Graymail at Guantanamo
Federal Judge Dismisses Rendition Damages Case
Five Years of Important National Security Judicial Decisions
Destroy Iran's Nuclear Capacity
Death of a Nation
The Disgrace of the Hamdan Ruling
Federal Judge Dismisses Rendition Case
American Taliban II
Big Brother is Not in the Reading Room
Bush v. Congress: The War Powers Resolution
The Roberts Nomination and the War on Terrorism
Security v. Liberty: Dershowitz's Defense of America
Habeas Dangerous: How the Supreme Court's "Enemy Combatant" and
"Guantanamo Detainee" Decisions Give Aid and Comfort to Terrorists
In Defense of Torture
John Galt and Bill Clinton
Liberal States Cannot be protected by Herbivores (review)
Send Moussaoui South
Fox News "Senior Judicial Analyst" Mistaken on the Law
Fox News "Senior Judicial Analyst" Errs on Latest "Enemy Combatant"
No More Federal Trials for Alien, and Maybe Citizen, Terrorists
Osama bin Laden: "Hot Potato" if Taken Alive
Stanley Cohen, Fifth Column Lawyer
Suing to Stop the War
Ramsey Clark, the America-Last Movement, and the Courts
Terrorists' Nemesis: 18 United States Code, Sections 371 and 2339
The Election, the Courts, and the War on Terrorism
The Judiciary Enters the War
The Legal Left's War on America
Who's Who Among American Terrorists
Graymail at Guantanamo
Beginning at least in 1993 when the World Trade Center was bombed, there has been a large constituency in the United States for the proposition that Islamic killers were not part of a worldwide terrorist conspiracy aimed at the destruction of our country but merely another kind of criminal to be dealt with as part of, or at least with the tools of, the American judicial system.
Counterpoint has been the view, ascendant in the early Bush Department of Justice, that neither domestic criminal law nor Geneva Conventions are applicable to Islamic terrorists, who are illegal enemy combatants and should be dealt with accordingly.
Unfortunately, this conflict has not yet been definitively resolved.
For example, as David B. Rifkin, Jr. and Lee A. Casey have written recently in the Wall Street Journal, “in a series of cases . . . the U.S. Supreme Court has upheld many [administration] positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during those hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.”
Fine. But on the other hand, the “criminal law” mindset has been responsible for one battle after another that the Bush Administration has to fight in its efforts to deal with al-Qaeda terrorism. Examples abound: the Patriot Act, warrantless communications monitoring, rendition, harsh interrogation, military commissions, secret prisons, judicial review. The Supreme Court has ruled that Guantanamo prisoners have a (constitutional?) right to challenge their status as enemy combatants in an administrative hearing and to some sort of “due process.”
Unfortunately, the “terrorist” versus “criminal” conflict persists, as a ruling last week at Guantanamo dangerously demonstrates.
The ruling involved bin Laden chauffer-bodyguard Salim Ahmed Hamdan who, with the aid of American lawyers, was responsible a few years ago for inducing the Supreme Court, albeit narrowly, to invalidate the Bush-created military commissions.
Hamdan and his lawyers are now playing, and so far succeeding at, the reprehensible game of “graymail” a “damned-if-you-do, damned-if-you-don’t" litigation tactic. It consists of making a request of one’s adversary for witness interviews and documentary material that he does not want to, or can not, provide. “Graymail” is a shoddy ploy typically used by lawyers, especially those who represent criminal defendants, and by chairmen of democrat-controlled committees in Congress.
For example, in the case of Bush nominee Miguel Estrada to a federal appeals court, Senate democrats employed the graymail tactic by seeking confidential documents generated by Estrada while serving as a lawyer in the Solicitor General’s office of the Department of Justice—documents having little or no relevance to decisions that would be made by a federal court of appeals judge who takes a solemn oath to uphold the Constitution and laws of the United States.
The dilemma in the Estrada case for the Executive Branch, and the weapon the democrats’ demand gave them, was this: Either the Department of Justice complied with the Senate democrats’ demand, thus handing them a veritable can of red herring documents they could then use to manufacture yet more excuses to impugn Estrada’s ideological fitness to serve on the DC Circuit, or the government refused to hand over the confidential documents, thus enabling the democrats to complain loudly, as they did, that Estrada and his administration supporters had something to hide.
Graymail has often been used in national security cases, where in the “discovery” stage of the proceedings the defense seeks highly sensitive information so that the government is impaled on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is understandably unwilling to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn’t want). There are countless examples, among them the case of the Los Alamos lab’s Wen Ho Lee and various criminal cases involving rogue FBI, NSA, and CIA agents.
Now, we can expect graymail to become a staple of proceedings against enemy combatants at military tribunal proceedings in Guantanamo.
On February 7, 2008, Hamdan’s lawyers appeared before military judge Navy Captain (Army and Marine Corp rank: Colonel) Keith Allred.
