For many people, the idea of trying the man who admitting to plotting and funding the 9/11 attacks is mouth-watering. After 8 1/2 years, those who lost family members, friends, loved ones, and Americans in general will finally get the justice we craved so much it's lead us into two wars. So when I read this I was a little surprised.
Apparently despite being in government himself, our buddy Lindsey has little faith in our criminal justice system. According to Graham and some of his collegues, trying Khalid Sheik Mohammad is too important to follow our Constitution. They believe that since we are at war (illegal war without a congressional declaration), KSM is equivalent to a soldier in the battlefield and should be tried by military tribunal. Not only should it use a military court, but it should use the "Military Commissions Act of 2006," adds John McCain.
I'll give you a second to wipe the tears from your eyes over the laughter that argument caused.
Let's look at this argument piece by piece for those who cannot see its absurdity. First off is the idea of these men as POWs. Though I quipped about this above, it's really just that simple. If Lindsey wants them tried as POWs he has to only do one thing: get a true declaration of war from congress. Of course this brings its own problems when you fight a war against a tactic. Yet until we have a true declaration, these men must be treated as foreign nationals. Judge Nap really says it better than I ever could in this article.
To get around this there is the presidential extra-constitutional label of "enemy combatant." But of course the foundation for this is rooted in the Unified Theory of the Executive. As I have written earlier I urge everyone to understand this constitutional theory to see just how insane it is. The federal government has no "extra-constitutional" powers. Why even have a constitution if it can be expanded without precedent or textual foundation?
Secondly, we can look at Sen. McCain's call for use of the MCA. For those that know nothing about the MCA here is quick list as to why it is the authorization for the biggest kangaroo court in US history. The list alone should make everyone cringe. To add to this insanity the SCOTUS has ruled in Boumediene v. Bush that "enemy combatants" have Habeas Corpus rights, yet even after the trial the government can still indefinitely detain them.What honor are we paying to the victims of his crime, to the soldiers whose lives have been lost fighting against tyranny like this? I know they want justice, but all the MCA creates is what most government gives you: the illusion of justice and security.
The real terror that comes from this is not what will happen to KSM or his comrades. It is the precedent that this will set should Graham and his pals get their way. What this all ties into is the use of "enemy combatant" labeling. Despite what they might think, just because we call it a war doesn't mean it is. As stated above, war must be officially declared before those legal rules can be applied. The creation of the "enemy combatant" status circumscribes legal foundations to strip individuals of their rights. Once your rights are stripped from you, you can then be sent to a military commission where you and your lawyer -- should you even receive one --are denied access to evidence being used to bring up charges that can even end with a sentence of execution.
What Graham is trying to do, whether inadvertently or not, is set a precedent where all people suspected of terrorism and jailed in our "War on Terror" are tried by only military tribunal. If terrorism is a military matter then why was Tim McVeigh not tried in a tribunal? Or more recently, the Dr. Tiller murderer? Both of these men carried out actions which match the criteria of terrorism, yet both were brought up on premeditated murder charges, tried in civilian court, and convicted. A crime is a crime; motivation should not be brought to bear when determining how to try these cases.
I suspect that Graham wants this because he knows, like any defense lawyer, that coerced evidence is inadmissible in criminal court. When you waterboard a guy 183 times in a month, it's easy to say that maybe his confession isn't on a solid foundation. What better way to deny any further investigation into both the governments failures that lead to 9/11 and the policies of torture that followed then to make the evidence used against KSM unknown and classified?
Personal feelings aside, Graham seems to miss the entire point of bringing these criminals to trial. What is important is why we have trials to begin with: to remedy a tort action from one actor to another. Graham feels that this can only be accomplished by gutting our legal system so exact his venetta against terrorism. While I can admit New York City might not have been the best choice for emotional and security reasons, Guantanamo is most definitely not the answer.
So, can someone tell me if Thomas Jefferson (Judge Nap's favorite) offered Constitutional protections and Jury by Trial to the Barbary Pirates, whom we also fought an undeclared war with?
You might also be interested in what Jefferson told John Adams about the Pirates. Their reason for war and enslaving hundreds of thousands Christian Europeans (including Americans) was not due to American "Occupation" on the high seas or the Barbary Coast.
Jefferson wrote:
“We took the liberty to make some inquiries concerning the Grounds of their pretensions to make war upon a Nation who had done them no Injury, and observed that we considered all mankind as our Friends who had done us no wrong, nor had given us any provocation. The Ambassador answered us that it was founded on the Laws of their Prophet, that it was written in their Koran, that all nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as Prisoners, and that every Musselman who should be slain in Battle was sure to go to Paradise.”
I agree with Ron Paul. We should listen to our enemies, but let us not cherry-pick their grievances against us. Adam Gadahn, the so-called American Al-Qeada, has said the attacks on America will stop if the nation converts to Islam.
Yes but again if you look at that there is constitutional authorization for the federal government to do that. Article 1 section 8 states gives congress the ability "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations" Therefore he is not extending the powers of the government to detain, torture, and convict people we think are bad guys.
Not only that but you again are discussing a completely different set of laws. Any laws on the high seas falls under Admiralty Law, i.e. the captain of the ship is the unquestioned ruler. So merchants and military vessels that are attacked by pirates are up to their own discretion whether or not to engage and subdue them.
Do I think KSM is a good guy, of course not, but like all mass murderers they should have their day in court, a real court. As I stated before, its seemed that the courts were okay for Tim McVeigh and the 1993 WTC Bombers, but now for some reason it isn't. Emotional reactions to crime cause fool-hardy discisions. There is an old saying that bad precedent creates bad law and this is a shining example.
It is not just an american right but a human right that all those accused of a crime be tried before and impartial jury and given a fair trial. Its what makes us better then them, for if we give into our emotions, to steal a phrase, then the terrorist win. When Washington captured 1000 Hessians he was asked how the should be treated. He repsonded: "Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren..."
As for you Adam Gadahn reference, there are crazies everywhere. Just like people who shoot abortion doctors, or people who think you can pray the gay away. The difference is that by occupying their land, blasting their beliefs over the media (even in a negative connotation), and giving them a spotlight it give legitimacy to fanatics and spurs them to believe that they are actually affecting the everyday American.
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