Amateur Hour

Thank you very much, Attorney General Eric Holder, for mooting all of my high-falutin’ Constitutional ideals.  I’ve gone to some length here and elsewhere to argue that it is very important to give even a dirtsack like Khalid Sheik Mohammed due process — a meaningful trial, with evidence and cross-examination and a neutral finder of fact and all the other incidents of due process.

A trial in which the practical result is pre-determined, however, is not consistent with due process, and such a proceeding does not adhere to our ideals.  Which is why Attorney General Holder should not have said what he did today to the Senate Judiciary Committee:

SEN. GRAHAM:  [What happens] if, by some one in a million fluke, one of the defendants were acquitted?

AG HOLDER:  [Congress has already barred any Guantánamo detainees from being released inside the United States.  We would transfer them to the detention facility at Bagram Air Force Base in Afghanistan.] I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability

SEN. GRAHAM:  So in the Sheikh Mohammed case, we’ve never going to let him go if something happened wrong in the federal court.

SEN. CRONYN:  What if a federal judge orders the Department of Justice to release Khalid Sheikh Mohammed?  Will you defy that order?

AG HOLDER:  We have taken the view that the judiciary does not have the ability necessarily to certainly require us to, with people who are held overseas, to release them.  It’s hard for me to imagine a set of circumstances, given the other things that we could do with Khalid Sheikh Mohammed” that would result in him being freed.  Under the regime we are contemplating … the ability to detain under laws of war, we would retain that ability.

Eeee-diot!  I stick my neck out on a limb to say, “Hey, a trial is the right thing to do, it’s very important to be true to our national ideals even when the stakes are this high,” and then I get told that the result is pre-determined?  Either he’s guilty or he’s not.  If he’s not, then what other charges are there to levy against him?  I’m told there are lots.  If there aren’t, and there is a reasonable doubt of his innocence, then why in the hell are we holding him at all?

What Holder testified about fits well into the idea of calling him a prisoner of war.  It’s a non-frivolous argument that this is what KSM really is.  After all, as one of my interlocutors elsewhere insists, KSM could readily be considered a “non-citizen enemy combatant [] captured on foreign soil [who is therefore not entitled to] substantially the same procedural protections enjoyed by U.S. citizens on American soil.”  That sounds a lot like a prisoner of war to me — insisting that he have to wear a standardized uniform in order to earn that status is putting form over substance there.  If he was literally captured on a battlefield, his clothing is insignificant.  And I’d agree that a POW is not entitled to criminal due process, because a POW is not considered a criminal at all.  Rather, a POW is held until hostilities are over, during which time we treat him humanely, and after which time we let him go.  How do we know when are hostilities over against a non-state adversary?  Pretty much the same way we determined that hostilities were underway.

Now, I think that if we had made a decisive move to classify him as a prisoner of war shortly after he was captured, we’d be on strong moral and legal ground there.  But we didn’t do that’ we called him an “enemy combatant” despite the fact that at the time, there was no such legal classification, and now it’s nearly eight years since we captured the guy and he’s been totally and completely in our power ever since.  To call him a “combatant” now strains credulity in my mind, and to call Guantanamo Bay “foreign soil” is nearly as much of a stretch.  The Cubans sure as hell don’t control Gitmo — we do.

But if he’s a criminal, then he’s a criminal.  That means we arraign him, get him a lawyer, put on our evidence, and hold a trial before a neutral finder of fact.  For my part, I think that’s the way to go; the evidence says that he’s a criminal and a murderer, and he should be treated as such.  I have great confidence that the evidence against KSM is overwhelming and a guilty verdict is the only result that can be reasonably foreseen.

There is no intermediate classification between POW and accused criminal known to our legal system.  He’s one or the other.  He’s either a military problem or a criminal justice problem.  Not both.  This whole “enemy combatant” label is and has always been something of a ruse, an effort to dodge dealing with the law as it is written.  An “enemy combatant” has the right to be shot on the battlefield by a U.S. soldier, and that’s about it.  Once that person is captured and brought under our physical power, he stops being a “combatant” because he is no longer fighting anyone.  He is either a criminal or a prisoner of war.

I’ve said before and I say it again — treat a criminal like a criminal.  Which means using due process; our own ideals require nothing less.  What if he’s actually quite insane and delusional and really isn’t the 9/11 mastermind?  If by some strange circumstance a jury finds that is a reasonable possibility, then we should let him go, because those are our rules.

But we aren’t giving him due process if the effective result of the trial has already been determined. 

Now, there are those who will join Senators Graham and Cronyn in saying that if there is a risk that his dude walks free, that is an unacceptable risk.  I frankly disagree.

