Historian Martin J. Sklar Makes the Case for Eric Holder’s Impeachment
In his State of the Union Address, President Barack Obama skirted gingerly and quickly over the vital issue of national security policy, and how our country will address it. He gave boilerplate attention to the overriding issue of whether the United States and its European allies will do anything meaningful to stop Iran from gaining nuclear weapons, aside from once again saying that Iran must be stopped. While the President said all Americans stand united in protection of our national security, he said nothing about the growing debate over whether Khalid Sheikh Mohammed and the four other 9/11 terrorists should be tried in civilian court in New York City, and on the scandal brewing over the failure to adequately interrogate Umar Farouk Abdul Mutallab after his failed attempt to bring down Northwest Flight 253 on Christmas Day.
Let us reflect for one moment on what we have learned the past few days about what appears to be a short 50 minute interrogation before Mutallab was read his Miranda rights, and hence became silent as he prepared to lawyer up. While the administration claims the FBI learned whatever he knew about beforehand, others have received reports that in fact, the severely burned and incoherent Mutallab was unable to provide much information. Moreover, in the recent Senate hearings, it was made clear that none of our nation’s top national security personnel, including National Intelligence chief Dennis Blair, Homeland Security Director Janet Napolitano and Counterrrorism Center director Michael Leiter, were consulted about how to proceed. Nor were orders given to have Mutallab interrogated by a new agency created for just such events, the HIG- or High-Value Detainee Interrogation Group.
Now, Newsweek’s top intelligence correspondent, Michael Isikoff, has challenged their testimony. Iskioff says that in fact, Leiter and Obama’s counterrorism advisor, John Brennan, held a telephone conference call and a Justice Department lawyer briefed them and told them that Mutallab would be indicted on criminal charges the next day. Iskikoff writes:
Neither Leiter nor any of the other participants, including representatives from the FBI and the CIA, raised any questions about the Justice Department’s plans to charge the suspect in federal court, the officials said. “If you participate in a conference call and you don’t raise any objections, that suggests you were consulted,” said one senior law-enforcement official. Another added that “nobody at any point” raised any objections, either during the meeting or during a four-hour period afterward when Abdul Mutallab was informed of his Miranda rights to be represented by a lawyer.
When administration officials were queried about this by Iskikoff, administration spokesman meekly replied that they were “informed” about the decision but not “consulted” about it. In other words, they indeed knew what the administration’s course of action would be, and said nothing at all to indicate any opposition. Rather than admit this before the Senate Intelligence Committee, the responsible officials preferred to obfuscate by engaging in semantic wordplay.
All indication is, in fact, that the decision to proceed with a criminal indictment, as well as that of trying the five Al Qaeda prisoners in a criminal court in NYC, rather than before a military tribunal, came from Attorney General Eric Holder. All of this raises an important question. Congressional Republicans, and some Democrats, are making it clear that they will urge Congress not to vote funds to hold a trial in New York, and yesterday, Mayor Michael Bloomberg changed his mind and officially stated that the trial, if held, should take place elsewhere and not in the city he presides over as its chief executive.
Although Bloomberg said he hoped that Holder and the President would change their minds, little indication exists that they will. This raises two important political and constitutional questions: Is the decision to try them as criminals rather than as prisoners of war legal, and are those who made this decision to be held accountable? If it is not legal, and if it was indeed Eric Holder’s decision, is this an impeachable offense?
The case for impeachment of Eric Holder has been made boldly and forcefully by a friend and colleague, the distinguished economic historian of recent America, Martin J. Sklar. He has done so in a Memo on the issue of War and the Law that he has been privately circulating. He has given me permission to summarize and quote from what I consider to be a compelling case.
Written in mid and late November, Sklar’s argument holds up even more so given recent developments. His premise is that POWs are subject to the laws of war, and not to the civil or criminal law of the detaining country or government. If they are put on trial, they may not be tried in civilian courts, but only in military tribunals in accordance with the laws of war. As we know, this is indeed the course followed by FDR during World War II. As Morris Davis, chief US Military Commission prosecutor at Guantanamo, wrote in The Wall Street Journal in November of 2009, the classification of defendants as POWs rather than criminal defendants is consistent with Geneva Convention requirements. As he explained, “Military commissions satisfy the requirements of the Geneva Conventions, which are the source of the detainees’ rights. The rights in federal courts surpass the Geneva Conventions requirements and give detainees more than their status and the law demand.”
First, Sklar argues that neither the President nor the Attorney General has given any adequate reason why the five Al Qaeda defendants are any different than those who are going to be tried in tribunals. Moreover, the claim of both that civilian juries will find them guilty, so there is nothing to worry about, is of course prejudicial in itself and makes a mockery of any civilian trial, in which defendants are considered innocent until proven guilty. Of course, we already know in advance that they were guilty. As Sklar concludes on this issue, the statements of both Holder and President Obama “compromise the integrity of the judicial procedure, and may place it in a disruptive jeopardy.”
Secondly, aside from the issue of cost raised by Mayor Bloomberg, the trial will become a platform for the defendants to reverse their previous admission of guilt, to claim that they were tortured, and to use the courtroom as a vehicle for an indictment of “American imperialism” and “American War Crimes.” Sklar comments that hence “the trial may accordingly serve as the public-theater prelude to, and a reinforcing justification of, investigating, indicting…arresting, imprisoning and prosecuting civilian and military officers of the Bush/Cheney administration…deemed responsible for making or implementing war policy.” As we know, there are already cries to do just that for Israeli officials traveling to various countries after publication of the Goldstone Report. Sklar’s conjecture is therefore most plausible.
