents, terrorists, or otherwise) in times of war or its equivalent.
So, are we at war? The Constitution is mum on the definition of war, but it was rarely an issue until recently. Everyone knew what war was; despite rhetoric such as the “war on poverty,” wars were by their very nature armed conflicts between nation-states (usually but not always declared), because only nation-states had the means to organize the armies required to do any sort of meaningful damage, and only nation-states had the motivation to go to war. Insurrections and rebellions likewise were ordinarily open armed conflicts between groups that were readily identifiable and treated under the laws of war rather than civilian law, for similar reasons.
It is only recently, with the combination of modern technology and modern communications, that a group such as al Qaeda—never envisioned by the framers—could have been formed. Its hallmarks are the following: (a) international and broad in scope and numbers (b) political in aim (c) military and quasi-military in training (d) secret and clandestine, with no military uniforms or designations, or need to engage forces on a traditional battlefield (e) exceptionally brutal, abiding by no conventional law of war (f) access to modern weaponry and technology (g) access to modern communications, internet and other (h) access to modern transportation and immigration laws, which allow foreign nationals relatively easy entry to this country (i) religious and otherworldly in belief and motive, and therefore without the usual deterrents, including that of self-preservation (i) targets are universal: military, civilian, economy, and infrastructure (j) sworn to our destruction.
All of these characteristics combine to make a group such as al Qaeda, and its many offshoots and allies, especially dangerous and seemingly unique. But law can evolve to deal with something new; that’s its very nature. All one has to do is to take precedent and see how it fits the new situation.
And that’s where definitions of words such as “war” and “combatant” come in. Judges who interpret statutes and case law do this sort of thing all the time; the way these things are ordinarily decided is by looking at the purpose behind the original legal definition of the term, and seeing whether that purpose is served by an expansion to the new situation.
That process is often a difficult one, in which judges can differ greatly. Each time a law is expanded to meet a new situation we are in terra incognita, and yet there’s no choice but to try to do it or the law will be inadequate to meet our needs and the needs of our society.
So, are we at war, and are al Qaeda members such as al-Marri unlawful enemy combatants? I believe the answer is yes and yes. The characteristics of al Qaeda listed above make its members and sympathizers the equivalent of an enemy in war, and an especially pernicious one because it abides by no rules of war and always operates clandestinely, making all of its members not only enemy combatants, but illegal enemy combatants.
How are such people usually handled? The situation is nothing if not complex (see this). They cannot claim POW status, but should nevertheless be treated with basic human decency (that is, not expressly tortured).
Congress has passed laws regulating these very situations, and like all statutes these Acts are open to judicial interpretation. The Military Commissions Act of 2006, for example, sets up military entities that would govern cases of illegal enemy combatants, and would follow amended rules of evidence based on those for general court-martial but excluding certain protections such as the right to a speedy trial (if you’re interested in a very detailed description of the rules of evidence for the commissions, see this, pages 9 through 19).
Al-Marri has never faced such a commission; he has been held indefinitely in military custody in this country without a trial, as have many of the Guantanamo prisoners. This is in line with the common procedure of holding prisoners of war “for the duration” in a conventional war, but of course this war is not conventional. Although the duration of any war is never known at the outset, this particular war is almost universally expected to have a much longer duration than a conventional war, and many people (myself among them) consider this indefinite holding of alleged enemy combatants to be especially problematic for that reason.
When Congress passed the Military Commissions Act it provided for a procedure by which detainees could be designated as “unlawful enemy combatants” (see page 5 here). A Combatant Status Review Tribunal was envisioned, but (at least, as far as I can see in the relevant documents) specific rules for this body, and guidelines for a timeline by which those accused must be thus designated, are absent. Although these failings represents serious flaws, the problem could (and, in my opinion, should) be corrected without throwing out recourse to the military tribunal system as a whole.
The civilian courts have always been recognized as inadequate to deal with war conditions, but this doesn’t mean that courts and trials of some sort are innappropriate, or that people should be indiscriminately deprived of their most basic rights by whatever courts are deemed appropriate. A person’s entry point into the military commission system, with lesser rights than are guaranteed in the civilian courts, is an especially delicate moment when those accused as terrorists could be vulnerable to governmental abuses of power.