According to an Army report of the proceedings, the defense asked Allred
to compel the prosecution to turn over records of Hamdan’s confinement in Afghanistan during the period proceeding 2002 before he was detained in Guantanamo Bay. “The prosecution seemed to have no record of the interrogation SOP’s [Standard Operating Procedures] in place during Hamdan’s detainment . . . they have no record of detainee treatment . . . no record of guards’ instruction . . . no records of what camp Hamdan was in during that period,” Charles Swift, lead defense attorney, said. Chief Prosecutor Army Col. Larry Morris stated that, “The missing 2002 records are local detention records that deal with issues of confinement such as diet, exercise, hygiene and the location of the detainee. Prosecutors are confident that every statement made by Mr. Hamdan and every interrogation record was turned over to the defense at least a year ago.” Defense Counsel Harry Schneider also requested access to high value detainees and individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan. Prosecutors argued that since the video memorialized the circumstances of how Hamdan was interrogated, producing the individuals involved in the interrogation was unnecessary. However, the prosecution agreed to provide access to a linguist who was present during the interrogation that the prosecution planned to call as a witness during trial. Although the defense plans to meet with this witness, Swift still claimed that the prosecution’s failure to offer others involved in the interrogation prevents the defense from checking the veracity of other witnesses. The defense presented a similar argument in their request to meet with high-value detainees being held in detention facilities here who they believe could prove that Hamdan was not involved in terrorist activities while employed as bin Laden’s driver. “The prosecution has taken the position that the high-value detainees that Mr. Hamdan is accused of conspiring with have nothing valuable to say, but we expect them to deny that Hamdan was a member of al-Qaida,” said Swift. “We are hopeful that the judge will give us access to these high-value detainees.” During a press conference, Swift said the prosecution’s failure to produce particular documents prevents them from properly filing motions and adequately preparing their case. However, Army Col. Larry Morris, chief prosecutor, said the prosecution has done what the law requires, which is to provide all requested evidence that is material and relevant to the defense’s case.” (My emphasis.)
Observe what is going on here. Hamdan, an enemy combatant—not a prisoner of war and not a domestic criminal defendant—is charged in a military tribunal with being an al Qaeda operative who was close to Osama bin Laden.
His lawyers want wholly irrelevant records that they know are not available—even though, as in domestic criminal cases, “every interrogation record was turned over to the defense at least a year ago”
His lawyers also want access to (1) “high value detainees” and (2) “individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan.” In other words, as in domestic criminal cases, they want access to two categories of witnesses. Category (1), the euphemistically characterized “high value detainees,” are the worst of the worst—sixteen prisoners isolated at Guantanamo in a prison within a prison under top secret circumstances. They include Khalid Sheikh Mohammed, the alleged mastermind of the September 11, 2001 attacks. Category (2) doubtless includes CIA operatives.
In short, graymail squared!
And it’s beginning to work, because the judge gave Hamdan’s lawyers what is surely the thin edge of the graymail wedge. On April 30th, thanks to Judge Allred’s myopia, he succeeded in making the Guantanamo enemy combatant military tribunals look more and more like domestic criminal trials.
According to the Miami Herald, Allred ruled that Hamdan “is permitted to sign a personal plea to alleged senior al Qaeda leaders segregated on this base—despite a U.S. government claim that it would breach national security.” Allred was not persuaded by Justice Department attorney John Murphy’s warning that allowing Hamdan to write a note to Khalid Sheik Mohammed and others could expose “grave national security secrets.” Allred concluded that there was “no inherent danger” in letting Hamdan write to his now-pen pals requesting that they provide written testimony prior to his scheduled June 2, 2008 trial. The idea is that Hamdan can seek the “worst of the worst’s” cooperation with his lawyers in support of their defense that “he was not a key al Qaeda insider but a driver on the fringes of the terror network.”
The Miami Heald reported also that “Allred had earlier ordered the government to let Hamdan's lawyers submit written questions to Camp 7 captives, in Arabic, through a government security officer with authority to censor national security secrets from the answers” but “[n]o replies have emerged. Now the lawyers want Hamdan to write the men, in effect saying, ‘This is me. Please answer my lawyers’ questions.”
Perhaps Hamdan could write: “Khalid, this is me, your ‘ole terrorist buddy from Afghanistan, Pakistan, Waziristan. I’m just down the road here in another detention facility, eating well, praying to Allah, confounding my military guards, consulting with my America lawyers, having the Court rule military commissions illegal. We’re asking for all kinds of stuff the infidels can’t give us, and when they don’t that will really gum up these proceedings. What a country!”
We better pray that Hamdan’s lawyers don’t next make an application to Allred for bail.
GUANTANAMO AND KWAJALEIN
At Guantanamo Bay’s holding facility, the military commission hearings have begun for the worst of the worst. Soon, these savages will be convicted and hopefully put to death.
If death sentences are ordered, rest assured that the enemy combatants’ pro-terrorist lawyers, aided and abetted by their fellow travelers from some of America’s largest law firms, will use every available strategy and tactic to defeat the just, hopefully capital, punishment their clients richly deserve.
When the hue and cry is sounded for “mercy,” it would be well for Americans to remember what happened on June 19, 1947, on the island of Guam.
But first, the back-story.
Early in World War II, the Marine Corps organized a guerilla battalion named after its leader, Lt. Colonel Evans F. Carlson. In the summer of 1942, two companies of “Carlson’s Raiders” attacked Makin Atoll in the South Pacific’s Gilbert Islands. The Raiders’ principal mission was to destroy the Japanese garrison, installation, and supplies. A secondary goal was to make the Japanese worried about similar attacks so they’d reinforce other small Pacific islands, thus spreading their troops thin. (An interesting side note is that among the Raiders was Major James Roosevelt, one of the president’s four sons.)
The story of the Makin Raid has often been told and although accounts differ about some aspects of the engagement and its success, there is no dispute that several Marine raiders didn’t get off the atoll when the main force withdrew.