Sklar continues to argue that the decision for a civilian trial disarms our country and objectively arms our enemies. Ignoring this outcome, he argues, is malfeasance of duty, “a betrayal of the public trust and a violation of the constitutional oath of office.” He then makes this historical analogy:
The circumstances at present are strongly analogous to those of the Republican Party and pro-Union Democrats versus Andrew Johnson and the resurgent Secessionist/pro-slavery Democrats of 1866-68, the latter seeking to turn their defeat in war into victory via propaganda, demoralizing politics and terror, and constitutional usurpation.
If our course is not changed, Sklar warns, “we shall lie down pleasantly dreaming that the Berlin Wall is gone, state-command totalitarianism defeated in Europe and elsewhere, and the people of Iraq are on the verge of making their country free, and we shall awake to the reality that instead that the Obama regime has made state-command tyranny triumphant in Washington, and has made Illinois a Sharia state, along with all the others.” Paraphrasing Lincoln’s arguments in the House Divided speech of 1858, he quotes Lincoln’s words: “Have we no tendency to the latter condition?”
The larger question Sklar addresses is whether the Guantanamo detainees are to be no longer designated as enemy combatants, although their apprehension and detention were regarded as military captures under the laws of war, not arrests under civilian law. Attorney General Holder has in the past affirmed that the 9/11 attacks for which they are being held as the responsible parties were so regarded by the administration as an act of war. Thus the prisoners must be seen as POWs, not defendants under civilian law. Yet in March of 2009, President Obama directed that they were to no longer be designated as enemy combatants. But Attorney General Holder’s subsequent testimony before the Senate Judiciary Committee saying that their crimes were acts of war, undercuts the very basis for having them tried as civilians in federal court.
Eric Holder also claimed that he had not discussed the decision with the President before announcing it publicly, and President Obama confirmed his account. Sklar argues that “this could be considered a serious malfeasance on the part of the President, a not minor breach of his oath of office to preserve, protect and defend the Constitution, and a serious deficiency in a Commander-in-Chief, particularly in war time.” Moreover, Holder is an executive officer appointed by and removable at the will of the President, and hence subject to Obama’s authority. Legally, therefore, Sklar argues that if Obama does not countermand Holder’s decision, or remove him from office, the decision for civilian trial is as much his as the President’s.
Sklar proceeds to offer a complex legal analysis that is too lengthy to summarize. Essentially he argues with supporting legal precedents that he cites that the courts could reasonably conclude that the defendants, having been transferred to civilian authorities, were denied habeas corpus process before a civilian judge, which could be found to be an “unreasonable” period that lasted over five years. Moreover, it could also be found that the Attorney General had no constitutional authority to transfer the prisoners from military to civilian jurisdiction, and the transfer could be found not to ever have been valid, unless the President issued an Executive Order that they be transferred.
The arrests, detention and interrogation, and withholding of habeas corpus rights, therefore, could be ruled invalid and even illegal. Again, going back to the Civil War, Sklar writes:
It may be considered that in the case of Merryman (May 1861) President Lincoln ignored Chief Justice Taney’s habeas corpus order, on grounds of martial law, and in his capacity as Commander-in-Chief, Merryman was a U.S. citizen, not an alien, and he was detained by military authority on U.S. soil, not abroad, or on a ‘battlefield.’ Lincoln directed his military officers to ignore the Supreme Court order and to hold the prisoner. He subsequently reported and explained his action to Congress, and requested its affirmation, and post facto Congress affirmed Lincoln in his action, although it might have reprimanded him, or moved to his impeachment. President Obama has indicated no intent to request affirmation by Congress of the prisoner transfer.
The bottom line: As Sklar reasonably argues, Eric Holder can be found to have had no constitutional authority to ever transfer prisoners from military to civilian jurisdiction, or to order the military to hand over the prisoners to civilian authorities. Nor do the military authorities have authority to do so. It would need a Presidential directive to accomplish this. To date it has been said publicly that only Eric Holder made this decision on his own. To allow this decision to stand therefore subjects Holder to impeachment.
Legal scholars, of course, may come up with a different analysis and set of arguments. But I think historian Sklar’s analysis deserves serious consideration. With many in the Senate and House now reconsidering whether the defendants should be tried in civilian court, it may become moot. But if the administration proceeds and the trials are scheduled to be held in civilian court in NYC as now planned, possible impeachment proceedings are there to be considered as another avenue to stop this travesty of real justice.
Ron I firmly believe within the next four years Holder will be waring an orange jump suit.This administration is dirty.
Interesting article indeed. Concerning jurisdiction I have a little story concerning my time in the U.S. Navy! I got pulled over and as having been drinking I was charged with DUI in a small town in Georgia. Upon search of my vehicle they found two weapons one a Colt Police Positive and the other a Winchester 30.06 rifle. Later I was informed that one of my weapons was stolen and I figured it was the rifle (which I took from a tenant who left town and owed 6 months rent, this was four ears earlier). Nope it was for the Colt Police Positive that I purchased from a legal gun dealer and was registered in my name with the Duval County Sheriffs Department in Florida. Nevertheless I was held on $100,000 cash or property bond!