That is why the courts are correct in emphasizing the importance of establishing a proper procedure for the determination of unlawful enemy combatant status. But in establishing this procedure, the full and complete panoply of rights (including generous discovery) that we afford under the civilian justice system no longer seems appropriate (especially in the case of foreign nationals) under the strange circumstances in which we find ourselves: an exceedingly dangerous war against a vicious enemy that does not play by any of the rules and is trained in covering its tracks and using the guarantees of our civilian system against us.
In this regard, the order establishing the military commission that tried the Lincoln conspirators (citizens all) is instructional:
The civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with and prevent a battle. A battle may be lawfully fought in the very view and presence of a court; so a spy, or bandit or other offender against the law of war, may be tried, and tried lawfully, when and where the civil courts are open and transacting the usual business.
….One enemy in the power of another, whether he be an open or a secret one, should not be punished or executed without trial….The law of nations, which is the result of the experience and wisdom of ages, has decided that jayhawkers, banditti, etc., are offenders against the laws of nature and of war, and as such amenable to the military. Our Constitution has made those laws a part of the law of the land.
Whatever partisans of either stripe may argue, the law on illegal enemy combatants is far from clear, and at any rate it was developed prior to the fact situation that exists with modern-day international terror organizations. Congress’ Military Commissions Act of 2006 was passed to address this gap, but it needs some fine-tuning to function in a way that preserves the maximum rights possible commensurate with preserving the public and national safety.
Here are my recommendations—which undoubtedly will need some fine-tuning themselves:
Establish specific rules of evidence and timelines for the Combatant Status Review Tribunals that were envisioned under the Act and for detainees such as al-Marri who were held prior to that Act. Those who were clearly illegal combatants fighting us in foreign lands (al Qaeda members under arms but without uniforms in Afghanistan, for example) fit a simpler and more easily provable set of facts than al-Marri, and their designation with this status might at times be fairly straightforward. For people such as al-Marri, however, an alien who appreared to be peacefully residing in this country but who was alleged to have been an al Qaeda member and to have had al Qaeda contacts, and against whom evidence of planned terrorist activities has been amassed, the standards for declaring him an illegal enemy combatant must be stricter because the potential for error and abuse is greater.
But since the danger an al Qaeda member freely residing in this country represents is greater than that afforded by any ordinary criminal and the dangers of his being privy to our generous discovery procedures during a civil trial is likewise very great, the standards of protection afforded to such a person should not reach the levels of our civilian criminal justice system, especially if he is not a citizen nor a long-term legal resident (al-Marri is neither). In deciding whether a person thus accused is an illegal enemy combatant there might be a sort of middle-of-the-road procedure, perhaps something resembling traditional military courtmartial rules to determine this question only, and there should also be some time limit during which the accused must be granted this hearing.
What about citizens? The truth is that presently there are very few citizens held in this manner. Jose Padilla was one, but he is no longer in military custody (his case has had so many twistings and turnings that its Byzantine course would take a book to describe). Hamdi is another, but he is no longer being held at all, but was released to go back to Saudi Arabia and renounce his citizenship (where he grew up, by the way; he was a citizen because his Saudi parents were here when he was born, but they returned there when he was a child). Hamdi was picked up on an Afghan battlefield, and was only later determined to be an American citizen by accident of birth, and was never alleged to be plotting terrorism in this country.
The paucity of citizens in custody under the post-9/11 powers indicates that no Reign of Terror has been perpetrated on citizens by the Bush administration. But that does not mean that better safeguards should not be built into the operative laws; they should. These safeguards would best be served by making the government prove any accused US citizens to have been members of organizations such as al Qaeda, or prove their extreme dangerousness as terrorists plotting largescale attacks, under rules of evidence that are even stricter than those afforded aliens such as al-Marri, before being turned over to any military tribunal or detained indefinitely.
