Blue Mass Group

Reality-based commentary on politics.

Rule of Law awaits better political climate

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Glenn Greenwald reminds us of the Right-wing wailing and Left-wing accolades that greeted AG Holder’s announcement a year ago that KSM and four other Guantanamo inmates would face criminal trials. Greenwald questions the depth of Democrats’ commitment to the Rule of Law:

Obviously, those who screamed bloody murder over Bush/Cheney Terrorism policies but now justify or at least acquiesce to the same policies when implemented by Obama have serious issues with partisan loyalties trumping honest advocacy.  But it’s when the Obama administration reverses itself — such as with the torture photos — that one’s intellectual honesty is most conclusively tested:  one’s beliefs and principles can’t shift with Obama’s reversals if they’re to be meaningful or credible.  The same issue applies here:  shouldn’t anyone who defended Holder’s original decision on the ground that it was compelled by the Constitution, the rule of law and our values now vocally denounce Obama for his profound violations of those same doctrines?

So is it principles that are important, or is it supporting the Democratic President?  

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  1. If it was only or two issues, it would be tolerable. On so many fronts, however, Obama’s ultimate actions have proven almost indistinguishable from those of Bush. He’s obviously a smarter guy, a better speaker, etc, but he caves so easily and often on matters of principle that his assets count for virtually nothing.
    It’s a real shame.

  2. And without the “rule of law not of men” what protection is there, from Courts and a constitution?

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    p>See President Skate

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    p>I had hoped that THIS president would protect and defend the rule of law.

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    p>I recall John Adams defending the very British soldiers who opened fire in Boston…to defend the rule of law.

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    p>THAT was then, this is now.  Sadly.

  3.  Whatever happened to the art of the Bill of Rights that granted him a ‘Fair and Speedy ” trial?
    If this keeps up they may have to let him go.

    • They can’t give him a trial, because much of their evidence would not be admitted because it was obtained by, euphemistically speaking, coercion.

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      p>They can’t let him go, because he perpetrated an enormous terrorist attack on the US, and we would likely prefer that he not be given an opportunity for an encore.

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      p>So, he is stuck in between.  It was always obvious that this would be the case.  The best hope is to use one of these military tribunals where the, um, tainted, evidence can be admitted, and hope it flies.  

      • KSM has just as much right as the rest of us to not have ill-gotten evidence used against him.  They MUST let him go if they cannot meet their burden by constitutional means.  If that means walking on a technicality then maybe the authorities should have thought of that BEFORE they ran roughshod over the rules.

        • It is obvious that this was always a security, not a legal, decision.  They guy planned the 1993 WTC, the Cole, and 9/11.  I’m also not entirely comfortable with the notion that this was a matter for the criminal justice system.

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          p>But one thing I do note is that the administration looks like dimwits on this.  Really, all they needed to do was make a decision and proceed.  But two straight years of hemming, hawing, and throat clearing makes them seem like they dither rather than make hard decisions.

      • Coercion? I think the word you’re looking for is torture. You know, what the Bad Guys use in their attempts to subvert Democracy. The kind of things that Americans won’t stoop to, because we’re so noble and righteous. Let’s call it what it is, and deal appropriately with the people who did it and the ones who authorized it.

    • Mohammed was captured in Pakistan  in March 2003 and was held at secret CIA prisons overseas until he was transferred in September 2006 to Guantanamo Bay. He is held there with a group of high-value detainees at a small, highly secure facility.

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      p>The Constitution only applies on American soil, which KSM has never touched.  The whole reason the American Gulag was built on Guantanamo.

      • As noted by Glenn Greenwald:

        First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush, which, by itself, makes clear how false is the claim that the Constitution applies only to Americans.  The Boumediene Court held that it was unconstitutional for the Military Commissions Act to deny habeas corpus rights to Guantanamo detainees, none of whom was an American citizen (indeed, the detainees were all foreign nationals outside of the U.S.).  If the Constitution applied only to U.S. citizens, that decision would obviously be impossible.