I called my commanding officer and told them of my situation and he said let me speak to the jailer. I then handed the telephone to the jailer who told me to return to my cell with a guard which I did. You see I was active duty military and as such can not be held by civilians to make a long story short about 20 minutes later the jailer came to my cell and told me to call one of my relatives to come and pick me up that they were releasing me on my own recognizance and that the bond was no longer applicable!
I did go to court to answer to the DUI which I was convicted but was returned my weapons (both of them but the attorney placed them into my trunk unloaded). I wish the military would let their men know to call their commanding officers if incarcerated it may save them lots of problems.
As far as Holder and Obama it seems that with what all is going on with the administration that the Constitution of the United States does not matter, perhaps it is time they learn that not only does it matter but their jobs might just depend on following it!
Without Mayor Bloomberg’s support, Holder’s gesture to the ACLU and the cognoscente to foolishly hold a criminal trial for war criminals is slowly unraveling. He will be removed by Obama for such an alarming lack of judgement.
Eric Holder is not going to be impeached. Martin J. Sklar may be able to provide a good justification—but it simply is not politically realistic. But this is what will most likely occur: the Obama administration will change its mind about holding the trial in New York City. If nothing else, elected officials will not fund it. Holder will be increasingly pressured to adhere to the U.S. Constitution. So much so, that he may decide to resign.
Many of Obama’s people will soon be jumping off the sinking ship. The very fact that even Russ Feingold’s presumably safe seat is in jeopardy is scaring the hell out of the Democrats. Obama can essentially go to Hades. These elected officials are going to worry about themselves. Those wishing to survive will pay close attention to the polling data—that clearly shows most likely voters to be strongly against Obama’s weak-kneed response to terrorism.
if the administration proceeds and the trials are scheduled to be held in civilian court in NYC as now planned, possible impeachment proceedings are there to be considered
It’s useful to get the facts out there, but Congress is not even investigating severe problems with this administration much less entering an impeachment frame of mind. We know no Congress will.
I rather doubt that Eric Holder could ever be impeached, given the political protections (President Obama, Congressional Democrats, leftist media, etc.) that surround him.
Still, I am encouraged that knowledgeable people are exploring Holder’s many indiscretions — and that others are writing about them. Sunshine,” as they say, “is the best disinfectant.”
Impeachment is a political act, not a criminal one. Look at the long sad list of those that were caught in criminal acts.
http://jurist.law.pitt.edu/impeach.htm
http://www.infoplease.com/ipa/A0194049.html
As you see from the second list, only Judges have actually been removed after impeachment.
I don’t like impeachment talk, but I”d like to know why a bar association hasn’t probed what seems to be a patent conflict between Holder’s lawyers who assisted the Guantonamo detainees, and the job of Justice to represent the United States. Surely those alwyers are public record somewhere?
To try someone as a prisoners of war you must have declared war on that nation i.e Afghanistan, which other countries are you at war with?
Moving the terros trial to NYC, Holder (and obviously Obam) has passed beyond incompetence or recklessness – this is sheer sedition, an act hostile to America, and deliberately executed to be so -
The political price of this will be very serious for Obama, Holder and the dems – yet, no matter how much I’d like to see Holder in chains, this is kind of a long shot -
Still… who knows?
It’s not over until its over, so lets keep the presure on this miscreants -
In addition, what about Eric Holder’s (President Obama’s?) decision not to prosecute the New Black Panthers for intimidation at the polls in Philadelphia? And Holder’s refusal to obey subpoenas about this?
This is one of those issues that’s thorny in the extreme. The article, near as I can tell, is trying to make the argument that what’s happening now, the war and the way it’s being fought, is completely typical of past wars, with nothing new going on. In reality, nothing could be further from the truth: pretty much everything about this is new.
So, does Holder have the authority to order the Pentagon to do things? No, of course not. The difficulty is that if, when the President is consulted, he backs the AG’s orders, the whole thing is irrelevant. Is this conceivably a violation of the chain of command, in that Holder doesn’t command the Pentagon? Sure, but does anyone seriously imagine that he’ll be held accountable? Come on…
What the article, and this Sklar guy, are ignoring is the fact that the situation is unusual. We’ve never fought a war against a non-national entity before. The closest thing would be the Barbary Pirates, but they had leaders (the Bey of Algiers, etc.) with governmental powers, territory, an army and governmental structure, etc. The problem was that they were *semi-*independent, and nominally answered to Istanbul and the Ottoman Empire, but in reality they did their own thing and ignored any outside authority. This made things tricky, but Congress and the President adopted the simple expedient of ignoring the Ottomans (other than diplomatic assurances we weren’t interested in conquering territory, etc.) and declared war on the Barbary Pirates (which technically should have been illegal: it is the equivalent of the British declaring war on New York state). It worked, we defeated some of the pirates, bought off the rest, and declared victory.
Now, Al Qaeda’s chief is a combination of a Bond villain and a religious fanatic. He doesn’t really have a government structure, other than a minister for bombastics (an Egyptian dentist who spouts their shared lunacy semi-regularly, unless we’ve killed him in a Predator strike–we can hope) and a press secretary (the kid from the OC who tries to convince us we should all convert to his lunatic version of his religion). He doesn’t really have an army, a government in any fashion, or (in some ways most importantly) a population to lead. Osama is the boss of this group, in many ways the Master Criminal. Sort of Pablo Escobar, with some religious fervor instead of the drugs.