Whether these rules for determination of illegal enemy status for citizens ought to be subject to the full panoply of protections under our civilian law or whether they should come under military control at the outset is a knotty question, and one which I must admit I have not settled in my own mind. But I believe it is the only situation that might best be served by the civilian criminal system. At any rate, although cases involving the apprehension of citizens for terrorist activities or membership—and thus for illegal enemy combatant status—have been rare so far, it is still advisable to make the rules for such determinations much clearer and somewhat more protective than they are now.
The case for treating citizens who are aligned with groups such as al Qaeda as terrorists subject to military rather than civilian law rests on the idea of their being enemies of the state in a situation that is a war equivalent. The order establishing the military commission that tried the Lincoln conspirators addressed the issue of public vs. private enemies:
….That Booth and his associates were secret active public enemies [emphasis mine], no mind that contemplates the facts can doubt….[Booth] was not an assassin from private malice, but that he acted as a public foe….My conclusion, therefore, is, that if the persons who are charged with the assassination of the President committed the deed as public enemies, as I believe they did, and whether they did or not is a question to be decided by the tribunal before which they are tried, they not only can, but ought to be tried before a military tribunal.
These issues are not easy ones to solve. But the answers lie in a creative balancing of the two competing needs: to protect national security and to to protect the rights of the accused. Neither will be done perfectly, and both are extremely important. But without the first the second will be moot, because if we lose the war against Islamic totalitarians, human rights will be undermined in ways that will make Guantanamo seem like a country club and this whole debate as relevant as discussions of how many angels can dance on the head of a pin.
Neo,
You’re putting a lot of blind faith in the organization that brought us Abu Ghraib.
About as much faith as the Left puts in the organization that brought us Oil-For-Food, Rwanda, Congo child rape, inaction on Darfur, letting Syria, Libya and Iran head up Human Rights…you know, the highly-effective, totally honest UN?
Abu Ghraib was an aberration, the above list is par for the course at the UN.
Law no longer has any connection to running a civil, orderly society. It is simply, utterly insane to grant any kind of defendant’s rights to captured terrorists. Just because they’re not wearing uniforms shouldn’t give them extra privileges, it should deprive them of the usual rights of a prisoner of war.
But the Left likes terrorists. They want them to be protected, so that they can kill thousands or millions of innocent people. That’s what the Left likes. That’s what the modern Left stands for: genocide abroad and terrorism at home. The are truly the party of death. Only their greed and cowardice prevents them from committing acts of terror themselves.
And what’s worst is that they have won. The Left has won. They control every medium of communication and education. They do not tolerate dissenting views and have been eradicating independent thought and reason for a generation now.
Thousands of years from now, archaeologists uncovering the rubble of our civilization will rack their brains, trying to figure out how the richest, most powerful, most peaceful and enlightened civilization that has ever been managed to collapse. “It’s weird,” they’ll say. “It’s almost as if Western Civilization committed suicide.”
Law no longer has any connection to running a civil, orderly society.
Perfect, just perfect, Trim.
Maybe we should do away with elections while we’re at it?
I am a Liberal and I think Neo has placed this problem very nicely before us. The problem is how do we protect the rights of the accused, which ultimately protects OUR rights because even good people make mistakes in times of danger, as we protect our rights.
This, by Trimegistus, is either a bad and pointless example of Swiftian satire, that is Trimegistus is pretending to be the most ignorant man on the right to show us the moral bankruptcy of the right but doesn’t succeed because he is neither funny nor accurate in any way, or else it is the kind of thing that gives the internet a bad name:
Trimegistus writes thoughtfully:
“But the Left likes terrorists. They want them to be protected, so that they can kill thousands or millions of innocent people. That’s what the Left likes. That’s what the modern Left stands for: genocide abroad and terrorism at home. The are truly the party of death. Only their greed and cowardice prevents them from committing acts of terror themselves.”
What balderdash! But after Neo’s thoughtfully laid out carefully-argued attempt to convince ALL Americans that this issue requires us to bend our prejudices a little less and use our brains a little more, I honestly feel Trimegestus is being disrespectful not to us lefties but to Neo and her allies and arguments.
nytimes.comI think Neo is suffering from Islam Derangement Syndrome. It takes a certain frame of mind to build an Earth-shaking crisis around an enemy whose most dangerous attribute is that they’re kind of good at being sneaky.