The Marines were taken to another Japanese-held island, Kwajalein, as prisoners of war. When the island’s commander sought to remove the Marines to Japan, he was told by Vice-Admiral Koso Abe that it would no longer be necessary to transport prisoners to the mainland—from then on, American prisoners of war would be “disposed” of on the island. In other words, the Marine prisoners were to be executed.
That’s exactly what happened.
On October 16, 1942, in a formal ceremony celebrating a Japanese holiday, the Americans were beheaded.
On April 16, 1946, a United States Military Commission was convened in Guam.
On June 19, 1947, the Provost Martial of Guam informed the Marine Corp Commandant that in accordance with the sentence of the Military Commission, Vice-Admiral Abe had been hanged.
A similar fate should await every enemy combatant convicted by a Military Commission at Guantanamo if he is found guilty of having killed a defenseless American.
__________________
For additional information about the events described above, see Record of Proceedings of a Military Commission convened on April 16, 1946, at United States Fleet, Commander Marianas Area, to deal with the cases of Vice Admiral Koso Abe, Captain Yoshio Obara, and Lieutenant Commander Hisakichi Naiki, all of the Imperial Japanese Navy.”
KHALID SHEIK MOHAMMED IS NOT O.J. SIMPSON
At the end of the Supreme Court’s 2005-2006 term last June, the Hamdan decision took a slice out of presidential power by eviscerating the military commissions President Bush had established to try Islamic terrorists. Ostensibly, the Court’s reason was because the tribunals had not been authorized by Congress
In response, only recently did the Administration get around to offering a proposal to Congress to satisfy what the White House thought the Court wanted. From a negotiating perspective, the proposal was a disaster, opening with the offer to provide counsel to accused Islamic terrorists, to allow them to produce evidence, to call witnesses, and to remain silent.
Then, to make matters worse, Bush ran into a guerilla war launched in the senate by alleged Republicans McCain, Warner, Graham, and Collins. Their fatuous notion of what appropriate military tribunals should be did even more damage.
Much posturing and in-fighting ensued, adding yet again to the perception that America was soft and lacked the will to do what is brutally necessary to deal with Islamic terrorists whose every breath is devoted to destroying us.
That perception has now become reality.
On September 27, 2006, the House of Representatives passed the Military Commissions Act [MCA] of 2006. The next day the Senate followed suit with its version, which differed from the House’s only in minor, non-substantive ways. Procedurally, the House approved the Senate version on September 29, 2006. The President is expected to sign the bill immediately.
While Rep. Duncan Hunter (R-Calif.), Chairman of the House Armed Services Committee, where the bill originated, seemed to understand that “[w]e are dealing with the enemy in war, not defendants in our criminal justice system,” and went on to say that “[i]n time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops,” that, and much more, is what he and his colleagues gave us in the MCA. And it’s not just the rules of evidence that Congress and the President have given away.
About the Republican victory in the Senate, Majority Whip Mitch McConnell (R-Ky) similarly acknowledged that “[w]e are not conducting a law-enforcement operation against a check-writing scam or trying to foil a bank heist. We are at war against extremists who want to kill our citizens, cripple our economy and discredit the principles we hold dear—freedom and democracy.” Unfortunately, the MCA belies McConnell’s view of just what kind of an “operation” America is conducting, and contains too many provisions that negate the fact that we are, to quote the senator, “at war against extremists.”
There will be much discussion about the MCA and its many provisions. Liberals will complain that it violates the human rights of those to be tried by military commissions. Conservatives will complain that it provides the defendants with too many procedural rights.
While much conservative criticism will be justified, the overarching calamity of the MCA is apparently still not grasped by Hunter, McConnell, and other Republicans. The MCA has institutionalized the Clintonesque view that accused terrorists, not members of an identifiable regular army, are simply a problem to be dealt with by the criminal law—e.g., the first World Trade Center bombing, Kenya and Tanzania, the U.S.S. Cole—and not a purely military issue to be handled in Department of Defense-conducted proceedings with a minimum amount of procedural niceties.
The MCA, which amends Title 10 of the United States Code to add a new Chapter 47A, consists of seven subchapters. (In this article, unless otherwise noted I will use the original House version [HR 6166] for purposes of discussion, rather than the virtually identical senate version, that was subsequently passed by the House.)
The Senate version contains “Findings,” the obvious purpose of which is an attempt to build on the Hamdan decision’s requirement of Congressional authorization, and, while at it, to establish Congressional supremacy over military commissions:
Congress makes the following findings:
(1) The Constitution of the United States grants to Congress the power “To define and punish ... Offenses against the Law of Nations”, as well as the power “To declare War ... To raise and support Armies ... [and] To provide and maintain a Navy”.
(2) The military commission is the traditional tribunal for the trial of persons engaged in hostilities for violations of the law of war.
(3) Congress has, in the past, both authorized the use of military commission by statute and recognized the existence and authority of military commissions.
(4) Military commissions have been convened both by the President and by military commanders in the field to try offenses against the law of war.
(5) It is in the national interest for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war. (Emphasis added.)
Note that while the Senate’s Findings recognize that presidents have convened military commissions, paragraph 5 recites that “[i]t is in the national interest for Congress to exercise its authority under the Constitution to enact legislation” regarding military commissions. The separation of powers war continues.
In the House version, Subchapter I does make a crucial distinction between “unlawful enemy combatants” and “lawful enemy combatants.” The former are:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
“Lawful Enemy Combatants” are:
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
Thus, Subchapter I does make a clear distinction between regular military forces, as traditionally understood, even in the Geneva Conventions, and terrorists.