The author, and Sklar in his article apparently, discusses the idea of impeaching Holder for trying these defendants in civilian court. They make the point that neither Holder or the President, nor anyone else, has given a justification for trying these defendants in civilian courts, while the others are tried in military tribunals. The problem with this article is that there’s nothing that says the President, or the Attorney General, has to justify his behavior to anyone. Further, the idea that the Attorney General, or anyone else, could be impeached for endangering the United States, or something to that effect, is the conservative version of the liberal assertion that President can be impeached because invading Iraq without provocation is a war crime, and a “crime against humanity.” People who make this assertion are trying to criminalize political differences of opinion, and I’m opposed to it, even when the “criminal” is a liberal Democrat.
While there are differences, Escobar and Osama are similar in some respects. Pablo’s dead, but that’s because of his machismo and insistence on not hiding. Both groups use/d terror to achieve their goals (the drug cartels were especially successful, for a while anyway, at suborning the local government), both are extra-governmental and irregular, and in both cases we fought them, through surrogates in the form of the local governments involved.
So, the question becomes where someone like KSM should be tried, which court should have jurisdiction. He’s not a soldier, in any real definition of the word. Back in the day, he’d have been given what was called a “drumhead court-martial” and executed by firing squad the same day. I suspect he himself would have approved of this treatment, and he probably considers us weak for not doing it. We can’t really do that any more, however. Our legal community would go berserk, and there would be a blizzard of lawsuits. So we’re stuck with either a more formal military tribunal, or a civilian court. Can anyone tell me the difference between KSM and Timothy McVeigh? What makes McVeigh subject to a civilian court, while KSM isn’t? How about the WTC bombers from years ago, the blind sheikh and his minions? They were tried in a civilian court…why not KSM? Simple animosity because of the death and destruction he caused isn’t sufficient–there has to be a logical reason why we would use one court over another.
This brings me to my point. Obama’s the President (regardless of how much some of us don’t like it) and he has broad authority in this sort of situation to do what he thinks best to defend the country. To my mind, to paraphrase Lincoln, if he thinks the country will best be served by trying all of these individuals in military tribunals, that’s what he should do. If he thinks we’ll be best served by trying them all in civilian court, then he should do that. If he thinks the country will be best served trying some of these individuals in civilian court, and others in military court, then that’s what he should (and has) chosen. Contrary to the position of the author of the article, and this Sklar guy, I see this as the President, and through him the Attorney General, doing their Constitutional duty.
I personally don’t think the idea of trying KSM in NYC is a good one, but it’s not my call. If the President and the Attorney General think it’s a good idea, then that’s what happens. In this case, Obama’s famous “I won.” statement is actually meaningful. It’s his decision, or Holder’s if Obama delegates the authority. Saying the decision is impeachable is (as I said above) analogous to those who wanted to impeach Bush and Cheney for War Crimes, asserting that the invasion of Sadaam’s Iraq was unjustified.
P.S. I find it annoying that I’m defending the Obama administration. However, I’m rather sensitive on the issue of the politicizing of the Impeachment process, and criminal trials in general. Un-electing the person in question is a much preferable course of action.
Holder is as dirty as it gets. I really wish we had statesmen who had guts to do what was right and legal under the constitution so these politicians who only care about power can be pushed out.
Oh, and one other thing (not that I haven’t rambled on enough already). The issue of whether the undie-bomber should be tried in civilian or military court should be rather obvious. He committed the crime in the U.S. (they were in the airspace over their destination city, Detroit I think, when he made the attempt) and he’s not by any stretch of the imagination a soldier, at least not in any sense that our military would recognize. By the justifications that are put forward by people arguing for the military tribunals, and by the Justice Department’s own brief arguing that right-wing extremists are a danger to the country, conservatives could wind up being tried before military tribunals. Anyone think this is a good idea, or something we should be arguing in favor of?
I ask the question again: what’s the difference between McVeigh and Mutallab? One succeeded, the other failed. Other than that, both attacked the American government because they opposed its policies. I can’t see any other differences, beyond citizenship and so forth, things that shouldn’t be part of such a discussion.
what’s the difference between McVeigh and Mutallab?
David, let’s be big kids and recognize that we’re fighting a new kind of war. The combatants are civilians for whom life means nothing, the organization is not based on or in any particular territory or state, it is funded by numerous foreign individuals and probably some governments, the issue is ideology, and the end-game for our enemy is a global totalitarian Islamist state with the complete destruction of America along the way. The similarities to Tim McVeigh are superficial, coincidental, trivial, and IRRELEVANT.
Congrats Radosh you tossed some more red meat for the rabid cretins here
“One succeeded, the other failed. Other than that, both attacked the American government because they opposed its policies.”
I personally don’t see why Tim McVeigh was not tried as an enemy combatant. He directly attacked the American government. Experts in terrorism should have interrogated him. And yes, that could have included water boarding! A decent argument can be made that foreign interests assisted McVeigh. The fact that he immediately obtained a defense attorney was most disturbing.
I believe that you have inappropriately conflated “enemy combatants” with “POW’s” (prisoners of war). Prisoners of war have greater legal protections than enemy combatants.