Meanwhile, there’s an article in the NY Times about the civil war in Sri Lanka, now 25 years old. There are chilling descriptions of how the government is behaving that ought to give pause to anyone who thinks that a little breakdown in lawful behavior is just what we need.
Tomfrombfflo,
I don’t intend to speak on behalf of Trimegistus or anyone other than myself here, but perhaps I can shed some light on a possible explanation – although certainly not an excuse, for those times when I get riled up and say something horrid that may sound quite a bit like the quote you excerpt.
I find myself getting frustrated at what seems, on the part of some, to be a willing disregard of the kinds of threats that we face in the world at large. When I get the most infuriated is when what appears to be willful ignorance becomes reflexive negativity and axiomatic alignment with those who would most like to see us fail in the most bloody and spectacular fashion possible. For many like myself, Orwell’s famous quote about pacifism being objectively pro-fascism rings painfully true in today’s political climate.
I get the nagging sensation of dealing with those would would treat a train flying down the tracks like a stubborn toddler who only knows how to say “No!”.
There are some commenters here who seem to personify this outlook – and I don’t think I’ll be revealing any confidences when I say that Alphie strikes me as being an epitome of the type.
But I am also compelled to note that the tone of people like yourself in this argument salve those chafing sores, and restore my hope that we aren’t so congenitally pig-headed as a nation and feckless and vapid as individuals that we will be unable to address the threat.
In the past, I have joked (in an entirely different context and sense) that once you get nuked three or four times, it sets the tone of the conversation. Folks like yourself and the other reasonable left-folk who comment on the blog restore my faith that it won’t take a nuke or two for us to get our head screwed on straight.
Although, honestly, I have no great faith that it won’t take another 9/11 or three for the concepts to sink in. Nonetheless, it’s better than never getting the point.
BRD
amazon.comHyman,
The problem that we face isn’t Al Qaeda, per se. Rather the significant markers are two-fold.
First, 9/11, as tragic as it was, wasn’t an existential threat. It was, however, much more important in terms of signaling. Up until Al Qaeda, terrorist groups were self-limiting (self-deterring, if you will), based on the notion that killing hostages rapidly became counterproductive. The paradigmatic shift that was made obvious on 9/11 is that this is no longer a self-limiting factor, as the west itself is no longer the audience, but merely a canvas upon which messages to the Arab Street can be written in great bloody letters. Make no mistake, the ideology that animates Al Qaeda, their supporters, and brethren is concerned with a much larger, more apocalyptic and sweeping future than is commonly recognized. It’s a bit too much to get into here, but don’t make the mistake of assuming that this breed is as cuddly as Carlos the Jackal, adorable as Abu Abbas, or the kind of pure light and sweetness that is Hezbollah. The only close analogs with which people are broadly familiar are people like Charlie Manson and Jeffery Dahmer. Killing people like you, me, Neo, and every other commenter on the blog is, at the very, very least, of no greater moral consequence than swatting a mosquito to these folks.
Second, evolutionary changes in the role of the nation state, the growth of information technology (and the resulting network-centric structures that appear in its wake), the growth of supragovermental organizations, and the end of the Cold War – and the Great Power Game, before that, have all resulted in a very serious sea change in a host of areas. Most notably, the power of the state is eroding quite rapidly, which combined with the slow ideological dissolution of the Westphalian Treaty State, holds, for right now, the promise of a future of a million Mogadishus, punctuated by gated communities, the occasional Rwanda, and Parisian Car-B-Que.
Although this would probably be the first time in the history of Teh InternetsTubes that anyone actually read a real paper book based on a comment, I cannot recommend strongly enough the book “The Rosy Future of War” by Phillipe Delmas. Written before 9/11 during Fukyama’s infamous “End of History”, the book is an excellent description of this realignment of state power I mention above. If you’re interested, a few pages are available for browsing on Amazon.
