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Who Will Be To Blame When The Legal Dominos Fall?

The W, Rove and Co (well, I suppose we should subtract the Rove portion after he exits at the end of this month. But for now, I’ll continue to use this label as Rove is as responsible if not more so than the others for building the house of cards that is this current administrati on.) have to let the nasty terrorists they are holding in Gitmo go for violating their rights and not putting them on trial, who’s to blame?

No doubt the GOP propaganda machine will blame it on “activist” judges, the term they use whenever they don’t like the outcome of a trail. But on the the whole, I think we aught put more faith in the system that our forefathers wisely put into place:

Many people around the world have come to question America’s commitment to the rule of law. There are few places in the world where that principle is more hallowed than in the United States federal courts. The best course of action now, in dealing with terrorism suspects, is to use these courts — the keystone of American jurisprudenc e — and show the world that America can protect itself while it respects the rule of law.

It would help if the current administrati on actually respected the rule of law rather than place themselves above it. Thus, I don’t see this happening under the current regime, do you?

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24 Responses to “Who Will Be To Blame When The Legal Dominos Fall?”

  1. Neither the founders system nor the rule of law ever envisioned granting foreigners picked up in a combat zone, accused of being enemy combatants constitution al rights so, yes, any judge that rules to the otherwise is an activist, “so what if it ain’t in the Constitution  ; we’ll pretend that it is” judge acting outside any constitution al mandate or warrant.

  2. As for the article, the Yemenis weren’t picked up in the midst of a combat zone, as most of the denizens of GITMO were so I fail to see how the author’s experience in one trial with unrepresenta tive defendants can have any possible relevance to the case of the bulk of the GITMO detainees. It’s an interesting but irrelevant little story.

  3. Also, by the author’s own little story, classified information HAD to be declassified in order to secure a conviction. Gee. Why mightn’t we want to do that? By the author’s own admission, classified information that doesn’t become part of the public record must be revealed to the defense. A defense that might prove successful and then take classified information back to the enemy. Gee…that sounds like a good idea. Even if it’s successful, both the defendants, the defense attorneys and the jury will know it. I wonder why I don’t trust defense attorneys with state secrets. Maybe its because there have been too many leaks already by defense attorneys to the press…any time they think that leak might benefit their clients, they become like sieves. I know this makes me a little Stalin, but I think this author’s article is typical NY Times blather. People who are actually bearing arms against this country within an country that we are at war against are not criminals that can necessarily be tried in civil courts, in my opinion.

  4. So overall, yes. If GITMO is forced to close and terrorists be let go, I will blame activist judges who don’t seem to have a clue as to what defense of this country requires.

    Yes, Bush and Co. can be criticized for many things but trying to try warriors as warriors rather than as just another white collar criminal (as her two Yemeni’s essentially were) isn’t one of them.

  5. TigerHawk has a good takedown of the op-ed here.

    An interesting point I didn’t make above is that the criminal justice system is set up to punish criminal offenders. It is specifically NOT set up for interdiction of acts not yet committed, which is what counter-terr orism is all about. How does one prosecute a suicide bomber?

  6. Craig, people who think like you are the reason most of the world doesn’t trust our government anymore. This is bullshit. There is no great existential threat to America from terrorism. It’s just a big fat pain in the ass. It is internationa l organized crime. We have treaties and laws for dealing with it. We broke the Geneva Convention when we removed these “combatants” from the theater. We lost all confidence from the rest of the world when we held these people without trial. There is no excuse for this. Only faggot little wimps who believe that there’s some great secrets out there that can not be exposed in order to try these people fairly.


  7. It is specifically NOT set up for interdiction of acts not yet committed

    You see Craig, there’s a big difference between you and I here. That you trust the W, Rove and Co is operating in good faith rather than randomly picking people that may or may not have any connection with terrorists whatsoever.