Clinton’s impeachment resulted in his disbarment in Arkansas. Parents of co-eds in that state can rest easier that he no longer stood a chance of teaching law to their daughters. Come to think ot it, who’d want him to teach their son?
Holder’s Guantanomo connections should have precluded him from the position of AG. He should have recused himself from any involvement in the trial-related decisions of KSAM et al. What a black eye to the legal profession!
Impeachment seems like a long shot. Why not file charges against him with the bar? Lying under oath is still a non-no isn’t it? I know it’s only Congress. With this administration’s contempt of SCOTUS and the amount tria lawyers contributed to Obama’s campaign I don’t hold out much hope.
If these defendants are entitled to all Constitutional and statutory legal rights, at what point do they become entitled to action under the Speedy Trial Act?
Surely some legal eagles out there can tell us.
Well, if Holder is impeached, look for John Edwards or one of the Philly Black Panther voter intimidators to replace him. I wonder why firearm and ammo sales are skyrocketing.
“I ask the question again: what’s the difference between McVeigh and Mutallab?”
Wrong question, it should be, what’s the difference between the five Al Qaeda prisoners and Mutallab? The answer? Nada. So, per the fact that “Attorney General Holder has in the past affirmed that the 9/11 attacks for which they are being held as the responsible parties were so regarded by the administration as an act of war”, Mutallab and the five Al Qaeda prisoners should ALL be tried by a military tribunal.
The reason for civil trail is under Military law, the death penality verdict would REQUIRE Obama to sign the death warrant.
Obama does not want his name on these documents –a muslim issue.
Not to sound like a troll but, what’s the difference between the panty bomber and the shoe bomber?
David, let’s be big kids and recognize that we’re fighting a new kind of war. The combatants are civilians for whom life means nothing, the organization is not based on or in any particular territory or state, it is funded by numerous foreign individuals and probably some governments, the issue is ideology, and the end-game for our enemy is a global totalitarian Islamist state with the complete destruction of America along the way. The similarities to Tim McVeigh are superficial, coincidental, trivial, and IRRELEVANT.
If you read my comment through, you’ll see that my point was that this *is* a new type of war, and no one, yet, has confronted this directly, at least no one in any position to do anything about it. While that’s the case, however, all of the elements that you cite in making the case that this war is different are not unique. Other countries have tried to conquer us completely in the past, or have tried to conquer other countries ditto. Other combatants have been totalitarian in their outlook, goals, and methods of fighting. The Mongols, for instance, killed *everyone* they could get their hands on, and were (in their day) much better warriors than anyone in Al Qaeda.
The difference, as I stated above, is that Al Qaeda isn’t a country, it’s an ideology. We’ve never fought a war against an ideology before, at least short of things like the War on Poverty or the War on Drugs, etc. As for whether KSM should be tried in NYC, as I said, I think it’s a mistake. That being said, I’m not the President, and to my mind it’s his prerogative to choose to try any or all of the terrorists wherever he chooses: in civilian court, military tribunal, whatever. If he wants to take them to traffic court it’d be silly, but I think he should be doing what he thinks is best to pursue the interests of the United States. If he thinks trying KSM and some of the terrorists in NYC, and keeping others in a military tribunal, is the way to go, then that’s what he should do. Again, there isn’t any hard and fast rule here, there’s no precedent. He (and presumably Holder) are essentially making the rules up as they go along. He has to do what he thinks best.
A good example of another president doing something similar is Abraham Lincoln suspending the right of Habeas Corpus during the Civil War. Prior to Lincoln, many legal Constitutional scholars thought that this power was vested in the Congress, not the President (the Constitution is vague on the subject, saying it can be suspended, without specifying who has the power). Lincoln just went ahead and did what he did, without any agreement from Congress or the Supreme Court. The Chief Justice made several Habeas Corpus rulings that essentially ignored Lincoln’s suspension; Lincoln in turn ignored him, and at least tacitly directed the rest of the Executive Branch to do the same thing.
Remember, this isn’t about whether Obama’s or Holder’s decision is correct, it’s about whether it’s *legal* and whether either of them could be impeached for it. So in answer to #15.: you’re right if you’re discussing the issue of whether this is a *smart* decision. That wasn’t the context I was framing it in, though; I was discussing whether it was legal. As to the idea of McVeigh being tried by a military tribunal: I think I addressed this, too. If we have an administration which fears conservatives and thinks they’re all potential terrorists, and court rulings and precedents that allow the government to prosecute terrorists or potential terrorists in military tribunals…then we could wind up with Rush or Ann Coulter, Glenn Beck, whoever, on trial in a military court for sedition. Does anyone seriously think that’s a good idea?
All I’m saying is we should approach this issue (of whether we try such individuals in civilian or military court) with a lot of trepidation and caution. If we capture someone in Afghanistan, sure, they’re an enemy combatant, and they should be treated as such. No reading of rights, no Habeas Corpus, just a POW camp. Not sure what happens to them eventually. The Bush people reluctantly adopted a catch-and-release system that hasn’t really worked well, and the Obama administration essentially complained that the Bush people weren’t letting enough people go. I read that Saudi Arabia has a very intensive indoctrination program, where they confront the detainee with Islamic clerics who tell them that they’re heretics, and explain why, etc…that might work, but it sounds labor-intensive and of dubious effectiveness. Anyway, until we find a way to deal with this problem, we’re going to have this difficulty. Obama’s not doing well with the question, and neither is Holder; but no one else has the solution either.
