The Military Option

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It looks like accused terrorist Zacarias Moussaoui will soon follow the same path as Ali Saleh Kahlah Al-Marri, the alleged Al Qaeda agent who was transformed from a criminal defendant into an "enemy combatant."

U.S. District Judge Leonie Brinkema has ordered the government to let Moussaoui question 9/11 conspirator Ramzi bin al Shibh. The Justice Department accuses Moussaoui of planning to participate in the 9/11 attacks, and he says al Shibh's testimony would exonerate him. But the Bush administration, which is holding al Shibh at an undisclosed overseas location, refuses to make him available for the videoconference deposition Brinkema has ordered, saying it would endanger national security by revealing classified information. Hence the charges against Moussaoui probably will be dismissed or dropped, after which the Justice Department is expected to hand him over to the Pentagon for trial by a military tribunal.

The Moussaoui case again illustrates the pressure that can be brought to bear by threatening to reclassify criminal defendants as enemy combatants: If they insist upon their rights, they can be transferred to a venue where those rights do not apply. (That's assuming they're lucky enough to get any trial at all; they could just be held indefinitely without being charged.) A story about U.S. plans for military tribunals in Sunday's New York Times began by noting that "United States officials…greatly want the trials to be seen as fair." Yet the ability to question someone with direct knowledge of your guilt or innocence seems to be a pretty important part of defending yourself.

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  1. What about double-jeopardy? Suppose the judge were to allow the trial to go ahead, informed the jury of the abuse of ZM’s constitutional rights to call witnesses, and the jury acquitted based on evidence presented? Could ZM then be declared an enemy combatant for the same offense anyway? Would the government claim he did something else to earn the special designation? Or is there a concept of specific wrongdoing at all in branding someone an enemy combatant? If you can be cleared of wrongdoing in a regular criminal court and then spirited away as an “enemy combatant,” what protection does the constitution provide, anyway?

    It doesn’t seem to me that we will be able to long tolerate a dual legal system. Such a thing is flat-out unamerican. I don’t know ZM. He could be the scum of the earth. But he has his rights in court as every accused does under our system, especially as he is presumed innocent until PROVEN guilty. If we fail him in this case, we fail ourselves (as news headlines scream we do often enough with regular criminal cases). How many more failures can the system tolerate before it comes crashing down?

  2. I figured our justice system was a joke and our liberty was all but done when Colin Ferguson was denied permission to subpoena Bill Clinton and John Elway. Glad to see you all catching up, welcome aboard.

  3. Even if they let him go on both sets of charges they can arrest him again for either hate crimes or violating people’s civil rights

  4. This shows how fucking ridiculous the court system has gotten in recent years and why the Bush admin and myself have no faith in the judiciary.
    50 yrs. ago this motherfucker would be blowing in the wind hanging from a tree by Sept. 13th 2001.
    We all know he’s guilty (don’t feed me this shit of innocent until…, we’ve all seen the necessary evidence), why the hell is he still alive!?!

  5. “If we fail him in this case, we fail ourselves…”

    James,
    You’re a moron. Thank you, but I think I would still be able to get a fair trial even if Moussai was executed with just a *show* trial.

    This guy was the 20th hijacker. End of story. He’s in that special category with Hitler, McVeigh, and other fanatics. No need for a Johnny Cochran-fair trial. Hang the bastard!

  6. B,

    At the risk of pointing out the obvious, what we’ve all seen is crime he is accused of being involved in. We have not all seen the evidence that he was involved in it. Those are two very different things.

  7. they should’ve just killed the fucker

  8. tsk tsk. Such little respect for procedural protections our wonderful system offers.

    Whether or not this guy is “still alive,” the Justice Dept. seems to be taking a beating over its handling of the case. And to the extent prosecuting him in a civil tribunal is a political move, it hasn’t played out as well as govt. has hoped.

    But bottom line Jacob is right on. Whether or not the military tribunal or enemy combat designation is appropriate, checks and balances are essential and unfettered discretion inappropriate. And this particular situation illustrates how in the govt.’s view those checks and balances are not necessary. Hopefully they lose this particular battle.

  9. anyone who gives two shits about this guy needs to go in and have their lefty persecution complex examined.

  10. Fyodor,
    Well in this case the accussation is good enough for me. Besides, by his own admission, he gives his defense as “Oh, I wasn’t the 20th hijacker, my terrorist mission was to come sometime in the future.” Well, I’ve heard enough.

    You know, we wouldn’t need all these military tribunals (which I admit, are ripe for abuse), if we didn’t have this Johnny Cochran-ification of our court system. And I’m not talking about OJ (I went to USC so I’m glad he got off).

    5th amendment: swift and public; nothing about fair. If we’re going to give up swift, we might as well give up public.

  11. By the way, B was the 21st hijacker.

  12. First they came for the raving psychotic religious nutcake terrorists, and I said nothing, because I was not a raving psychotic religious nutcake terrorist….