Either way, these points are not intended to directly dispute what you have written, but I do hope that they help broaden the scope with which you view the implications of your observations.
Best regards,
BRD
“But the Left likes terrorists. They want them to be protected, so that they can kill thousands or millions of innocent people.”
How does one have a conversation with someone who believes something as disconnected from reality, as batshit insane, as this?
Short answer: one can’t.
Anon Y. Mous,
After hearing folks wish “a million Mogadishus” on the young men and women fighting in Iraq and listening to someone characterize those who behead prisoners (preferably on video for later distribution) by noting “They are the REVOLUTION, the Minutemen, and their numbers will grow — and they will win.” we all have our crosses to bear.
In the interests of comity, would it be reasonable to suggest that the pot and kettle have not only been introduced, but recognized each other from across a crowded room? And having done so, MoveOn?
BRD
BRD,
I don’t discount the very real threats we face.
I just doubt that the people running our military and civilian establishments have any idea what to do about them.
Action doesn’t equal a solution.
For example, we say we’re trying to spread democracy in the Middle(Muddle, heh) East, yet when any group we don’t like at the moment wins one of the elections we set up, we actively work to undermine or even kill them.
Can you see how actions like this undermine our goals?
And there are some very obvious special interests profitting from our actions in the Mddle East, yet instead of ackowledging them and making sure they are properly kept in check, the pro war crowd spends all its time laughably trying to deny their existence.
Don’t forget, Bush had close to a 90% approval rating before we invaded Iraq…why did he lose so much of it?
My two examples are a good place to start.
There are many more reasons.
You want the support of a lot of people, compromise, don’t try to bully and lie to get your way.
On topic, if you want to detain these suspected terrorists indefinitley, give them a trial first.
It can be secretive, but it has to be fair, too.
Pretty simple.
I’m not to terribly worried about it in the long term – I do not think that the terrorist have the ability to overthrow western society. When push comes to shove – we shove harder (and when it gets to that point, those of us that shove will not give a damn what the others think).
It is the short term I am more worried about – in the short term too many do not want to do what needs to be done (insert your own reason). In order for it to get to the point of “push comes to shove” there is going to have to be a real and total threat – many are right in that we could sustain many 9/11’s with no real appreciable damage. The terrorist have the money, ability, and the will to escalate it as far as we will let them and I think we are going to let them do so until they do *actually* do something truly major.
I live in an area that will not be hit, it is way too rural – there is no reason too. Those that live in the areas that will be hit tend to be the ones wanting to “negotiate”. I’m very close to just saying “Ok, have it your way” and letting it go. If it were not for the soldiers that will die that had no reason too, I would have done so long ago.
In the end, those that are disliking what is currently going on will either be dead or end up agreeing. Effectively the enemy is such that it will force nearly everyone who doesn’t agree with them into those two groups.
In the end – my ideas will be the norm one way or another. I would rather do it the easy on us way, but I can not force it nor should I really be able too.
Some of your detractors, Neo, are hilarious.
Whenever Mous starts keyboarding, it is as if the gates of hell open up and the winds of hate spew out to corrode the innocent souls of men and women alike.
“But the Left likes terrorists. They want them to be protected, so that they can kill thousands or millions of innocent people.”
How does one have a conversation with someone who believes something as disconnected from reality, as batshit insane, as this?
Insane? Hyperbolic, perhaps. His point is that while you may not run around cheering the terrorists like women ullulating in the streets of Gaza, you (yes, I’m generalizing, sorry) make excuses, say it’s not what it seems to be, or there’s really another reason things are screwed up, because in your universe, there is always at the bottom of it all, one great satan- the U.S. It can’t REALLY be their fault if at the core it is ours, so they get a pass. If people like you and Reid and Pelosi and Kucinich have their way, I’m afraid we will see things much worse than 9/11, and what Trimeg said will have borne true, in essence at least. That you can’t understand his criticism and frustration says little for your powers of understanding. I suppose it’s easier to claim befuddlement with his position, than deal with the substance (or lack thereof) and consequences of your position.