Supreme Court Encourages Terrorist Treatment and New York Trials
Barack Obama’s and Eric Holder’s interrogation decision and the New York trials exhibit consequences of Supreme Court malpractice. Notwithstanding catastrophic dangers to this country justices Anthony Kennedy, David Souter, Ruth Ginsburg, Steven Breyer, and John Stevens eviscerated the political departments’ Constitutional authority regarding national defense. Impeachment needs to begin with them and their rulings need to be vacated.
Legislative and Executive branches hold all defense powers. Congress has power to declare war. The President, as Commander in Chief, directs military operations, including armed force application, intelligence gathering, and disposition of captured enemies. These branches, most sensitive to citizen accountability, receive tasking for the most momentous issue concerning national viability.
The Constitution places no defense powers within the unelected Judiciary. Yet the justices disabled national defense in Hamdan vs. Rumsfeld by fabricating an association of terrorists with Common Article Three of Geneva Conventions. A false assertion because terrorists do participate in international armed conflict, lack pacific character, and do not meet definitions for legitimate armed forces.
These justices also improperly intruded with Bonemediene vs. Bush. They rejected guidelines developed from Hamdan vs. Rumsfeld and applied Habeas Corpus to enemy aliens contravening U.S. practice, Common Law, and Constitution.
These justices perpetrated judicial malpractice. Terrorists became citizens entering a legal conduit and backdoor into our society where their present and prospective unsurpassed butchery was equated to a civil murder. The judicial actions compare to surgical malpractice leaving a festering rag inside a body cavity. As those doctors should forfeit practice of medicine, these justices by impeachment should forfeit practice of law.
Now Obama, Holder, etal find shelter within these rulings and indulge personal moral orthodoxies forcing America into harm’s way.
P.S. I’ve also got a 2,000 word Op-ed I doubt anyone wants to read.
“Does anyone seriously think that’s a good idea?”
You are pushing your slippery slope argument way too far. The day that our justice system is unable to make this sort of distinction—means the country is finished. There is a huge difference between trying a foreign or native-born terrorist in a military tribunal, and the Obama administration falsely arresting Rush Limbaugh or Ann Coulter. I also agreed with Abraham Linclon’s suspension of Habeas Corpus. The traitorous Copperheads had to be severely dealt with. Many of them had every intention of committing terrorist acts in the north. A few even tried to burn down New York City.
I should also add that my earlier prediction became reality a lot sooner than expected. Obama’s people have already transferred the Khalid Sheikh Mohammed trial out of New York City. The heat was simply getting too intense.
I certainly do not know much about the law governing this difference between KSM and Mutallob but to me the issue is that Holder and Obama both lied about it. Holder on his own cannot tell the military what to do without Obama’s assistance yet Holder said that he did not speak to Obama about this event and Obama concurred. Why then did the military cave so quickly on this matter? Shouldn’t the UCMJ regulations have covered something like this? How could Holder make such a big decision without consulting the WH and why would the WH allow him to make it on his own? I believe that Obama and Holder both wanted this to happen and through Gates got it all oked without the official request and publicity that would surely follow. This now gives Obama the escape valve by putting it all on Holder when it blows up.
I guess the only difference between McVeigh and Mutallob is that McVeigh was a US citizen whose right to face his accusers in a trial by jury was protected by the constitution of our country. Mutallob was never a citizen of our country. That seems to me like a real easy place to draw the line. Holder is a political hack and a very bad AG. He does nothing without the complete approval of Obama and his political handlers. Next subject.
RE #20/Jim Baker:
[...] Holder is a political hack and a very bad AG. He does nothing without the complete approval of Obama and his political handlers. Next subject. [...]
I’d correct here as follows: ” Holder [...] does nothing WITHOUT OBAMA’S ORDERS [...]”
Regards -
Is Eric Holder trying to martyr Khalid Sheik Mohammad?
“Moreover, the claim of both that civilian juries will find them guilty …”
i.e., Obama/Holder say this is just a show trial. They want to try/execute KSM with as much publicity as possible (to ‘appear’ tough on terror). But a show trial will only martyr KSM in the Muslim World. Any anti-American baloney KSM spouts at trial is beans compared to the act of martyring him in a high profile publicity stunt.
The whole point of suicide attacks is to martyr the bomber and gain maximum publicity. KSM didn’t have the guts to martyr himself, so my question is this: is Holder trying to martyr KSM? If so, that is high treason.
I say waterboard KSM for every last drop of intelligence, then military trial, hang quietly and dump in a ditch. Do not martyr this rat!
#11 DavidN – Actually, the airplane of the underwear bomber was not American owned or registered, I believe. As such, it is considered foreign soil until it touches down. The bomber was captured on foreign soil as a terrorist. He is a foreign fighter, and an illegal combatant to boot. He is therefore, a saboteur. Extract all info we can, then take him out back and shoot him. At least send him to GTMO for the process.
As to why the military caved, they probably have standing orders.
It is and has been readily apparent to all with walking around sense that Holder’s basis for putting them on trial in New York was an ill concealed attempt to put Bush and Cheney on trial. It is a childish ploy of ” Hey Boss, I’ll take care of these two for ya”"
“I guess the only difference between McVeigh and Mutallob is that McVeigh was a US citizen whose right to face his accusers in a trial by jury was protected by the constitution of our country.”