    Frankly, the W, Rove and Co, for me, shot themselves in the foot when they sold us the “let’s invade Iraq because they have WMD” gambit. It was a bait and switch of the grandest scale whether they thought it was true or not. The fact that they haven’t found any WMD yet is not astonishing. That you are giving people credence who haven’t earned trustworthin ess is beyond me. The days of leadership by faith over fact are long gone. The W, Rove and Co has little to no trust left to spend and their political capital is toast (burnt and dry for that matter).

    JMJ - I think my may want to refrain from fragging people with derrogatory and frankly offensive terms. All it does is inflame the hatred. You may be right, but you lose the argument by calling people such things as you do in the last sentence. I understand that there is a tendency to want to bleed into the hatefulness planted and fertilized by Rove, but doing so only alienates people like Craig. He’s actually proven very rational in terms of presenting arguments on both sides of the coin. And, he’s actually convinced me a time or two that I was wrong. We have a lot to learn from each other.

    Jersey, I think your argument is strong and you don’t need to couch it with the flaming derogatory slang as it extinguishes your point rather than strengthens it.

  8. Windspike,

    Okay. You don’t trust Bush and Co. This means we need to ignore interdiction and simply rest on prosecution after the fact? I don’t see it and I can’t go along with it. As for Jersey’s argument: what argument? Did I miss it?

  9. Craig,
    You don’t think that if there was proof of wrong doing that these folk would have been charged and penalized? What’s the hold up? Wasn’t it W who was told by the Supreme Court to fix the Gitmo situation? Is it fixed?

    As to Jeresy’s point, I’ll let him restate it, but the part I’m paying attention to here is

    We lost all confidence from the rest of the world when we held these people without trial.

    I had a friend just return from a trek in the Pacific Islands and she said that the world has a pretty grim view of America these days. They wonder why it is that we are doing what we are doing and view us as the big bully, not the savior and the horse W rode in on.

  10. The hold-up is that soldiers on the field of battle are not equipped for crime scene investigatio ns, gathering and preserving a chain of possession on evidence, protecting witnesses, having a phalanx of state-paid defense lawyers to give miranda rights to suspects before questioning and all of the nice things that crime investigator s are able to do here in peace time in our homeland. My point is that trials of such suspects in US civil criminal courts under the same rules of evidence that protects the rights of paper-pusher s cannot and should not, in my opinion, be applied to battle-field captures. They are and should be dealt with as a military matter under rules that are appropriate.

    What’s the hold up? Liberal lawyers have spent the last six years dragging Bush through the courts. You know this, surely. This would have been done three years ago if he’d been allowed to do what needed to be done in an appropriate way.

  11. Not to mention that Afghans picked up with arms in Afghanistan at war with us in protection of those who perpetrated 9/11 don’t have Miranda rights and they aren’t covered by the US Constitution . But try telling liberal lawyers that.

  12. As for Jersey, when he can advance an argument without calling people names, I’ll acknowledge his existence. Until then, he’s a non-entity. I don’t need to take his shit.

  13. As for our popularity. It is an issue, certainly. We DO need the cooperation and good will of other countries. The US civil criminal court is not, in my opinion, equipped to deal with combatants; they’ve got enough to do, in any case, dealing with crimes committed in the US, without dealing with combatants and suspected combatants who’ve never once set foot in the United States, let alone committed a crime here; they’re wartime detainees, not criminals. I’m sorry we’re not popular but that isn’t a reason to invent constitution al rights for people charged with being combatants and try to try them in a venue that isn’t and never was set up to handle people charged with being combatants.

  14. Craig,
    And the ones the US kidnapped from Italy, or Africa, or were arrested in Pakistan? Do they have any rights? Aparently not as they all found themselves in Guantanamo.

  15. Paul,

    Any rights? Certainly. What rights they have depends upon the individual case involved. Unfortunatel y, I don’t know the facts of the cases you mention. I know that US agents stand accused of kidnapping people. For the record, I think kidnapping is a crime that US agents shouldn’t be involved in.

    On the other hand, one can be against kidnapping of foreigners without thinking that the US criminal courts are the correct venue for trying every denizen of Guantanamo Bay detention camps.

  16. Craig,

    This would have been done three years ago if he’d been allowed to do what needed to be done in an appropriate way.