  13. B-

    I also went to US, and I was disgusted when OJ got off. And I’m even in S&D. If you don’t know what that means or why it’s relevant, you’re not supposed to 😉

    Back to terrorism: I have no regard whatsoever for terrorists and their rights and well-being, but I want to determine with evidence whether or not he’s really a terrorist, or just a crazy man claiming to love Bin Laden because, well, he’s so nuts that even Al Qaeda won’t trust him with sharp objects. (I assume that Al Qaeda trains its operatives to keep mum about Al Qaeda.)

    Here’s a thought: If Bill Clinton and Janet Reno said “We have evidence that this person is guilty, but we can’t present it in court, so we’re dispensing with the technicality of a trial”, I assume that Republicans would be up in arms. After all, we can’t trust Clinton and Reno with that sort of unchecked power. They’ll abuse it.

    Which begs the obvious question: Can we trust anybody with that sort of power?

  14. B, I think you mean the 6th amendment. That’s the one that guarantees the right to a speedy and public trial and also the right for the accused to confront his accuser.

  15. Why are you people so f—ing certain? Do you know the man? Do you work for the FBI? Would you actually be willing to see someone executed based on the press leaks you’ve seen on the nooz?

    Tell me, genius, who do you think should be allowed to make the judgement that someone is so obviously guilty that a trial is unnecessary? I nominate James Brady, Janet Reno, and Michael Moore.

  16. But Joe, we can’t trust those liberals to make the judgement. They’re, well, liberals. I mean, my side is right and their side is wrong. We’re good and they’re bad. Isn’t that objectively obvious? 😉

    Seriously, Joe, thanks for making a very important point: An unchecked executive might look really good to some conservatives if conservatives control the executive branch, but they’ll change their tune if liberals control the executive branch.

    Here’s a radical proposal: How about the executive branch sticks to the limited powers enumerated in the Constitution by some long-haired radicals 200 years ago?

    OK, go ahead everyone, call me a bleeding-heart lefty.

  17. And I’m even in S&D. If you don’t know what that means or why it’s relevant, you’re not supposed to 😉

    i’m into sadomachoism & defenestration too!

  18. Skull,
    To be honest, I only want to see heads roll with regard to 9/11. Not really because “he’s obviously guilty”. It’s a call for vengeance.
    Let’s say they did have a trial and he’s found innocent. If they released him from central processing, there’d be a nice lynch mob ready to finish the job.
    Al queda’s pretty tricky in this respect. What hard evidence do we have they were even behind 9/11 (other than osama’s tapes after the fact).? Could we convict them in court if it ever came to it? If the answer is no, then should we bother?

  19. Nice try, emerson, but no.

    It does, however, involve Trojans 😉

  20. First they came for the raving psychotic religious nutcake terrorists, and I said nothing, because I was not a raving psychotic religious nutcake terrorist….

  21. Whoa, how’s that appear twice? Apols, all….

  22. I wonder how long it will be until the Miltary Tribunals are replaced by good old fashioned Trails by Ordeal? After all, if they’re innocent, God won’t let the hot irons burn them will he?

  23. We actually only need one act of Divine Intervention. God installed George Bush in office, and He intends for the President to mete out justice as necessary.

    (Just kidding, for the sarcasm-impaired.)

  24. screw Moussaoui! FREE MUMIA!

  25. Doo an’ mon droyt, y’all.

  26. Doo an’ mon droyt, y’all.

  27. What wasn’t made clear in any of the news coverage was exactly how national security would supposedly be compromised by allowing one permanent prisoner to interview another, particularly since neither of these guys has the slightest chance of ever seeing the light of day again in any case. Sure, it’s against protocol, but wouldn’t it make sense to just allow it in this one case for the sake of appearances (ie. the appearance of a fair, non-show trial)?

  28. If this guy was released to a civilian life due to issues revolving around his not being able to call the witnesses he wanted, would you *REALLY* be feeling that the system works?

  29. Dibble, hardlining is the flavor of the current presidential cycle. Bush would rather appear tough on terrorism by eliminating the evil doers without providing constitutional protections meant only for god fearing christian, law abiding Americans. Read his lips, no fairness for evil doers!

  30. It amazes me that the citizens of the US are willing to throw away the rights that hundreds of thousands of your ancestors died fighting for over the deaths of 3000, may they rest in peace. 9/11 gave Dubya carte blanche to shred your constitution under the guise of providing some unattainable level of omnipotent protection from things that go bump in the night, that was the real tragedy. I truly patriotic of those unfortunate 3000 are probably rolling over in their graves right about now.

  31. The anonymous B says, “James,
    You’re a moron. …

    This guy was the 20th hijacker. End of story.”

    Even a moron can out-think kangaroo court illogic such as that. But I’ll only wish for you the same standard of due process and fairness that you wish others, and hope that it applies in your darkest hour. Some people only learn when they’re on the receiving end, after all. With that in mind, I hope your future education will be rich, indeed, and that you graduate with honors.

  32. I would rather he nuked a city than to stand for this travesty of injustice!

  33. The last time I was challenged with “You’re gunna let them nuke a city!” it was with Niger-bought uranium. Spare us the histrionics.

  34. “Cockburn’s” apparent sarcasm misses the point: We can have safety AND freedom if we do it right.

