Trying the Terrorists

This big news this weekend is that Attorney General Eric Holder decided to try some of the Al-Qaeda terrorists in U.S. Federal Courts. One of the people that will be tried is the person the government believes masterminded the attacks on 9/11/01. I think Holder's decision is a courageous and wise decision and I wish he would extend it to cover all the alleged terrorists that we hold in custody.

I have some thoughts about this decision.

1. It is my belief that this is the best way to defeat the terrorists. Al-Qaeda sees itself at war with the West and they want to west to react militarily so that the West overreacts and muslims respond by joining Al-Qaeda. Why would we want to play by the rules? I think treating Al-Qaeda like criminals will defuse the myth that they are super villains and deflate their standing.

It is my firm belief that the best way t defeat them is to use the institutions that enshrine the values of our democracy. Our ideals and values are stronger and more enduring than any bomb. Demonstrating our values in action before the world(friend, enemy, and skeptical) will do more to come closer to victory then any military action.

2. I do not understand the objections to the Attorney General's decision. I no see no security threat. Our courts and police have handled plenty of terrorists and other dangerous criminals. The Federal courts have successfully prosecuted the first world trader center bombers(in New York City), Eric Robert Rudolph, the Oklahoma City Bombers, and 20th hijacker Zacarias Moussaoui. All of these trials went off safely and without any security disruption.

As for the fear of terrorists being released on a technicality; I think that fear is is misplaced. A "technicality" usually means the police or the prosecutor were sloppy. On a case as important as one involving Al-Qaeda, we would want our police and prosecutors to give their best and most detailed effort.

I also don't buy the threat of losing an intelligence resource. If there are safety considerations about an informant then our government contains plenty of people with expertise in providing security to witnesses. Otherwise the chance to public bring Al-Qaeda terrorists to justice and hold them to account in front of the whole world is worth the risk to our intelligence resources.

The U.S. effort against Al-Qaeda has suffered from too many self inflicted wounds. It is time that the U.S. anti-terrorism efforts earn a victory by upholding U.S. values and the institutions that uphold those values. Attorney General Holder's decision is a good first start.

Elections Have Consequences

The Senate joined the House and today passed the Matthew Shepherd hate crimes legislation. The bill was attached to a defense appropriations bill and 58 Democrats and 9 Republicans voted for the bill. Russ Feingold(D-WI) opposed the bill because of elements relating to Afghanistan in the defense appropriations section and Robert Byrd(D-WV) was not present to vote.

Also from the hill today comes word that the healthcare bill that goes to the Senate floor will probably have a public option. Most moderate Democrats appear mollified by the knowledge that they will have a chance to vote to strip the public option provision. If a public option is in the bill then its opponents need 60 votes to strip it out of the bill, and if it is not included proponents need 60 to insert it. This news makes it very possible that the final bill will include some form of a public option.

This is good news and a reminder of why many of us worked, contributed money, and voted for President Obama and the Democrats.

Justice in America

Legal authorities in Switzerland caught film director Roman Polanski and are holding him for extradition back to the United States. After pleading guilty to raping a 13 year old girl, Polanski fled after a plea deal fell through. A strange combination of Hollywood types and neo-con columnists in the Washington Post are defending Polanski. In bit of glaring obliviousness Woody Allen is among those defending Polanski.

There may be legal reason that might mitigate the issues that surround Polanski's sentence. That is why we have lawyers and appellate courts; to argue and decide these cases. However, we should not lose sight of what he confessed to doing. Polanski admitted that he gave a 13 year old girl a combination of wine and quaaludes and then raped her. Not only is this illegal but it is morally reprehensible. There could very well have been misconduct on the part of the judge and prosecutor, and if there is then Polanski's lawyers have a professional and legal obligation to bring any possible misconduct before the court in an effort to defend him. What is not needed is a bunch of morally oblivious Hollywood and Washington elite defending the indefensible.

Meanwhile in Texas, Governor Rick Perry(R-TX) fired 3 members of the State Forensic Commission. The commission was scheduled to listen to evidence related to the case of Cameron T. Willingham but the meeting had to be cancelled. In an article in the New Yorker, David Gann makes a very compelling case that when the state of Texas executed Willingham they executed an innocent man.

In Washington D.C., Federal District Judge Colleen Kollar-Kotelly granted a habeas petition filed by a Kuwati citizen named Fouad al-Rabiah. In her ruling, Judge Kollar-Kotelly declared that American interrogators tortured al-Rabiah even though they had no evidence that he was guilty of anything more then being in Afghanistan during the U.S. invasion. In fact her ruling seems to indicate that U.S. officials knew his torture induced confession was unreliable but they held him in custody anyway. In other words, we tortured a man we knew was innocent.

In the U.S., if you are rich, powerful, and famous then there are plenty of rich, powerful, and famous people who will defend you. However, if you poor or of the wrong skin pigmentation then there is no greater crime you can commit then to be innocent when the government thinks you are guilty.

We Have the Capability

Glen Greenwald writes about a report that concludes that U.S. Federal Courts are completely capable venues for the trying and convicting of terrorism suspects.  Sadly, I have come to the conclusion that many of those who take oaths to defend the constitution believe that you can't follow the constitution and defend it at the same time.