    Are you so sure you’d bet on the man who said ” I want OBL dead or alive?” That promise has gone unfulfilled as well. I’m not certain that your prophecy would come true. Moreover, given what we do know, and the unknown, unknowns, locked down by the super secret and executive privilege, I’m not sure that an unfettered W, Rove and Co is good for America.

    Hell, you may be right about the justice system and the Executive Branch as well - the arm that is supposed to be enforcing our laws - they can’t stop gangs from killing each other on our own soil, what makes us think they can, using whatever means necessary, stop would be terrorists from becoming such.

    I posted about this next thought a long while ago and may have to dig it out, but there in lies the fatal flaw of the W, Rove and Co. If you treat all people as suspects, you have no one left to trust. It’s the difference, albeit subtle, between “your with us or against us,” versus a much more inclusive stance, “you are with us, until you prove otherwise.” You can’ treat everyone as a suspected terrorist, or even just those you think are terrorists, unless you have proof.

    That leaves us with the current situation - a bunch of people in some random prison - not to mention those rendered elsewhere for what ever malevolent interrogatio n tactic - who may or may not have committed any crime against us, or might or might not have the potential to do so as well.

    It’s too broad a brush stroke. It’s the smoking gun as a mushroom cloud rationale for invading Iraq (remember Condi standing before the people proving the W, Rove and Co case for war on Iraq?). It doesn’t hold water. But if the President is allowed to hold people for undetermined cause, who’s to say that the President’s cause is real even though the thought of “protecting” our great Nation is noble? It certainly doesn’t make the retention of unknown, unproven and untried people for the sake that you simply think they are going to do something malevolent is right, in my book.

  17. Also, Paul, there’s something of a false choice in your comment. The only choice isn’t : 1) full constitution al rights or 2) no rights at all. The point is, try them in US civil criminal courts and they are entitled to full Constitution al rights, rights that, in many cases regarding GITMO detainees, the Constitution does not give them and the circumstance s under which they were detained make US criminal courts an inappropriat e venue for trying them. At any rate, that’s my argument. My argument is not that they have no rights.

  18. Windspike,

    Obviously, I can’t say for sure what would or would not have been done had Bush’s process not been dragged for six years through the courts. I only know that, because Bush has been dragged through the courts for the last six years, it has been impossible for any process at all to take place. I see no reason to believe that my hypothetical would not have taken place. There’s a vast difference between trying people already in custody and capturing a man surrounded by an army of his own and hiding in the mountains of a country that in a delicate balance between cooperating with the US in terrorism and struggling not to be overthrown and replaced by a government that most likely would not cooperate at all with us on terrorism, a government that very well might cooperate with terrorists, a government that has nuclear weapons. It is all very well for Obama, on the campaign trail, to threaten Musharif with invading his country. It is quite another thing to think that that’s necessarily a very bright thing to do. It’s not like we can just march in and knock on his door and say, “Open up. We’ve got a warrant for your arrest.” Which, by the way, is related to the argument against this post and the related op-ed. How does the op-ed author, or you for that matter, suggest that Bush get OBL without military force, treating him merely as a criminal?

    The criminal justice system wasn’t created to interdict crime. It was to catch and prosecute those who have already committed a crime. We decided that a criminal justice system that is weighted on the side of defendant rights, one that frequently requires that people be released whom we know to be guilty of crimes even, is the price for a justice system that would rather ten criminals go free than that one innocent man be punished unjustly. It is my contention that terrorists are in a different class from criminals. If ninteen men can, by killing themselves, kill just short of 3,000 Americans, that’s not in the same class of risk that, say, letting a robber go because of some sleight procedural flaw in his arrest or in the gathering of evidence. The robber might, probably will, go out and rob again but that’s the price we pay.