This is significant because it objectifies in a Congressionally-endorsed manner that there is a category of belligerent trying to destroy us that does not fit the conventional understanding of “lawful enemy combatant,” and who can and should be treated differently.
However, it does not follow from this distinction that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them. (Subchapter I also defines “aliens” as those persons not citizens of the United States.)
Another anti-terrorist provision of Subchapter I is that although “[t]he procedures for military commissions set forth in [the new Act] are based upon the procedures for trial by general courts-martial,” the latter procedures do not “apply to trial by military commission except as specifically provided in” the MCA. In other words, “[t]he judicial construction and application of [the general courts-martial statute] are not binding on military commissions established under the” MCA. This is important because procedures under the MCA will not be burdened with procedural baggage from general courts-martial, which deal not with terrorist-related offenses, but with garden-variety criminal acts.
Again, however, it does not follow from this that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them.
The third useful anti-terrorist provision of Subchapter I is that “no alien unlawful enemy combatant subject to trial by military commission . . . may invoke the Geneva Conventions as a source of rights . . . .” This is significant for two reasons: it removes a ground for the legal left to stand on in its unceasing litigation against our war on Islamic terrorists, and it eliminates the squishy language from the Geneva Conventions as elements in our treatment of unlawful enemy combatants.
And that is the end of the good news.
There are six other Subchapters in the MCA, three of which need not concern us at the moment:
· Subchapter II—“Composition of Military Tribunals”—deals with who may convene them, who may serve on them, military judges, and trial and defense counsel.
· Subchapter V—“Sentences”—reads as follows: “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be . . . inflicted . . . . The use of irons, single or double, except for the purpose of safe custody, in prohibited . . . . (Emphasis added. Note that the 8th Amendment to the United States Constitution prohibits cruel and unusual punishments.)
· Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA, and commendably they cover virtually every conceivable offense a terrorist could commit. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
That leaves Subchapters III, IV, and VI.
Mostly, Subchapter III—“Pre-trial Procedure—is benign. For example, it explains how charges are to be specified, and that the accused is entitled to notice of them.
However, the other provision of Subchapter III—“Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements”—is the bridge to what begins to sound like the Warren Court’s solicitude for domestic criminal defendants.
Just as in our Fifth and Fourteenth Amendments, applicable to domestic criminals, the MCA provides that no accused Islamic terrorist “shall be required to testify against himself.” Statements obtained by “torture” are inadmissible. (See below for the definition.)
As to other statements, not obtained by torture, the MCD draws a dateline between statements made (1) before December 30, 2005 and (2) those made from that date forward (when the McCain “be nice” Amendment took effect).
If “the degree of coercion” is disputed (as of course it will be) concerning a pre-December 30, 2005, statement, it is admissible only if the military judge finds it: (a) “reliable and possessing sufficient probative value,” and (b) “the interests of justice [yes, that’s what the MCA says] would best be served” by admitting it.
If “the degree of coercion” is disputed (as of course it will be) concerning a post-December 30, 2005, statement, it is admissible only if the military judge finds: (a) “the totality of the circumstances renders it “reliable and possessing sufficient probative value,” (b) “the interests of justice would best be served” by admitting it, and (c) “the interrogation methods used to obtain the statement do not [in the Senate version] violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.”
As bad as many other provisions of the MCA are, this post-2005 provision is by far the worst because it can completely eliminate the use of statements by Islamic terrorists. The effect of this section is to incorporate into the MCA the rights provided to domestic criminal defendants. Thus, if a statement is obtained by interrogation that violates the two virtually standardless “Due Process Clauses” of the Fifth and Fourteenth Amendments—which have freed countless domestic criminal defendants because their treatment did not satisfy criteria such as “the evolving ethics of mankind”—that statement is inadmissible even if it is “reliable and possessing sufficient probative value” and “the interests of justice would best be served” by admitting it.
Worse still, is the Eighth Amendment. The Supreme Court ruled in Helling v. McKinney that, if proved, the following allegation could constitute cruel and unusual punishment under the Eighth Amendment:
[The prisoner] was assigned to a cell with another inmate who smoked five
packs of cigarettes a day. * * * The complaint also stated that that cigarettes
were sold to inmates without properly informing of the health hazards a
nonsmoking inmate would encounter by sharing a room with an inmate who
smoked . . . and that certain cigarettes burned continuously, releasing some
type of chemical . . . . [The prisoner] complained of certain health problems
allegedly caused by exposure to cigarette smoke.
In sum, Subchapter III gives accused Islamic terrorists—torturers, beheaders, homicide bombers—captured outside the United States in such places as Afghanistan, Iraq, Pakistan, and who knows where else—American Constitutional Bill of Rights protection not only against self incrimination, but also against violations of amorphous Due Process “rights” that know no limits even under domestic law.
That brings us to Subchapter IV—“Trial Procedure”—under which our ability to fight the “war against extremists” of which McConnell spoke doesn’t get any easier. Indeed, it gets much more difficult.
Much like Subchapter III, some of the provisions of Subchapter IV are benign.
For example, no one can unlawfully influence the action of a military commission, duties of trial and defense counsel are spelled out, rules are provided for holding sessions of the tribunal and for adjournments, the taking of oaths is specified, everything about voting by the judges is explained. Then there are provisions about keeping a record of the trial, and announcing the sentence (if any).