Recall what I said a few days ago about our susceptibility to terrorist attacks in the future.  We will only be attacked if the political winds shift such that someone can realize an advantage by attacking us.  Al-Qaeda attacked us in 2001 so that we could be used as an opposing force against which a new Caliphate could be organized.  That failed.  So why attack us again?  What gain do the bad guys get — another shot at the Caliphate?

Recall also that it’s not exactly difficult to get weapons on board airplanes if you really want to, that it wouldn’t be that difficult to get something really dangerous smuggled into the country if you wanted to, that anyone who is clever and determined will be able to pull off some kind of asymmetric attack on innocent civilians here.  Ask anyone who lives in Oklahoma City — all it takes is a U-Haul van and some fertilizer and you’ve got yourself a terrorist incident.  KSM is not and never was the only clever person in al-Qaeda.  If they want to attack us, they can.  They haven’t, so it seems logical to conclude that they do not perceive any advantage ot themselves in doing so.

Recall also that Osama bin Laden and his creepy Egyptian sidekick have been at large since 2001 despite the concentrated and overwhelming efforts of the U.S. military to root them out, but somehow they haven’t been able to harm us from their luxurious lodgings in some of the loveliest caves in the Hindu Kush.  If they hate us and want to destroy us so much, why haven’t they done anything about it?  KSM was the #3 guy, and since then being the #3 guy in al-Qaeda is a little bit like getting issued a red uniform about the USS Enterprise.  And, hey, if KSM does return to the battlefield, maybe this time he’ll get the bullet in his brain during battle that would so neatly solve all of these problems.

So if we’re going to have a trial, it needs to be a trial that has meaning.  We get no advantage to ourselves in having a meaningless trial; such a thing only obscures the fact that we denied due process to someone accused of a crime and instead put on a show trial.

I’m tired right now because I’ve let myself get angry about this and stay up too late at night. But it seems to me that the right testimony at the hearing should have been:

HYPOTHETICAL SMARTER-THAN-REAL-LIFE AG HOLDER:  Senator, we do not consider the possibility of KSM’s acquittal to be sufficiently within the realm of probability to need to prepare any significant contingency plan for that event.  The evidence against him is overwhelming.  There are no admissibility problems with the bulk of the evidence.  The defense can be anticipate to make a number of procedural objections but these are well within our abilities to handle.  I can confidently tell you that KSM will be convicted.  You might as well ask what I would do if the sun rises in the north tomorrow as what would happen if he is acquitted, because it’s just plain not going to happen.

But that’s not what the Attorney General said.  Instead, what he said amounted to, “Well, we made a big show of talking all about how he was going to get due process and we were going to be true the Constitution even for our worst enemy.  But the result is as pre-determined as one of Stalin’s show trials.”  Holy crap on a stick.  If the trial doesn’t mean anything to the defendant — if his freedom isn’t really at stake — then he’s not being tried at all.  He’s being forced to participate in a farce. A child can understand that. A farce of a legal proceeding is debatably worse than no legal proceeding at all. It’s certainly more dangerous.

In the field of respect for the Constitution, Obama and his people have now well and truly proven themselves to be better now than Bush and his people used to be.  These guys aren’t interested in justice or principles or honesty or good government or even really doing anything any different at all.  They’re interested in scoring political points for themselves, and to them, the Constitution is simply an obstacle to realizing that goal.

This ought to be unacceptable to Americans of all political stripes.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. I often wondered myself about the distinction between enemy combatant and POW, and which should apply to 'Al Qaeda' prisoners.But then I watched the BBC documentary "The Power of Nightmares" and I started thinking that maybe 'Al Qaeda' doesn't really exist as an 'international terror network' but more as a loosely-organized gang of independent radicals. They don't walk around with laminated Al Qaeda membership cards and go read the Koran in caves between vigorous calisthenic workouts on monkey bars in the desert. They are disjointed cells who work independently. You can't fight that militarily. You need police surveillance for that. KSM was the WTC mastermind. Bin Laden was just a financier. They are not an 'organization'. To have an organization, you need accountants, managers, employees. You need a board of directors, a chain of command, mission statements, code of conduct, sick leave policy, vacation schedules, employee policies, etc. This is not an organization, this is a club at best. Angry fanatics who get together after work to discuss plots. The difference between the 'mafia' and 'Al Qaeda' is that the mafioso or yakuza is in it for personal gain. It's a job. The 'terrorist' is in it for obsessive ideology. That type of mentality is simply not compatible with organizational structure.If they were building bombs or shooting at US troops, treat them as POWs. If they weren't doing any of that, my question is, WTF were they doing and why are you holding them? If you have suspicions about them, well tap their phone lines, put them on watch lists, have the CIA steal their mail whatever. Bottom line is, they don't have submarines or aircraft carriers, and no tanks, no helicopters… and they don't even have a chance to get a visa to come to the US. How much of a risk are they posing to national security?

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