    Terrorists could, by setting off a nuclear device, kill hundreds of thousands of Americans (and, by the way, probably himself in the process). Of what use is the criminal justice system against that? That’s why we have counter-terr orism agents (no 24 jokes, please, they actually do exist in the real world and their job is very important). I don’t happen to think that hundreds of thousands of American lives at one crack is an acceptable risk to face just so as to be liked around the world. I happen to think that such acts need to be interdicted. Not just investigated and prosecuted after the fact but prevented if possible. For that, the criminal justice system is well neigh useless.

    I disagree with your premise that Bush and Co. are treating everyone as suspects. I happen to think that what I know of what Bush & Co. have been doing — and I think it’s wrong that I know as much as I do about that — are reasonable steps designed and being implemented to the interdiction of terrorist plots. Having said that, I think there are things that he could be doing — things that have nothing to do with indefinite detentions or warrantless electronic surveillance — that would also help make the country more secure so I’m not just defending Bush. Rather, I’m defending the proposition that the criminal justice system isn’t equipped for dealing with everyone at GITMO.

  19. Why criminal courtrooms are not the right place for trying terrorists.

  20. Craig,
    I hate to boil down your argument to one simple flaw, but I really don’t see how you can claim that

    because Bush has been dragged through the courts for the last six years, it has been impossible for any process at all to take place.

    That’s like saying when it starts to rain after you slam your door that it was you that caused the rain. I don’t think that the legal concerns are the reason why the “prisoners” have been detained indefinitely at GITMO, and other undisclosed, unnamed, and downright terrifying rendition locations.

    Really, there has been a process. Otherwise, how would we have gotten said “prisoners” in GITMO in the first place? The process is flawed, to begin with. Perhaps that’s where the blame need be placed. Not on a court system, which may indeed as you say, not be equipped to handle these folks. Perhaps no one is.

  21. It’s simple, really. The cases have been about where those trials can take place, under what rules they must be conducted, who will make those rules, etc., etc., etc. Until those have been cleared up, no trials could take place.

    Of course, once a person has been determined to have been combatant, he would be detained indefinitely because the combat is still taking place and who knows, until the fighting’s over, how long it will be until then. So then, in any battle, you have indefinite detentions. Always have, always will because, during war, when one side captures combatants from the other side, they don’t just let them go. Not until the fighting’s over. To do so would be silly.

    I guess there are flaws to any war. What war has ever been fought that went flawlessly as planned? I’m not aware of one. If you want to put it that way, that that means the process that has taken place has been flawed, of course it has. No question about it. But as for detainees, that’s just a part of warfare.

    No, Windspike, if you’re wondering why these cases are still open, it is precisely and exactly the legal process that liberal lawyers and activist judges have allowed to drag on for years.

    As for who’s equipped to handle these folks, I don’t know why you don’t think the military is equipped to handle them. They’re the one that has handled war-time detainees in every war that’s ever been fought since, well, forever.

    They’re pretty good at handling the enemy.

    It’s the lawyers and the judges that f*ck it all up, if you ask me.

  22. Of course, one might find that years of legal wrangling to be a good thing that shows that the judiciary is not just rolling over for the executive…

    But then, don’t let me hear you complaining that the process has taken years to complete…or, as you put it, “been charged and penalized”. The reason is one of which you probably approve.

    So then, whether the fact that judicial review has delayed the legal processing of detainees is a good thing or a bad thing depends upon whether one thinks such review to be good or bad.

    Some how, I always figured you to be one who thinks such review is good, not bad. All I’m saying is, THAT’s the reason the legal processing of detainees has been delayed for now six years, not any wish on Bush’s part to delay it.

  23. Sorry for the flames all, and especially Craig. They tend to come out when my back is bothering me.


  24. I do beg to differ about the Bush administrati on motives for delaying justice (for example, reports of abusing legal defenders, even military ones, are well known) . It’s not in question any more. Everyone knows it. They don’t know who they’re holding, what to do with them, and how to do it. Had they just played by established laws and treaties, all this would have been settled by now, but Bishco, as usual, chose to obfusgate, alter, and just plain ignore law and justice. If these guys were tried, I guarentee you that most of them would be set free. These detainees are bogeymen - and that’s exactly why it serves Bush to hold them indefinately .


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