What Kind of War Is This?
Are we at war — or not?
For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen?
Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies — that he may not be guilty.
And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.
When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.
Yet that is what we do to al-Qaida, to which KSM belongs.
We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?
Minoru Genda, who planned the attack on Pearl Harbor, a naval base on U.S. soil, when America was at peace, and killed as many Americans as the Sept. 11 hijackers, was not brought here for trial. He was an enemy combatant under the Geneva Conventions and treated as such.
When Maj. Andre, the British spy and collaborator of Benedict Arnold, was captured, he got a military tribunal, after which he was hanged. When Gen. Andrew Jackson captured two British subjects in Spanish Florida aiding renegade Indians, Jackson had both tried and hanged on the spot.
Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.
When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?
When John Wilkes Booth shot Abraham Lincoln, alleged collaborators like Mary Surratt were tried before a military tribunal and hanged at Ft. McNair. When eight German saboteurs were caught in 1942 after being put ashore by U-boat, they were tried in secret before a military commission and executed, with the approval of the Supreme Court. What makes KSM special?
Is the Obama administration aware of what it is risking by not turning KSM over to a military tribunal in Guantanamo?
How does Justice handle a defense demand for a change of venue, far from lower Manhattan, where the jury pool was most deeply traumatized by Sept. 11? Would not KSM and his co-defendants, if a change of venue is denied, have a powerful argument for overturning any conviction on appeal?
Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?
And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?
There have been reports that in the trials of those convicted in the first World Trade Center bombing, sources and methods were compromised, weakening our security for the second attack on Sept. 11.
If the trial is held in lower Manhattan, how much security will be needed to protect against a car bomber who wants the world to see a mighty blow struck against the Great Satan? And if, as some suggest, the trial should be held on Governor’s Island, would that not make the United States look like a nation under siege?
What do we do if the case against KSM is thrown out because the government refuses to reveal sources or methods, or if he gets a hung jury, or is acquitted, or has his conviction overturned?
In America, trials often become games, where the prosecution, though it has truth on its side, loses because it inadvertently breaks one of the rules.
The Obamaites had best pray that does not happen, for they may be betting his presidency on the outcome of the game about to begin.
Patrick Buchanan is the author of the new book Churchill, Hitler, and ‘The Unnecessary War,’ now available in paperback.
COPYRIGHT 2009 CREATORS.COM
At least Mr. Buchanan can put things in historical context unlike the irrational fear mongers Hannity and Guiliani who think having a trial will result in untold horrors and plagues upon our lands. Hannity having termed it the most “reckless, dangerous, and irresponsible action of the Obama presidency.” Of course he never explains why, he simply states it. Thus in the minds of millions it becomes enshrined into what passes for “conservative thought.”
“What kind of War is This?”
Well that’s a pretty good question Pat, but you don’t answer it.
Rather, you imply unwarranted support for the neocon position that wrecked the Republican Party — a position that turned a small group of non-governmental thugs better described as a cult into World War III involving huge military missions all over the Middle East to fight “Islamic Extremism,” and engage in the folly of setting up synthetic governments that somehow turn hundreds year-old conflicts (conflicts having nothing to do with the cult that attacked us) into Jeffersonian Democracy.
You have spent the last 8 years writing excellent articles describing this idiocy for what it is.
Military tribunals can still be used, but the specific people in question here made numerous statements BEFORE THEY WERE ARRESTED.
When possible, we should send a message that these rag-tags are not military warriors and should not be elevated to that level.
And I can’t for the life of me understand anybody having a problem with a trial right at the spot where the crime was committed. It’s an in your face move that should be supported.
This is ultimately the question: Are we dealing with criminals or a foreign military force?
By bringing these men up on criminal charges, we imply that they are just ordinary civilians who have done something illegal (regardless of the scale of their actions or their motivations).
By bringing them before a military tribunal, we give legitimacy to their own claim to be not merely murderers, but a military or paramilitary force at war with the United States.
Our government has gone back and forth on this question enough to leave the whole issue totally confused. If they are merely criminals, they need to be treated like criminals in accordance with our laws, which affects where they are held, how they are treated, what rights they have, etc. If they are prisoners of war, other rules apply. Now which is it? Can the US government please decide this issue once and for all and act accordingly?
We have individual trials because every situation is different. If you go looking for a grand theory unifying our actions in this “thing that we’re doing against some people,” you’ll always be disappointed.
We denied al-Qaeda the protections of the Geneva Conventions, so we can’t treat them as war criminals. (Thanks, George!) The current military commissions are not the same things as the examples Pat gives above, they are new creations.
“There have been reports that in the trials of those convicted in the first World Trade Center bombing, sources and methods were compromised, weakening our security for the second attack on Sept. 11.” Well, if that is the case, it’s <a href=”http://www.harpers.org/archive/2009/11/hbc-90006103″Judge Mukasey’s fault. Yes, that Mukasey. I suggest you take it up with him.
Perhaps someone can cite me the declaration of war which congress gave under the constitution.
But there is a greater problem. If it IS war, he should be considered a “prisoner of war” and given everything the Geneva conventions entitle him to (unless he is found by a tribunal to not be a POW or the “war” ends).
The problem with judicial black holes is they suck everything in.
If he is a criminal, he will get no glory for being a common thug. Instead he was labeled as a brave soldier fighting for the freedom of his country against the evil empire (not the good republic?).