You know, the irony is that those who are incensed that our ‘liberties are being eroded’ should really be the most ardent supporters of defeating terrorists. The problem with terrorists is that in not adhering in any way to the rules of warfare, they blur the lines between battlefield and non-battlefield, combatant and civilian, weapon and tool. THEY force our hand to declare everywhere the battlefield (and rightly so). They place civilians in danger by posing as civilians themselves. They jeopordize our liberties (I don’t think as much as some do, but) by using them for cover for their operations. THEY are so clearly the enemies of freedom and liberty, not only in the abstract, but quite manifestly in our day to day reality. But the very people who are concerned about our freedoms want to tie our hands in fighting those who would pervert them
I bet none of this nonsense happened when we capture Barbary Pirates… non-state entity or no.
This government has been “doing what needs to be done” for five years, and has failed spectacularly at it. We are in exactly the sort of war that we shouldn’t be in, where our advantage of technology is meaningless, and where we can just be steadily worn down, at enormous costs to us and at trivial cost to the enemy. Letting your enemy set the terms of battle is a sure way to lose the war.
And as we see from the comments, for every person wishing “a million Mogadishus” on our troops there’s someone wishing for more 9/11s to take out the coast liberals who are the only ones standing in the way of winning the Final War for Civilization.
There are a few of us, though, who think that people who want to have evenly matched civil wars (as opposed to holding one-sided massacres) should be allowed to do it without our soldiers dying in the middle.
We aren’t hoping for another 9/11. We are, however, afraid that, due to the interference of the Left, another 9/11 is inevitable. And, if it happens, the Left will be gleeful, claiming we brought it all on ourselves, and it’s all our fault, because our government is so evil, the terrorists are really just freedom fighters, it’s Vietnam all over again—we know the drill.
The Left has been puffing up terrorists and idolizing them, since they adopted Arafat and the PLO back in the 70’s, and went to work demonizing Israel. When Vietnam fell, and Cambodia was taken over by Pol Pot, they defended the re-education camps, and the killings.
When 9/11 happened, they simply felt free to come out with their hatred for America: “Little Eichmans”, “A million Mogadishus,” “Quagmire!” Sorry, guys, but you’ve been a little too outspoken about how much you hate this country. It’s not about Iraq, or the president, or how the government’s run; it’s about the Left v. America.
P.S. For a legal handle on how to handle terrorists, if we were sensible, we’d look at the way we handled the Barbary pirates. But we’re not, alas, being sensible.
Mouse, Alphie, etc.:
If the Left isn’t in favor of mass death, why do all their actions seem to be designed to bring it about? I’m serious — are you saying that the modern Left are just a bunch of complete morons who can’t understand that allowing terrorists a safe haven in our own country will probably lead to Bad Things? Are you saying that modern American liberals really are clinically insane?
Or are you unable to understand the simple fact that terrorists want to kill us? No matter how much Michael Moore et al deny it, we have proof. They have already killed thousands of Americans and show every intention of doing so again.
So how, using the law-enforcement paradigm, can we prevent this? Criminal prosecutions require an overt act — which means we must wait until there are thousands more corpses and another pile of rubble before acting.
Now either Leftists are really really stupid and can’t understand this, or they are insane and cannot connect cause and effect, or… they think this is a desireable outcome.
So either I’m right, or the Left are all fools and madmen. Convince me.
I’m planning to write on the Barbary pirates soon. Of course, the best-laid plans….
Trimegestus:
The Left is not going to be happy until terrorists can be tried as ordinary criminals, in ordinary criminal courts—with all the attendant circus atmosphere, lawyerly misdirection, waffling judges, intrusive media and leaking of important data (which might have been used to prevent future terrorist acts).
If nothing else, from a purely practical point of view, trying to keep a civilian jury safe from threats and intimidation under such circumstances would be impossible (not to metnion the fact that courthouses and jails would immediately become terrorist targets). Also, the fact that, due to the current state of society, the courts, both civil and criminal, are seriously backed up, and move very slowly.
