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Gayle in MD
11-20-2009, 01:52 PM
[quote]
Holder's reasonable decision
Correction to This Article
The Nov. 20 op-ed by Jim Comey and Jack Goldsmith said that Attorney General Eric Holder sent to military commissions five suspects charged with bombing the USS Cole. Holder did send five detainees to be tried by military commission, but only one was previously charged in the Cole bombing.


By Jim Comey and Jack Goldsmith
Friday, November 20, 2009

Reasonable minds can disagree about Attorney General Eric Holder's decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials.

Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.

A trial in Manhattan will bring enormous media attention and require unprecedented security. But it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammed's nephew Ramzi Yousef attacked the World Trade Center. If al-Qaeda could carry out another attack in New York, it would -- a fact true a week ago and for a long time. Its inability to do so is a testament to our military, intelligence and law enforcement responses since the Sept. 11, 2001, attacks.


In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden's driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.


One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions' validity. This uncertainty has led to many legal challenges that will continue indefinitely -- hardly an ideal situation for the trial of the century.

By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder's critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including "shoe bomber" Richard Reid; al-Qaeda agent Jose Padilla; "American Taliban" John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant's ability to raise irrelevant issues and tightly controlling the courtroom. Moussaoui's trial was challenging because his request for access to terrorists held at "black" sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge labored to control him. But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court.

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor's justice.

The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed, but they help explain the attorney general's related decision last week to consign five men accused of attacking the USS Cole to a military commission. Holder indicated that he was doing so in part because the Cole was a military target outside the United States, but that reason does not hold up. The Pentagon was a military target, many aspects of the Sept. 11 attacks were planned abroad, and the Cole attack is already the subject of a federal indictment in New York.

It is more likely that Holder decided to use a commission system still learning to walk because the Cole case is relatively weak and will benefit from the marginal advantages the commission system offers the government. It is also likely that the Justice Department will decide that many other terrorists at Guantanamo Bay will not be tried in civilian or military court but, rather, will be held under a military detention rationale more suitable to the circumstances of their cases.

These decisions have already invited charges of opportunistic forum shopping. The Bush administration, criticized on similar grounds, properly explained that it would use whatever lawful tool worked best, all things considered, to incapacitate a particular terrorist. Holder's decisions appear to reflect a similarly pragmatic approach.

Of course, the attorney general made a different call on Mohammed than did the Bush administration. The wisdom of that difficult judgment will be determined by future events. But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.
<span style='font-size: 11pt'>
Jim Comey, a deputy attorney general and U.S. attorney in Manhattan during the Bush administration, is general counsel of Lockheed Martin Corp. Jack Goldsmith, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is on the Hoover Institution's Task Force on National Security and Law.


<span style="color: #000066"> [size:20pt]No one is better at creating outrage over imaginary injustices or threats than the modern-day right-wing.

G.
</span> </span>

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G.

pooltchr
11-20-2009, 08:26 PM
This would be another instance where I don't agree with a position taken by the Bush administration. I have no problem disagreeing with anyone when I think they are wrong.

It does, however, put some people in the unanticipated position of being forced to agree with something coming out of the Bush administration, doesn't it?

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Steve

LWW
11-21-2009, 08:42 AM
This is moonbat deception at it's best.

Out of over 100 attorneys that worked under the Bush admin they have found 2 tht agree with Holder ... and from that deduce that "Bush's legal folks" agree with this idiocy.

If this were the opinion of "Bush's legal folks" in reality, then "Bush's legal folks" would have followed this path.

The only other thing that can be determined from this line of thinking is that if "Bush's legal folks" actually HAD followed this path ... the Obamatrons and dembots would have screeched at hypersonic levels on how Bush was wrong.

But, again, we must forgive them. The parrots only know the language they are exposed to.

LWW

Gayle in MD
11-21-2009, 01:44 PM
<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body"> More on Mil Coms to Come
by Deborah Pearlstein

Lest anyone think last week’s pair of hearings were Congress’ last word on the question of military commission trials, the House Armed Services Committee has already scheduled it own hearing on reforming the Military Commissions Act. The July 16 witness list features the head lawyer from each of the armed services (Army, Navy, Air Force, Marines).

Also, in keeping with Congress’ stepped up pace on these issues, there are at least some hopeful signs of push back from the security community itself against Congress’ ill-considered decision a few weeks back to preclude the President from transferring any of the Gitmo detainees to the United States. <span style='font-size: 17pt'>A star-studded list of military and intelligence community experts sent a public letter to Congress last week arguing that finding ways to transfer some detainees to the United States is essential to closing Gitmo – which is itself a goal that remains at the core of U.S. national security interests. Among the signatories: Brig. Gen. Mark Kimmit (Deputy Director of Operations in Iraq during Operation Iraqi Freedom); Phil Zelikow (State Department Counselor in the G.W. Bush Administration); Bob Hutchings (head of the National Intelligence Council also under G.W. Bush); Ali Soufan (former FBI agent who famously testified to the ineffectiveness of torture in interrogation); and many more. I haven’t seen I haven’t seen a link to the letter anywhere, so I’m pasting the full text as emailed to me after the jump.

July 10, 2009

A message to Congress from National Security and Terrorism Experts:
Blocking the government from bringing any Guantanamo detainees to the U.S. is unnecessary and harmful to our national security. We do not presume in this statement to address all of the complex issues surrounding the detainees currently held at Guantanamo Bay. However, the undersigned national security and counterterrorism experts agree on the following:
• Closing Guantanamo will be a net benefit to our counterterrorism efforts.
• This will likely require bringing some terrorists to the U.S. for trial, detention, or, if appropriate, resettlement.
• America should not be afraid to bring Guantanamo detainees to the U.S.
Transferring some Guantanamo detainees to the U.S. will aid the fight against terrorists. </span>
For millions of people around the world, Guantanamo represents the excesses of post-9/11 policies and reportedly has been a recruitment boon for violent extremists. Closing Guantanamo will eliminate an ongoing source of propaganda for terrorists’ efforts to generate sympathy and recruit supporters.
America has a long history of bringing terrorists to justice in our courts. Some Guantanamo detainees can be prosecuted for crimes in US courts, undermining the terrorists’ myth that they are “holy warriors” and revealing them instead as criminal thugs. De-glamorizing terrorists in this way undermines their recruitment efforts.
Nearly 60 detainees were already cleared for release by the last Administration, some as long as six years ago, but remain in Guantanamo awaiting agreement from any nation to admit them. Countries have indicated an unwillingness to resettle non-threatening detainees if the U.S. blocks any from coming here. Finding ways to resettle some detainees in the U.S. is essential to closing Guantanamo.

America is capable of holding terrorists securely in U.S. prisons.

As a recent Justice Department fact sheet noted, there are currently 216 inmates in federal prisons for crimes related to international terrorism, including the masterminds of the first World Trade Center bombing, the terrorist who plotted to bring down multiple US airliners, and terrorists who planned to blow up bridges and tunnels in New York. No terrorist has ever escaped from a U.S. prison.
America is strong enough to bring terrorists to justice, detain those who should be detained, and release those who should not be detained.

Congress, trust the strength of our system and steadfastness of the American people.

</div></div>

http://opiniojuris.org/2009/07/12/more-on-mil-coms-to-come/

jayalley
11-21-2009, 08:28 PM
Gayle,

They now have a Holocaust Denial forum/thread on Amazon...and I thought of you.