Of course there is a simple solution. Find one of the torture plane pilots, put KSM, and the CIA people convicted in Italy on it, and then after it is over international waters, shoot it down with a missile, since it would be justified under war, and the collateral damage will be “friendly fire” and everyone will be happy including Pat.
Pat was around during Vietnam – did we have torture centers in the USA where we would fly North Vietnamese? Oh, and they labeled every one of our soldiers “enemy combatants” and tortured them instead of giving them their proper rights under treaties. We were at least different enough from them back then to do the right thing even when our enemy didn’t. Now we have lost the moral high-ground – and it seems whatever this conflict which is not a war is called.
I agree with Buchanan if I understand him right. As is their wont liberals/the Left seem to think they can ignore the lessons of history and in this case it’s an ancient one to the effect that there is a great difference between acts of mere criminality and acts of war.
Of course how this trial goes may persuade the country to remember this distinction and I suspect that’s a good possibility. A circus second to few could well be in store.
Very possibly even worse however is that it won’t be an overt circus, so leading to the understanding that such trials are de rigueur for “terrorists” or those who are fighting against us. And then watch the corruption of both our criminal justice system as well as our war/terror-fighting system grow.
As to the former just imagine the pressure on judges to not allow people popularly regarded as heinous terrorists to get off “on a technicality,” which technicality may in fact be some significant point of law that protects us all. And perhaps watch this devolve into the development of an entire sub rosa body of law, with different standards quietly understood to be applied to cases involving “terrorism” or “extreme” politics at a time when there seem to be ever more criminal laws passed or considered and addressed to American citizens whose beliefs are thought “extreme” by the powers that be. Wasn’t it just a few months ago that the Department of Homeland Security put out some memo to police departments talking about how to spot “domestic extremists”? Too many bumper stickers on your car? Advocate something that Ms. Napolitano doesn’t like? Give to it money-wise? Well how about a separate, sub rosa body of law for you?
And as to the latter watch the effects on the military and the counter-terrorism people who now will face all the pressures the domestic police have to not contaminate cases via procedural mistakes, to even have to preserve “evidence” on the battlefield and “witnesses,” to not violate the “rights” of enemy combatants that in fact the Constitution doesn’t even give them and etc. and so forth.
Moreover the really silly thing is … what’s the need here? Where really is the political pressure to either try this guy in a domestic court or let him go? In essence it appears to be nothing so much as a show trial. Arbitrarily granted, solely for the purpose of affecting public opinion in some way, that in and of itself shows that “justice” isn’t really the point here.
As much as anyone I think us getting into these Middle East conflicts is just an absolute crime, and that indeed we are supporting and perpetrating crimes against arabs and muslims. But to the extent the country is waging war on them—and we are, with no formal declaration of war ever being thought necessary for us to engage in a war—well then at the very least it ought to be done with the minimum of damage to our criminal justice and military systems. God knows it’s done enough damage to us otherwise.
Reminder to all: we could have declared KSM an enemy combatant, given him the protections of the Geneva Conventions and tried him as a war criminal. A declaration of war by congress would be required, but the admin could easily have gotten this if it asked for it. Instead, the admin didn’t want a declaration of war, in part so they could torture detainees for information about al-Qaeda and possible future attacks. Once that choice was made, civilian criminal charges were the only option available to us. (We’re trying to create another option, see below)
TomB,
“As to the former just imagine the pressure on judges to not allow people popularly regarded as heinous terrorists to get off “on a technicality,” which technicality may in fact be some significant point of law that protects us all.” As to popular opinion, it should not be a factor in any decision the judge makes. A significant point of law isn’t a technicality.
We have already “devolve[d] into the development of an entire sub rosa body of law, with different standards quietly understood to be applied to cases involving ‘terrorism’.” Except it wasn’t sub rose or quiet. It was the Military Commissions Act of 2006. Some parts were struck down, but Obama has just signed an updated version.
The least amount of damage to our criminal justice and military systems would be accomplished through federal civilian trials.
Wow, finding Joanne Mariner’s work has been great. Check out this on topic post.
“We denied al-Qaeda the protections of the Geneva Conventions, so we can’t treat them as war criminals. Al-Qaeda has no protection under the Geneva Conventions. They are unlawful combatants. As such, Military Tribunals can and have tried and executed such individuals. Why pretend that they are American citizens with rights?
What body of law are you talking about to prosecute unlawful combatants in military tribunals?
For your last question, from the second article cited above:
“Members of al Qaeda seek to be acknowledged as soldiers, rather than denigrated as criminals. They glorify their crimes as acts of war. Putting them on trial in military commissions would reinforce their narrative, not refute it, handing al Qaeda an enormous propaganda boon. In the battle of ideas that is central to the struggle against terrorism, a military trial is a win for the terrorists.”
“Are we at war — or not?”
No, Pat, you’re not. The fact that the previous Administration was allowed by Congress and the MSM to – pretend – that you were in a wartime scenario doesn’t do anything to change the fact that you’re not. Neither does the refusal of the current Administration to abandon the latitude they’re being given to slow-walk the return of constitutional norms.
Both are wrong. Now wipe up that pool of pee and try explaining just – why – you think KSM’s fellow fanatics might think it advantageous to launch another terrorist attack on New York while America is attempting to try him for murder.
It wouldn’t help his case, would it? But it might make Americans as angry and scared as they were after the last terrorist attack on New York.
Who might benefit from that, Pat?