So, I agree with you. Either the Left really does want terrorists to gain a safe haven in the US, in which case all their actions and arguments are made in order to achieve that end, or they really are too dumb to realize how catastrophic this could be, and why it’s unwise to treat terrorists like ordinary crooks.
Either way, they should not be listened to. (I mean, for G-d’s sake, they’ve been telling us all the years what a peach Castro is!)
Alphie,
First off the bat, I want to thank you specifically for giving a more detailed and better explained answer than can be contained in a sentence of two.
As far as a lot of the antecedents in your response go, I disagree with the premise, implications, and assumptions of a lot of them – but I think it’s pretty clear that we’re not going to cover those with any degree of adequacy in a comments section. So, would it be reasonable at this point for us to agree to disagree on those topics, with the intent of reaching some sort of reasonable middle ground on the questions at hand?
If so, I’d like to ask your forbearance on the comment you made specific to this post, so I can think through it a bit more and give you something better thought out than a reflexive, off-the-cuff response.
Best regards,
BRD
dear Neo
This string of commentary has not brought any light on what YOU worked so assiduously to construct: an argument for legally handling suspected terrorists who are legal aliens or who are actual citizens NOT captured on the battlefield.
Your great and wise commentator Trimegestus, as usual, ignored EVERY point and nuance of your argument and wrote his all too usual and all too boring self-inflated balderdash. If I did not know how unfunny people are in Blogosphere-istan, I would think Trimegestus was a leftie like me trying to bring down your arguments by stupid comments.
I understand you cannot ban fans of your site, but couldn’t you ask them to stay on point?
dear Neo, note on your ideas. As I say, in general I am in agreement with the dilemma we face as outlined by you.
You wrote:
“These safeguards would best be served by making the government prove any accused US citizens to have been members of organizations such as al Qaeda, or prove their extreme dangerousness as terrorists plotting largescale attacks, under rules of evidence that are even stricter than those afforded aliens such as al-Marri, before being turned over to any military tribunal or detained indefinitely.”
I think you need a constitutional lawyer to comment on that proposal, because it may not pass constitutional muster. My own feeling, and I assume that neither of us are lawyers, is that once you set up those safeguards, there are criminal charges that could hold up under our current laws in Regular Courts.
If someone is accused of being a terrorist or terrorist sympathizer in the post 9/11 America, they are sometimes held indefinitely, until the constitutionally undeclared ‘War against terror’ is over, which by most estimates will not be for many more years.
While such suspects are held, we do not know what they are subjected to nor how they are supposed to prove their innocence.
In Buffalo, we have someone called “The Bike Path Rapist” who was serving a life-sentence for murder and rape. Three separate woman identified him in three separate assaults in different places at different times. He was diagnosed as schizophrenic and was untreated for his mental illness. He was not granted parole because he showed no remorse; he insisted he was innocent. Well, he was. Another man committed the crimes and was caught after he struck again.
I think the great beauty of our country is that cases like this are not supposed to happen. We have to defend ourselves against attacks for two reasons: first, to protect ourselves, and second to protect our way of life and justice from the wave of chaos that would follow a successful attack of the unthinkable kind.
So you and whoever chooses to think about this are correct, this is not an easy question.
The man who served over twenty years for a crime he didn’t commit is back home with his family. He is in his fifties now. The state has issued an apology.
The conspirators who were thinking of attacking Fort Dix and those who were thinking of attacking the JFK fuel pipeline are going to be tried as regular criminals. The people who don’t have faith in the ability of our system to handle such matters in a sane and legal way are the ones who are truly treasonous – they would destroy the foundations of our country in their thirst for blood.
Amusingly enough, in doing a bit of searching I discovered that the old Weather Underground folks also wanted to attack Fort Dix. And according to Wikipedia, then as now, proper prosecution was hindered because the government tried to get cute with their COINTELPRO program instead of following the law.
Most police that follow the law never prevent crimes, because laws specifically prevent police from apprehending criminals before they committ a crime. Things have become more lenient these days given the Drug War and the Pedophillia on the Net bait shows.
Three excellent, thoughtful posts! I’ve quoted them, and linked to some of the comments, here.
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