Greenwald briefly touches on the argument that some terrorists are too dangerous to release but our conduct prevents them from getting a fair trail.  My own is that I don't know why we are quick to excuse sloppy work.  The are serious consequences when our government does a alck a*s job.  However we the people bare the ultimate responsibility.  If our government's refusal to follow the constitution puts us in more danger then we need to demand they follow the constitution and uses the tools that the constitution provides.  Today's report demonstrates that it is possible to follow the constitution and still go after terrorism.   

If we can't trust our government to put forth its best efforts on the most serious issues of the day(such as terrorism) then we have to live with the consequences.  The answer is not to excuse sloppy work but to demand that our government's actions match its words when it comes to torture and the constitution.

U.S. Threatens UK Justice?

Binyam Mohamed is a former resident of the UK and is currently a prisoner at Guantanamo.  Mr. Mohamed was arrested in Pakistan because British and U.S. intelligence thought that he was an accomplice in the Jose Padilla "dirty bomb" plot.  In an effort to extract a confession, Mr. Mohamed was sent to Morocco and Afghanistan through extraordinary rendition where he was tortured.  In early 2003, the U.S. imprisoned Mohamed in Guantanamo.  In May of 2008 Mr. Mohamed was charged in the Padilla plot but the US withdraw the charges in October.  Read a good summation here. 

In the UK, Mr. Mohamed's attorneys filed a motion to gather information from the UK government about their client's treatment.  Two UK high court judges released a summation of  Mr Mohamed's treatment that was based on information the U.S. shared with UK intelligence agencies.   The judges ruled that the evidence indicated that Mohamed was tortured or treated in a cruel and inhuman fashion.

However, the judges redacted that summary at the request of UK Foreign Minister David Miliband.  He argued that disclosing the information might harm UK security.  UK Channel 4 news acquired letters that US State Department legal advisor John Bellinger wrote to the UK Foreign Office that says that disclosure of the information about Mohamed's torture could threaten " the U.S.-UK intelligence sharing relationship, and thus the national security of the UK."

The Obama administration currently supports the actions of the previous Secretary of State and her legal advisor regarding this case.  That is simply an unacceptable position.  Hiding our conduct at Guantanamo is not protecting vital state secrets; it is covering up a crime.  President Obama has so far done a good job stepping U.S. policy back from the criminal excesses of the previous 7 years.  However, he needs to go further and do as the UK judges recommend and put the information about Binyam Mohamed in the public domain.

Andrew Sullivan  and David Rose at Vanity Fair do a good job reporting on this story.

We Have Lost..

The War on Terror.  After the convening authority of the military commissions Susan Crawford said that we cannot prosecute alleged 9/11 20th hijacker Mohammd al-Qahtani because we tortured him it is clear that all we can do is try not to lose.  We sold our soul and got nothing in return. 

National Security Courts

Hilzoy has a post proposals that are floating around about creating a new legal system to try terrorists.  With Obama pledging to close Guantanamo something has to be done with 15 "high value" detainees.  One of the suggestions is to create special National Security Courts.

Let me address that idea with a simple answer.  Hell No.  National Security Courts would probably lessen the rights of defendants and be more flexible about allowing the government to use evidence gained in illegal ways such as torture and spying.  Once we allow any weakening of the safeguards of our justice system then that weakness will spill over into all of the legal system.  It is easy to see an over zealous prosecutor using a national security court for going after radical enviromentalists or ant-war activists or any other group on the fringe of American society.

 The only way we can lose to terrorism is if we beat ourselves.  Creating another legal system without all the safeguards is a quick way to do that

Pardons

There has been a lot of talk about pardons in the news due to President Bush's pardon of Issac Touisse and the nomination of Eric Holder which brought renewed attention to President Clinton's pardon of Marc Rich.  Both of these pardons are controversial and President Bush tried to rescind the Touisse pardon due to the controversy. 

After the Rich pardon President Bush made a big deal about following the Department of Justice guidelines and my guess is Obama will feel pressure to make a similar promise.

I hope Obama does not make that promise.  According to the Department of Justice guidelines pardons should be given only after a substantial period after a conviction (usually at least 5 years) and meet a list of criteria that include genuine remores, good conduct, and the opinion of Justice Department official and judges.  All of these are only suggested guidelines because the President's pardon power is absolute as guaranteed by the Constitution in Article II section 2.

However, I fear great pressure to follow the DOJ guidelines will be placed on Obama.  That's too bad.  The DOJ is the federal government's police and prosecutorial arm.  The DOJ in its police, prosecutorial, and punishing function is, in the words of Josh Marshall, "a vast, impersonal, crushing, and awful thing."  For a good example of this crushing and awful power look at the number of non-violent drug offenders languishing in prison.  To have the police and prosecutors in charge of granting mercy only ensures that not much mercy will be granted.  A separate party needs to be able to mitigate harsh punishments and add a leaven of mercy to our justice system to ensure that it is truly a just system.

I am willing to trade the occasional odious pardon if the President would freely grant a lot more of them to deserving people.