No American citizen who directly attacks the government in a terrorist act deserves a criminal trial. It was foolish to provide Tim McVeigh the legal right to reject severe questioning by professional terrorist interrogators. Jayna Davis wrote, the Third Terrorist: The Middle East Connection to the Oklahoma City Bombing. There is a possibility that McVeigh was working with foreign enemies—but a criminal defendant is not compelled to answer any questions. They can always plead the Fifth Amendment and remain silent. That cannot be allowed to occur.
They’re not POWs, they’re Un-uniformed Enemy Combatants. They have fewer rights than POWs.
In fact, in past wars they would have been interrogated and then shot on the spot.
#23,
These asides don’t alter the fact that McVeigh was a US citizen. My real point was that there is a good place to draw a legal distinction between the two men. You show why you believe that is not a good place to draw the line. I completely and respectfully disagree with your point because I don’t want a political authority to have the power to determine which citizen be a terrorist and which citizen be a criminal. I would agree in so far as I believe the crime McVeigh committed warranted a trial for high treason. That way the punishment upon conviction is automatic. As to any unidentified co-conspirators, if whomever were foreigners, they should have been dealt with as terrorists.
“…because I don’t want a political authority to have the power to determine which citizen be a terrorist and which citizen be a criminal.”
Your position is both absurd and ultimately suicidal. It destroys any possibility of a viable society. We are compelled to trust our political leaders on some matters. They must be allowed to distinguish between a terrorist act and regular criminal violations. This is beyond legitimate debate. That is inherently part of their job! On the other hand, it is the duty of the common folk to watch them like a hawk. Trust, but verify. You have not taken your premise to its logical conclusion. To be blunt, you remind me of countless right-wing and left-wing radicals like Murray Rothbard. They also would leave the country defenseless simply to satisfy an abstract and unrealistic principle. The U.S. Constitution is not a suicide pact.
The difference between the shoe bomber and the panty bomber is about 8 years.
How is my position absurd and suicidal? How does it destroy any possibility of a viable society? Are you confusing citizens with non-citizens here? How is my position beyond legitimate debate? Is it beyond legitimate debate because you say so? What would be the logical conclusion of my premise? I haven’t been accused of being a radical in a long time but, thank you, I think. How would I be leaving my country defenseless (I assume against terrorism) by differentiating between citizens and non-citizens as to how they should be handled in our system. I suggested that, if we don’t want to give a terrorist a civilian trial, we could at least exclude all non-citizens from such a privilege. A legal line could easily be drawn there. Do you think we did not need to give give McVeigh his day in court? On what clear cut legal line would we make a determination that his behavior would exclude him from the same protections guaranteed to all citizens in our constitution. My point was not that I approve of anything that McVeigh did, but it was that we don’t need to entrust any government official to decide whether a citizen should get his day in court on any basis. I frankly don’t trust the government with the privilege of making that decision on US citizens whenever they determine that the infraction was an act of terrorism rather than a crime. Think about how the government handles all such privileges in areas where safety and security are concerned. We deal with hundreds of absurd government regulations in the name of our safety and security. I realize this comparison is not provoked by anything you have said, but is does help to illuminate my view of this. In other words, I don’t want to sanction the government taking away any more of my liberty for the sake of safety or security, even if they say it is my safety that they are concerned about. I believe a little bit of added security is not worth letting that dog out. You are correct that the constitution is not a suicide pact. Otherwise, it seems that you rant.
Any information the underwear bomber could give was time sensitive as his cohorts would immediately begin covering their tracks. This is a case of political correctness being treasonous.
aiding our enemies in a time of war.
““Do you think we did not need to give McVeigh his day in court?”
Time McVeigh did not deserve his day in a court created to deal with common criminals. The evidence was abundantly clear that he had declared war on the United States government and murdered its citizens. He should have been immediately treated like an enemy combatant and undergone severe questioning. This is how, it must be added, Franklin D. Roosevelt responded to the American citizens who returned to the United States to carry out sabotage missions on behalf of the Nazis. We do not have blind faith in our government officials. These people have to often make on the spot judgment calls—but our elected representatives and court systems are also obligated to oversee their actions. Our founding fathers instituted check and balance measures for a reason. We do not allow these people to act in a willy-nilly and arbitrary manner.
Your utopian and poorly thought out reasoning literally results in forbidding investigators from interrogating an American citizen terrorist if the latter chooses to exercise their 5th Amendment privileges. Such an individual could be part of a greater future plot—and we might not be able to do anything effectively to stop it. We should indeed be somewhat leery of government. You, however, are downright hostile. That is ultimately a nihilistic position.
Correct me if I am wrong. You say that you want the government to take care of your safety enough to allow them to ignore your constitutional protections whenever they determine that you are not a criminal, but are a terrorist. You say that the ‘checks and balances of our founding fathers’ will prevent government abuse.
I say that if it is possible to ignore the constitution with an exception to the 5th amendment, it would be possible to ignore the constitution on any of the articles or other amendments. Wouldn’t this be a precedent for the government to ignore s few of the “checks and balances” also found in the framework of the constitution?