        The justices disagreed over exactly the issue you’ve raised, but the majority held that the Constitution does apply to treatment of Guantanamo inmates:

        What divided the Boumediene Court was the question of whether foreigners held by the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy Constitutional protections.  They debated how Guantanamo should be viewed in that regard (as foreign soil or something else).

        Here’s another view of the issue:

        The Constitution is a document that created the federal government, and in so doing, specified powers granted to and denied that entity. It does not apply to a person or group of people, but rather to the government itself. In saying above that the Constitution applies to terrorists, truck drivers, etc., the idea is conveyed that the Constitution applies to all people who have any dealings with the federal government.

        The cotton picker in Uzbekistan couldn’t care less about the U.S. Constitution, and taken literally, it does not really apply to him. But say this person vacationed in Pittsburgh, or say he visited the local American embassy. Having any interaction with agents of the federal government makes the Constitution relevant to him, since that governing document applies to the federal government and those who comprise it. Whether the person be a cotton picker, an “insurgent,” or anybody else, the federal government is bound by the constraints of the Constitution, and in attempting to administer legal punishment to another person, must give due process and protect other basic human rights – rights which the Declaration of Independence makes clear are given by the Creator to every individual.

        Also note that the Geneva Convention protections apply to any person under the control of a signatory nation. The US is a signatory. KSM and the rest of the Guantanamo inmates are certainly under US control, and subject to Geneva Convention Protection, as the Defense Department has acknowleged. Torturing them is a violation of the Conventions, and as such is a violation of US law.

        • The Bush administration claimed that these guys had zero rights protected by the Constitution; the alternative position was that they were entitled to all of the protections that would apply to an American citizen arrested on American soil and prosecuted for criminal activity perpetrated here.  Neither of these positions were adopted, and instead the court landed in the muddled middle.

          • You seem to be saying that SCOTUS endorsed withholding some Constitutional protections from Guantanamo inmates. Please give us a link to the language they used to do that.

            • that came down in 2008.  Kennedy for the majority held that these guys have habeus corpus rights, which means the right to challenge their detention in some sort of tribunal.  It did not give them a right to a criminal trial in a civilian courts with the protection of the entirety of fourth, five and sixth, and eighth amendment jurisprudence.  The statute that got overruled was amended last year; there is a new military commissions act.

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              p>But Obama doesn’t want to use the new military commissions act; that would offend liberals.  He also doesn’t want to try the guy in a US district court; that would offend Chuck Shumer and most of the Congress (especially the new one).  So, lest he offend someone, the President does nothing at all.

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              p>There have been multiple instances along the way where this administration seems to prefer dithering (oops, I mean careful study and analysis) to actually making a decision.  Though this is the extreme opposite of a particular vice of the Bush administration, it is not necessarily a virtue.

              • Dithering is a polite word for it. In the instances of the torture photos and trials for KSM et al, it goes to the level of waffling and beyond. I wonder how Holder feels after taking a controversial stand, only to see his boss move action on it to the far-back burner.

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                p>Is the 2008 SCOTUS decision you’re referring to the same one (Boumediene v. Bush) Greenwald talked about? If so, there’s this:

                We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.

                Habeus corpus is the only issue they addressed in that decision.

      • How in the world would President Obama have done anything else. The talk about a big NYC talk was fool’s talk, especially after every local politician came out against it. This one’s getting kicked down the road till after 2012 (right up there with closing Gitmo).

  5. This problem was created by decision of the prior administration to torture this individual. The reason he can’t be prosecuted is that the evidence against him is virtually all tainted — it was forced from him by torture.

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    p>The problem that President Obama inherited, therefore, is what to do with him. I think he ought to be released, and I think that he is a very real security threat if that happens.

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    p>In a more perfect world, that would be an easier choice for President Obama — he would say “The prior administration practiced a formal policy of torture. The evidence against him was obtained by torture; we must release him”, and a nation committed to the rule of law would applaud.