    Let’s examine another situation of domestic violence and unrest, with violent conspirators hiding amongst us: The Constitution was written not too long after a war had been fought on US soil. There had been pro-British sympathizers living amongst the citizenry, some of them aiding the enemy, others just lying low, and many fleeing to Canada. There had been fighting in cities. There had been rebellions (e.g. Shay’s rebellion) after the end of the war.

    Somehow, despite this turmoil, with possible terrorists and spies walking down our city streets, the Founders thought it best to protect the right to due process.

    Were the Founders

    a) naive?
    or
    b) wise?

    I know what my answer is.

  35. joe is right. there is no nuke threat. this is all chimpy lies.

  36. Did old Jefferson worry about a single criminal murdering millions in 30 seconds?

    Philosophically I agree with the founders. But pragmatically if I knew someone who was capable of doing such a crime I would blow their brains out myself.

  37. I think Jefferson would whole-heartedly endorse the death penalty for terrorists, after conviction by a jury in a fair, speedy, and public trial.

    Also, it’s not like people had no means for mass murder 200 years ago. Instead of flying airplanes into towers, a suicidal fanatic (for whatever cause) could drive a wagon filled with gunpowder into a building and light a match. And biological warfare isn’t exactly a new thing, it’s been around for thousands of years.

    Still, despite these threats, the Founders provided due process protections.

  38. I think Jefferson would whole-heartedly endorse the death penalty for terrorists, after conviction by a jury in a fair, speedy, and public trial.

    Also, it’s not like people had no means for mass murder 200 years ago. Instead of flying airplanes into towers, a suicidal fanatic (for whatever cause) could drive a wagon filled with gunpowder into a building and light a match. And biological warfare isn’t exactly a new thing, it’s been around for thousands of years.

    Still, despite these threats, the Founders provided due process protections.

  39. building versus city — guess you made your point

  40. So how does anon @ 5:30 pm decide when to uncritically believe what the gov’t says?

  41. “a suicidal fanatic (for whatever cause) could drive a wagon filled with
    gunpowder into a building and light a match.”

    Sure. And all he’d need on that wagon would be 10 million or so tons of TNT:)

    I really do agree with your conclusions here, but your analogy is terribly poor.

    Andy

  42. Citing national security concerns, the Bush Administration is cancelling the 2004 elections. Congressional positions vacated by retiring politicians will be filled with presidential appointees. Senior officials in the administration acknowledge that once the war on terror is concluded, national elections will once again resume.

  43. If the Bush Administration doesn’t throw open the files of the NSA and the CIA, or for that matter allow Moussaoui to call anybody he likes as a witness – George Tenet or George Bush, for all that matters – then liberty as we know it is clearly finished. Classifiied schmassified…

  44. @ 5:02 is right.

    It’s all a bunch of BushWa lies. Everbody knows there’s no uranium in Niger.

    (Except for the fact that uranium is Niger’s #1 export, outpacing livestock by a 2:1 margin…)

  45. “building versus city — guess you made your point”
    i guess you never heard of the grewat chicago fire or the great london fire wherea fire in one building burned a huge metropolis to the ground

    PS thoreau i’m with you buddy but i don’t think its the end of the world. remember that lincoln treated the constitution far worse than bush currently is, but the constitution still matters

    you’re saying: the war on terrorism will outlive th constitution? thats crazy. wll it may but even with the war on white supremacy still being waged the constitution ebat it by a good margin when saremonegrs @ the time thought it couldn’t/would’t be able to survive

  46. Wow, so now we’re invading countries because other countries have resources that they might sell to them. Austrialia has uranium, too. Let’s send the Marines to Surinam.

  47. joe obviously you are being stupid when yu make comments like that

    taking that attitudegets you nowhere; why not make the reasonable critiques of bush you’ve been makign instead of that kind of crap?

  48. Anon 0202’s accusation is enough for me. We all know B did it. After all, we’ve all seen what happened on 9-11: isn’t that evidence enough for you damned bleeding hearts? The crime is heinous; therefore anyone accused by the government MUST have done it. So why is B still alive instead of swinging in the wind?

    Frankly, I’ll be glad when we apply the same standard of evidence to all crimes more serious than jaywalking. All this bullshit of putting the burden of proof on the government to prove its accusations to a jury beyond a reasonable doubt is WAY too much trouble. Just goes to show how much harm was done by all those damned bleeding heart pansies who wrote the Fourth, Fifth and Sixth Amendments. If the government says somebody is guilty of a crime, that’s good enough for me. Bring on the rope!

    But seriously, B doesn’t have to be “obviously guilty.” I just want to see some heads roll, you know, for REVENGE and all. B will do just as well as anyone, whether he’s guilty or not. And even if he’s acquitted because of the half-assed case against him, I’m sure we can get up a pretty good lynch mob….

  49. “why not make the reasonable critiques of bush you’ve been makign instead of that kind of crap?”

    First of all, thank you. Second, I didn’t post that as a criticism of Bush, but merely to demonstrate the weakness of Apis’ reasoning. (Niger exports yellowcake, therefore the intelligence about Saddam’s nuclear program was true and we must invade Iraq.)

    I’ll try to copy the comments I’m responding to more.

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