If you steal car and are caught red handed, it could be that it is just as valuable for the government to decide that you are a terrorist and then extract vital information about your car theft ring, using enhanced interrogation techniques on you, not charging you with any crime until all information they can extract has been accumulated. This could be done in the name of my protection from violent car thieves like you. I’m just saying.
I doubt that people who mistrust government enough to suggest the previous as being a potential unintended consequence of a well meaning policy can usually qualify as being either utopian or nihilistic. Why have you also decided that disagreement with a policy that you favor represents not just hostility but “downright hostility” to you?
David Thomson:
You are right, and DavidN is wrong. There is no logical reason why the definition of “enemy combatant” should not be extended to domestic acts of war perpetrated by U.S. citizens against the U.S. government and its interests–especially since Al-Qaeda and militant Islam are trying to extend recruitment among U.S. citizens.
It seems to me it would be in the full spirit of the Constitution. A military tribunal would have been the right place to try Bill Ayers and his acolytes. He wouldn’t have got scott free on a technicality only to poison other people’s minds with his hatred of America from his cushy professorship at an American, tax-payer funded University.
Oh, how funny. When you said historian, I thought you meant an actual historian, not a discredited political hack. Oh well, that will teach me to believe everything I read in the headline!
“You say that you want the government to take care of your safety enough to allow them to ignore your constitutional protections whenever they determine that you are not a criminal, but are a terrorist.”
Yup, you have that right. This is why we have checks and balances to limit abuses. And my position is consistent with precedent. Once again, it is exactly how FDR handled the American citizens who retuned as Nazi saboteurs to our shores. You seem to imply that my position is somewhat peculiar when it actually represents the majority opinion.
“If you steal car and are caught red handed, it could be that it is just as valuable for the government to decide that you are a terrorist and then extract vital information about your car theft ring”
These government officials should then be brought up on charges. They are abusing their authority. Our elected officials and court systems were created to put a stop to such shenanigans.
I think everyone has lost sight of my central point, in bringing up McVeigh. What I was trying to say was this: he was tried in civilian court, and no one protested at the time. I’m taking the position that at the time, the proper authorities thought that trying him in a criminal court was proper, and they were within their rights and powers to do so. Under the same system, the rules are vague enough that if the current administration feels differently (e.g. some terrorists should be tried in civilian courts, others in military ones) then there’s nothing in our constitution, laws, or other regulations that prohibits them from doing what they want to. You can argue that what they’re doing isn’t smart, or that it risks bad things happening. It’s not, however, illegal, and Holder (or Obama) isn’t going to be impeached over it. That was my point.
Oh, and I did read Jayna Davis’ book about McVeigh and his possible Palestinian connections. The whole thing was fascinating, but even though I read dozens of books on terrorism, nothing else I read confirmed any of the stuff connecting McVeigh to shady types from the Middle East. I *did* read elsewhere about Nichols’ possible connection to Muslim militants in the Philippines (where Mrs. Nichols is from). Reportedly, Nichols visited the same part of the Philippines where Ramzi Yousef, the mastermind of the ’93 WTC attack, was visiting or living. There are rumors they met and conferred on things, though this hasn’t been confirmed.
Oh, and as to the issue of jurisdiction in the Mutallab case. They were in American airspace when the attempt occurred. It’s my understanding that’s the standard, but even if it isn’t, Holland has made no effort to claim jurisdiction, which they would surely do, since it was their plane, if they thought there was a viable opportunity. In any event, the United States has taken the position in recent years that terrorists attacking American civilians, regardless of where in the world it happens, are under our jurisdiction, and prosecutable in Federal court.
The argument about Nazis who returned as saboteurs is a good point, except it misses my main one. FDR did what he felt was the right thing; Obama and Holder are doing what they think is right in the Mutallab business, and with KSM and the others. There is no hard and fast rule that says these people have to be dealt with in a particular way, and that if the President doesn’t follow this set of rules, he can be impeached (or the Attorney General can). This leaves aside the issue that since some of the saboteurs were American citizens, they could be charged with actual treason, whereas Mutallab is a foreign national.
“What I was trying to say was this: he was tried in civilian court, and no one protested at the time.”
We were foolish in not doing so. It embarrasses me to admit that it never crossed my mind. Thankfully, There is nothing stopping us from learning from our mistakes. Both Tim McVeigh and Terry Nichols should have undergone intense questioning as enemy combatants. As a practical matter—no terrorist should ever be tried in a courtroom created for common criminals. I am not disputing the abstract right of Obama and Holder to have these terrorists tried in a criminal court. It is just absurd to exercise this option.
I have nothing more to say, I just want to have the last word in this discussion. Next subject.
Impeachment? Eric Holder could bring a hooker to the SOTU and do a line off of her leg and the Dems would come up with some reason it all made perfect sense. That’s why the 2010 and 2012 elections are so important – its the only way to make the government face reality.
We all know what happened. Holder and Obama got the call about the Xmas day bomber and made a stupid decision to read the guy his rights and treat him as a shoplifter rather than a foreign combatant or spy/saboteur.
And if you want to talk impeachment, Janet Reno would be far more deserving. She blocked the investigation of Clinton by withholding documents and was cited for contempt of congress. Just one of her many proud moments for which she was recently given the Justice award by… wait for it… Attorney General Holder.
I’d refer to Eric Holder as an idiot but I don’t want to insult idiots.
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