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    p>Sadly, we are no longer a nation committed to the rule of law.

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    p>I do think this sad episode illustrates why Richard Cheney and George W. Bush should be prosecuted for war crimes. This situation with Khalid Sheik Mohammed is just one of the many horrific impacts of the crimes perpetrated by these two men.

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    p>I remained convinced (or at least hopeful) that Mr. Cheney and Mr. Bush will be charged, prosecuted, convicted, and incarcerated by a foreign government if the US government fails to do so.

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    p>Our own war criminals must not be allowed to go un-prosecuted and unpunished.

    • Everything was essentially forgiven and forgotten after that. Obama inherited Bush’s extraconstititional  toolbox, and seems to like all the new powers just fine. Secret prisons, military tribunals, torture, drone attacks with civilian casualties, mercenaries- can we say with confidence that he has forsaken a single one of Bush-Cheney’s objectionable policies?  

    • I’m not so sanguine about simply releasing him, as I knew a lot of people who were victims of his last escapade.  But you are largely correct here.

      • For better or worse, Constitutional protections and the rule of law are not suspended by anyone’s having known some victims.

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        p>If the government has legally-obtained evidence that KSM and the others are guilty of crimes, they should be prosecuted. If there is insufficient untainted evidence to convict them, they should go free. Keeping them locked up is tantamount to saying “we know these guys did something really bad, but we can’t prove it.” If that is allowed, we might as well not have courts in the first place.

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        p>I am not ‘sanguine’ about releasing them, either, but locking people up indefinitely without trial is not a slippery slope; it’s a cliff.

        • That all rests upon the assumption that this was strictly a matter for the prosecuting US atty in SDNY.

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          p>For instance, setting aside for the moment the evidence that came from him directly and is therefore tainted, a fair amount of whatever other evidence there is must necessarily have come into our hands through clandestine services and military operations.  That is to say, there would be serious problems with a federal court criminal trial even if he had not been subject to torture.

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          p>I am not at all confident that a civilian criminal court is the best place to deal with that kind of case.

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          p>In addition, I don’t think any American President could realistically say to the American people: “Yes, we know this guy was the brains behind 9/11, and that he would do it again, but shucks, we have to let him go because a prior administration permitted torture as an interrogation technique.  So, I’ll just apologize in advance to the victims of the next attack.”

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          p>

    • In a more perfect world, that would be an easier choice for President Obama – he would say “The prior administration practiced a formal policy of torture. The evidence against him was obtained by torture; we must release him”, and a nation committed to the rule of law would applaud.

      Sadly, we are no longer a nation committed to the rule of law.

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      p>If we replace KSM with a British soldier with similar evidence during the Revolutionary War, would we have released him? How about a Japanese or German soldier with similar atrocities during WWII, would we have released him and applauded as a nation? If we had the trigger man from the Marine barracks explosion in Beirut, Timothy McVeigh, Jim Jones or any other person who caused the deaths of many Americans, do you really think we “as a nation committed to the rule of law would applaud” the release of any of these men due to the use of a controversial interrogation method?

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      p>I can’t think of a time.

      • You’re twisting yourself into a pretzel.

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        p>We tortured these men. The principals (Richard Cheney and George W. Bush, Vice President and President of the US at the time) have said so. The documentary trail is in the possession of the DOJ.

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        p>You seem to forget (or ignore) that we successfully obtained the evidence for, prosecuted, convicted, and punished German and Japanese soldiers and commanders for war crimes without torturing them. They were the torturers, not us.

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        p>That was the difference between us and them. Remember?

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        p>We did not torture Timothy McVeigh. We were able to prosecute and convict him anyway.

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        p>My America does not torture

        • Multiple terrorists were prosecuted and convicted following the first WTC bombing – all in the criminal justice system. None were tortured, AFAIK, and no military tribunals were created or used. That attack, if it had gone according to the terrorists’ plan, would have killed more people than 9-11 did.  

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