The remaining provisions of Subchapter III are right out of the ACLU playbook.
Accused Islamic terrorists like Khalid Sheik Mohammed have the right to discovery of witnesses and documents. They can present evidence; cross-examine witnesses; enjoy the benefit of counsel; exercise challenges against the judges peremptorily, and for cause; be immune from double jeopardy; cop a plea; subpoena witnesses anywhere the United States has jurisdiction; and even plead “severe mental disease or defect” that rendered them “unable to appreciate the nature and quality of the wrongfulness of the acts.”
As to “classified information,” under Subchapter IV the prosecutor can request the judge “to authorize, the extent practicable,” deletion of specified items from documents, providing only a portion or summary, or “the substitution of a statement of relevant facts that the classified information would prove.” The qualifying “to the extent practicable” leaves another huge loophole through which any defense lawyer and/or sympathetic judge can pour much classified information into the ready hands of the terrorists.
The disclosure of “sources, methods, or activities” is supposedly protected, but “[t]he military judge may require [the prosecutor] to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.” There is simply no way to know what this means, or how much classified information will pour through this sieve.
To gild the lily, Subchapter IV also provides—as the Supreme Court required for domestic criminal trials in the case of Brady v. Maryland—that the prosecutor must “disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused.” Presumably, as in the other criminal justice system—the domestic one—failure of the prosecution to do so, even unintentionally, could well result in a reversal of any conviction.
Which brings us to Subchapter VI, “Post-Trial Procedure and Review of Military Commissions.”
There are “lesser included offenses,” which presumably can reduce a charge of murder to mere mayhem. After a convicted terrorist is provided with a copy of the trial record, he can challenge the findings and sentence of the military commission and seek a modification. The convening authority, “in his sole discretion,” can do anything he likes about the sentence except increase it.
All guilty verdicts go to a Court of Military Commission Review. From there to the United States Court of Appeals for the District of Columbia Circuit, for appeal on questions of law, i.e., whether all the rules were followed, and consideration of, “to the extent applicable, the Constitution and the laws of the United States.” And that’s not necessarily the end of the line for Mr. Khalid Sheik Mohammed: “The Supreme Court may review . . . the final judgment of the Court of Appeals . . . .”
Naturally, if Mohammed has the right to all these appeals, he’s going to need an appellate lawyer, maybe an entire team, so: “The Secretary of Defense shall . . . establish procedures for the appointment of appellate counsel . . . for the accused . . . .”
If all these appeals fail—predictably, many years after the trial—a death sentence can be commuted by the President. A President Al Gore, John Kerry, or Howard Dean, for example.
According to a recent statement put out by Senate Minority Leader Harry Reid (D-Nev.), the MCA “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” (Emphasis added.) Unfortunately, as I’ve shown above, it does. And in case Reid forgot, Khalid Sheik Mohammed is not an “American,” he is not facing a “trial,” and he is not in a “U.S. Court.” Mohammed, the 9/11 mastermind, is an Islamic terrorist facing a military commission.
Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
For the self-destructive debacle that the MCA is, we can thank a narrow Supreme Court majority obsessed with the fiction of international human “rights,” a White House lacking the backbone to take on Court and Congress while pandering to the latter, a cabal of rogue Republican senators playing their own political games, a democrat senate minority that consistently puts their party over national security.
But they’ve all had help.
The Islamic terrorists’ domestic newspaper shill, The New York Times, on September 28, 2006, published an editorial entitled “Rushing Off a Cliff.”
The editorial lamented that the MCA gave President Bush “the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.” (Emphasis added.)
I wish!
Once again the Times—the engine driving the anti-Bush fantasies of the left in an attempt to defeat the Republicans in November and in 2008—is engaging in reckless hyperbole.
The newspaper cites seven “of the bill’s biggest flaws”: Here they are, in the Times’s own words:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
For openers, there is no reference in the MCA to “illegal enemy combatants.” The category is “unlawful enemy combatants,” a descriptive term recognized by the Supreme Court in its few decisions on the subject.
Second, to repeat what I have quoted above, here is the MCA’s definition of “unlawful enemy combatant”:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States . . . who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
This definitional section must be read in conjunction with a provision of the same Subchapter which provides that the MCA “establishes procedures governing the use of military commissions to try alien [i.e., non-citizen] unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses . . . .” (Emphasis added.)
The Times does not explain how under these definitions “legal residents of the United States, as well as foreign citizens living in their own countries,” could be subject “to summary arrest and indefinite detention with no hope of appeal.”
No hope of appeal? Only to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States.
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
This is absurd, for two reasons. First, Subchapter I provides expressly that “A military commission . . . is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” (Emphasis added.)
Second, while Subchapter I also provides that “[n]o alien unlawful enemy combatant . . . may invoke the Geneva Conventions,” those terrorists are not prisoners of war and thus have no claim to protection under the Geneva Conventions—as even the Supreme Court has recognized. Maybe there is “international precedent” to the contrary, perhaps in France or Sudan, but even if there is, that has no binding effect in the United States. I’m sure that the President will be delighted to know he can “decide on his own what abusive interrogation methods he considers permissible.” Ask McCain if that’s true. Indeed, my comments above make it only too clear that just the opposite is the case, and that an Islamic terrorist can actually litigate the degree of coercion allegedly used on him, while standing on his rights under the Fifth, Eighth, and Fourteenth Amendments to our Constitution.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Yes, there is no habeas corpus for Islamic terrorists. Appeals to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States, will have to suffice. Also, the Times begs the question, positing that those finally convicted after trial and three or four appeals (more than even O.J. Simpson would get domestically) are “wrongly imprisoned people.”
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
Talk about begging the question! Of course the appeals are from the military commissions, because that’s where the trials take place—trials that the Times and their acolytes have been demanding for five years. As to not having a trial, much to the chagrin of the Times and its legal left foot soldiers, the Supreme Court has ruled that alien enemy combatants can be held until the end of hostilities, but that if we are going to try anyone (to impose punishment, rather than mere confinement), we need a better system than the pre-MCA military commissions. One wonders what the Times would have had our military do with the countless prisoners we took during WW II—and they were not even “unlawful” enemy combatants. Neither regular enemy forces nor guerillas are released, if at all, until the end of hostilities.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
Perhaps the Times’s lawyers have not informed their client that for years before the criminal justice revolution of the sixties, even coerced evidence was admissible if it was trustworthy. The newspaper apparently doesn’t understand that coerced testimony can be reliable, as for example when a threat or arm twisting produces information leading to the apprehension of another Islamic terrorist. Sure there was coercion, but it certainly was reliable! As to the definitions, see above, and remember that the accused can challenge the coerced evidence in several different ways.
Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.
So now Dick Cheney is the culprit. Probably because he, unlike the President, is a lawyer.
In the first place, “American standards of justice” are applicable in a domestic criminal court and protect defendants like O.J. Simpson, not in a military commission trying the mastermind of the 9/11 reign of death and destruction on Americans, their property, and our democratic institutions.
Secondly, as I make clear above, there is no “secret evidence”—unfortunately. Is the Times actually saying that we should provide Islamic terrorists with information about the CIA’s “sources, methods, and activities”? As it has already done by revealing our telephone surveillance, money tracking, and secret prisons programs?
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
As to torture, not only is the MCA’s definition much too liberal, but the Fifth, Eighth, and Fourteenth Amendment “due process” protections add even to those. Indeed, the MCA’s prohibition of “cruel, inhuman, or degrading” treatment, thanks to the Bush-McCain 2005 legislation, is more than enough to cover any form of torture. As to “other forms of nonconsensual sex,” whatever that might be, an Islamic terrorist allegedly subject to such treatment can certainly argue that it was, if not “cruel,” then maybe “inhuman,” and if not that, then certainly “degrading.”
None of this bluster, misrepresentation, distortion, and special pleading from the Times is surprising, and none of it should be taken seriously.
On the other hand, what must be taken very seriously is the road we have been sent down by rogue justices of the Supreme Court, inept apparatchiks in the White House, political opportunists in the senate, and terrorist lovers in the media.
As our nation treads that road—with platoons of the legal left and its fellow traveling lawyers in the vanguard—we will see it littered with the road kill resulting from our lost right of self defense against not the O.J. Simpsons of the world, but the Khalid Sheik Mohammeds.
Somewhere in that Big Courtroom in the Sky, Earl Warren must be smiling.
FIVE YEARS OF IMPORTANT NATIONAL SECURITY JUDICIAL DECISIONS
(As of September 1, 2006)
Americans who believe that judicial decisions should be rendered on the basis of what the law is, rather than be regurgitated from a judge’s partisan political intestinal tract, were rightly disgusted by the recent “anti-surveillance” ruling by United States District Judge Anna Diggs Taylor.
Indeed, for the last couple weeks the Internet has been ablaze with condemnations of her screed, something more resembling the script from an ACLU fundraising rally than a legal decision from a life-tenured federal judge.
Taylor’s decision was so indefensible that The New York Times ran a front page article by its legal affairs reporter critical of what she had written: “Even legal experts who agreed with a federal judge’s conclusion . . . were distancing themselves from the decision’s ‘reasoning’.” (Inside quotation marks are mine.) He added that legal experts “said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”
But even though Taylor, carrying water for the left’s sabotage of the nation’s war against radical Islam, tried to undercut this nation’s mortal (and moral!) battle by ruling the president’s electronic surveillance program unconstitutional, and even though countless blogosphere-niks were (rightly) up in arms, Taylor’s ruling is of no legal importance at all.
That’s because virtually every time a district judge interprets or applies a federal statute or a constitutional provision, that decision is reviewed by a United States Court of Appeals and sometimes later by the Supreme Court of the United States.
Unfortunately, however, although several decisions rendered by the United States Courts of Appeal since September 11, 2001, have been responsive to national security concerns, just the opposite is true of decisions from the Supreme Court of the United States.
Elsewhere, I have written extensively about the Supreme Court’s Padilla, Hamdi, Rasul, and Hamdan decisions (see.www.henrymarkholzer.com, in the “Articles” category), and there is no need to reiterate that commentary here because at the moment we’re not concerned with the Supreme Court.
Many of the cases presenting national security issues decided by federal Courts of Appeal since September 11, 2001, arose in the context of administrative immigration (e.g., asylum) and deportation (e.g., overstayed visas), proceedings. Others presented non-constitutional issues.
For example, the “National Security Entry-Exit Registration System” (NSEERS) authorizes the Department of Homeland Security (DHS) to monitor aliens in the United States “who may present elevated national security concerns” because they come from countries that are associated with terrorist activities. In one case, Asad Iqbal Abdul Aziz, a Pakistani by birth and citizenship, was ordered deported by an Immigration Judge and that decision was affirmed by the Board of Immigration Appeals. After that, Aziz went to court claiming, among other things, that his Miranda right (“you have the right to remain silent,” etc.) was violated by immigration agents. The United States Court of Appeals in Aziz v. Gonzales ruled that Miranda warnings are not required in deportation proceedings because they are civil not criminal, and that ordinarily the “exclusionary rule” (suppressing evidence) is equally inapplicable.
Another line of administrative law cases involves the Attorney General’s designation of “foreign terrorist organizations.” For example, in National Council of Resistance of Iran v. Department of State, the United States Court of Appeals for the District of Columbia Circuit (in an opinion by then-Judge, now-Chief Justice, John Roberts) ruled that the plaintiff’s designation by the AG as an FTO had substantial support in the administrative record, and thus there would be no judicial intervention. In Holy Land Foundation for Relief and Development v. Ashcroft, the Muslim organization sued to challenge its designation as an FTO and the government’s blocking of its assets, asserting violations of the First, Fourth, and Fifth Amendments, the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act. Despite this gaming of our Constitution, laws, and judicial system (which our enemies know very well how to do), “substantial evidence” in the administrative record supported the AG’s determination, and because there were no constitutional violations there was no judicial relief. The same result occurred in People’s Mojahedin Organization of Iran v. Department of State, where the United States Court of Appeals for the District of Columbia Circuit ruled, as it had in the other two cases, that the government’s FTO designation was unassailable judicially.
Still, decisions like these have not stopped our adversaries from trying other ways to game the system. They have tried, unsuccessfully, to use the Freedom of Information Act (and claims the First Amendment) to obtain information about post-September 11, 2001, detainees (Center for National Security Studies v. United States Department of Justice)
Because judicial review of immigration decisions concerning subjects like asylum and deportation is extremely deferential to the administrative agency, because the immigration- and deportation-type cases that have reached federal courts of appeal since September 11, 2001 didn’t “make new law,” especially on constitutional subjects, they have not been included in the following discussion.
One important decision, handed down only a few weeks ago, MacWade v. Kelly, involved the Fourth Amendment’s guarantee against unreasonable search and seizure. New York City instituted a program of random, suspicionless searches of subway passengers’ packages, purses, briefcases, etc. A lawsuit was brought alleging that the searches violated passengers’ civil rights. Their complaint was dismissed in the district (trial) court, and they appealed. The United States Court of Appeals for the Second Circuit ruled that the importance of preventing a terrorist attack on the subway triggered the “special needs” exception to the usual requirement of a search warrant.
Another Fourth Amendment case was In re: Sealed Case, emanating from the Foreign Intelligence Surveillance Court, which is responsible for reviewing government requests for electronic surveillance authority in national security cases under the Foreign Intelligence Surveillance Act (FISA). The court had ruled that FISA required the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance was not criminal prosecution, but rather the gathering of intelligence. A higher court—the Foreign Intelligence Surveillance Court of Review—ruled otherwise: it was not necessary for the government to make such a showing. Also, the amendment of FISA by the initial Patriot Act, permitting the government to conduct surveillance of foreign agents if obtaining foreign intelligence is the “significant purpose,” did not violate the Fourth Amendment.
Another constitutionally-based decision was El-Shifa Pharmaceutical Industries Company v. United States, decided by the United States Court of Appeals for the Federal Circuit. The case grew out of then-President Clinton’s Lewinsky-distracting Tomahawk missile attack on an aspirin manufacturing plant in Khartoum, Sudan. The company sued the United States government alleging that the missile strike was a “taking” under the Fifth Amendment’s eminent domain clause, entitling the aspirin-makers to “just compensation.” The trial court dismissed the complaint, and the Sudanese appealed. Putting aside the chutzpa of the claim itself—for the bringing of which the lawyer should have been sanctioned—the court’s ruling was important because it was rooted in Article II of the Constitution, which makes the president Chief Executive and Commander-in-Chief. The Court of Appeals decision ruled that it had no power to second-guess the president’s determination that the aspirin plant was enemy property and whatever interest the Sudanese might have had in not being deprived of their property was outweighed by the president’s power to wage war.
The fourth constitutionally-based decision was North Jersey Media Group, Inc. v. Ashcroft, in the United States Court of Appeals for the Third Circuit. The Attorney General of the United States determined that certain persons might have connections to, or knowledge about, the September 11, 2001, terrorist attacks, and thus their deportation hearings were “special interest” cases which would be closed to the press and others. The district judge granted preliminary relief to the publishers, and the government appealed. The Court of Appeals ruled that the newspapers had no First Amendment right of access to deportation proceedings which, according to the AG, presented significant national security concerns. (The Sixth Circuit, in Detroit Free Press v. Ashcroft, went the other way, ruling that there was a First Amendment right of access to deportation proceedings.)
Two other decisions dealt with the federal statute that Taliban John Walker violated: providing material support to a government-designated foreign terrorist organization.
First was United States v. Hamoud. The defendant was convicted by a jury on several charges, including “material support.” On appeal, he claimed principally that the statute violated his First Amendment right of free association (which is one of the arguments Taliban John made), and that he had a right to challenge the government’s determination that the organization was a “foreign terrorist organization.” The United States Court of Appeals for the Fourth Circuit disagreed, and Hamoud’s conviction was affirmed.
The second case was United States v. Afshari, decided by the United States Court of Appeals for the Ninth Circuit. Afshari and other were indicted under the “material support” statute, and claimed it constituted an unconstitutional abridgement of their First Amendment right to free speech. Like Hamoud, they also claimed they had a right to challenge the organization’s status as a “foreign terrorist organization. The district judge agreed, but the Ninth Circuit reversed.
In Sterling v. Tenet, a former covert agent of the Central Intelligence Agency sued under Title VII alleging race discrimination. The government countered by asserting the “state secrets privilege,” which prevents courts from deciding cases that would require the disclosure of information dangerous to national security. Thus, the district judge dismissed the former agent’s complaint. On appeal, the United States Court of Appeals for the Fourth Circuit agreed, ruling that the materials the agent would have to use to make his case were indeed covered by the state secrets privilege.” The court affirmed the dismissal of his complaint.
There will be many more cases like these because our adversaries, with the aid and comfort provided them by such legal-left co-conspirators as the ACLU, Center for Constitutional Rights, and National Lawyers Guild, will continue their attempt to destroy our system by turning it against itself. While the federal Courts of Appeal have so far stood as a bulwark against these machinations, regrettably a majority of the Supreme Court of the United States since September 11, 2001, has provided a significant amount of aid and comfort to our enemies.
DESTROY IRAN’S NUCLEAR CAPABILITY
In Self Defense The Sovereign State Of Israel Must Act Preemptively
I begin with six indisputable premises
First, Israel is a democratic sovereign state.
Second, it is heir to centuries of rabid anti-Semitism.
Third, in the sixty-some years of its existence, it has suffered countless acts of state and state-sponsored aggression ranging from border incursions to homicide bombings to full-scale military invasions.
Fourth, the rogue regime in Iran, which is the fundamental threat to Israel today, is controlled by anti-Semitic theocrats.
Fifth, Iran’s Hitler-like “president” has loudly and repeatedly waved a potential nuclear sword, promising that the final solution will be to annihilate the State of Israel.
Sixth, for starters, in its most recent campaign Iran has loosed its terrorist puppet, Hezbollah, to attack Israel militarily on the ground and with a barrage of rockets launched into the Jewish homeland.
Facing Iran’s unambiguous nuclear-backed threat, Israel has two options.
Option one is to wait a while before taking preemptive action against Iran, until that rogue nation escalates its attack on the Jewish state—through use of surrogates like Hezbollah in Lebanon, or until Iran actually obtains nuclear weaponry
Option two is that sooner than later Israel reprises its 1981 pre-emptive strike on Iraq’s Osirak nuclear facility, this time hitting Iran.
Which choice is best for survival of the Jewish state?
Our own history provides some guidance.
In self-defense, to protect the United States and its citizens—though often much of our conduct was criticized by the “international community” as being “preemptive” (or what, today, is deprecatingly called “disproportionate”)—we armed the Greek anti-communists; we chased the defeated North Korean army all the way to China; we supported the South Vietnamese, wiped out the Viet Cong, and rained explosive destruction on North Vietnam; we dropped airborne troops into near-communist Grenada; we provided Afghanistan’s Northern Alliance with Special Ops fighters; we put boots on the ground and rained fire from the air to depose Saddam Hussein.
And in today’s war with the radical Islamists we have—righteously and in self-defense—kidnapped, incarcerated, tortured, assassinated, and killed key operatives of al Qaeda and other terrorist organizations.
We have done these things—some overtly, some covertly—to defend the United States and its citizens from those who want to see us at least subjugated and, preferably, dead.
Yet today the tiny State of Israel is told that the “international community” is opposed to Israeli preemptive military action against Iran.
The Israeli’s are told that “diplomacy” and “compromise” are the “civilized” options—that preemption is verboten, that self defense has “proportionate” limits.
The Israelis are told that “international law” would not support a preemptive strike on Iran.
To the extent international law has any meaning at all in the context of any war, that system is impotent to deal with today’s terrorism because it is waged by states and their irregular surrogates (like Hezbollah) who disdain law of any kind. The only law they believe in is Sharia—and what comes from the barrel of an RPG or the tube of a missile launcher.
In the context of aggressive state-sponsored war, notions of international law should not deter Israel because those notions are, simply, a travesty.
In the Twentieth Century alone, German Nazis, Japanese Imperialists, Italian Fascists, Soviet Communists—and let’s not forget the North Koreans and the North Vietnamese—unhesitatingly initiated attacks against their neighbors.
“International law,” and its prattling proponents—impotent intellectuals in academe and The Hague—could not stop, let alone prevent, the extermination of Jews, the Rape of Nanking, the bombing of Ethiopia, the starvation of Ukraine, the sacking of Seoul, and the slaughter of innocents during Tet.
When the State of Israel by preemptive strike against Iran defends itself in this increasingly hostile, dangerous, and murderous world, much of which is devoted to destruction of the Jews, Israelis will be keeping faith with their people and their posterity: Jewish survivors of centuries of mindless hatred, oppression, murder, and genocide.
Not only is it not immoral for the Israelis to defend themselves by a preemptive strike on Iran, it is a moral imperative!
“Never Again!” is a promise which must be kept.
DEATH OF A NATION
Before the old and new media begin humming about the body blow several justices of the United States Supreme Court have apparently delivered to this nation’s very existence in today’s Hamdan decision (which I will comment on after reading the lengthy opinion), I want to lay the blame on those responsible.
On Gerald R. Ford, for appointing Justice John Paul Stevens.
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