Is America a Serious Nation?
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.
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I don't see how the confessions extracted from these men by torture could possibly be admissable in federal court. Then again, it may not make any difference since they are sure to face a hanging jury in New York.
If United States intelligence did in fact uncover stark evidence that Khalid Sheikh Mohammed is guilty of conspiring to carry out numerous terrorist attacks including those on 9/11, then why did they consider it necessary to torture?
If the basis for Mohammed’s criminal charges originate from information obtained through confessions that were extracted by torture it will be nearly impossible to convict him. America made its bed when they decided that torture was by some means an admissible form of interrogation, and as far as I am concerned they can sleep in it.
#2, I imagine they tortured KSM to obtain information about other conspirators. America ... they can sleep in it. You must not be American?
#3 Mr. Hewlett, I am very much American, however I will not make any efforts to defend torture nor am I surprised by the blowback that occurs when we choose to engage in it. This sort of behavior was given as the rational for the war in Iraq and is symptomatic of a rogue nation. As I recall, we were fed a constant propaganda campaign about Saddam torturing his people.
Torture is inconsistent with Constitutional law as well as what many would consider to be traditional American values. Christian morality does not endorse torture, but then again we ceased to have any semblance of being a Christian nation a long time ago. Our government and media are currently committed to the removal of whatever vestiges of Christianity remain, so perhaps my opposition to torture is null.
Is Pat Buchanan a serious commentator? When will he be able to make up his mind if he is or is not in favor of the perpetual warfare policy of the regime? Not only has the ill conceived war on terror cost thousands of American lives and hundreds of thousands of foreigners their lives, but it has exponentially multiplied the numbers of our enemies, nearly bankrupted the country, and raised the status of the Al Qaeda gangsters to that of a world power. A lot of damage has already been done and it may be too late to undo a lot of it, but at least treating these people as criminals may begin the process of ending the war hysteria of Americans.
Pat Buchanan raises an important question. Despite what Kirt Higdon seems to think, Buchanan is not advocating waging preemptive war in the Mideast, something he forcefully opposed from the beginning. He is talking about how we should deal with men intent on murdering innocent Americans, as the Al-Qaeda terrorists demonstrably are. Giving foreign terrorists the same rights we accord American citizens is absurd.
Mr. Buchanan has not (to his credit) advocated pre-emptive war in the Middle East; nevertheless, he is a divided man when it comes to prosecuting the wars. He recognizes the futility of our efforts but worries too much (in my estimation) about a loss of credibility if we remove our troops from these fiascos. Perhaps it is a residue of his Nixon administration experience and the dumping of South Vietnam. It reminds me of his inability to sever his emotional ties to the Republican Party which has rejected him. There's too much stubborn Irishman and Scotsman in him to cut his losses and throw in the towel -to git while the gittin' is good!
The problem is not law or policy towards terrorists---the problem is that the U.S. can no longer distinguish between a citizen and a foreigner. Granting citizen's rights to these foreigners, who should never have been in the country to begin with, is repulsive. On the other hand, the denial of due process to anyone is a slippery slope since freedom consists ENTIRELY of restrictions that government has been forced to accept over a long, difficult, and uneven process of centuries. Nor can the extant U.S. regime we trusted with anybody's right to life, liberty, and property.
Is Mr. Buchanan submitting the murder of Mrs. Surratt as an example of good policy? The Lincoln "conspirators" were bound, gagged, and hooded and executed after a secret military trial. They were not allowed to speak to anyone not approved by the evil Sec. of War Stanton, the American Himmler. A normal procedure would have been to question the people to find out as much as possible about the most important event. Instead they were held incommunicado and quickly executed. The only people who profited from this was the Radical Republican conspirators against the Union who wanted to close off any possible discovery of their involvement is Lincoln's removal from the scene. The war was virtually over and no judicial determination had been made about the prisoners'
status. It is hard to imagine a more arbitrary and illegal act.
I fear this shows what unquestioning obedience to the U.S. government leads to.
Clyde, Clyde, Clyde! Will you ever forgive us damn yankees for drubbin' your reb asses lo these 14 score and 4 years ago?
Rafferty @9
Score means 20 years. So 14 score would equal 280 years.
Mr. Piatak and Dr. Wilson are apparently under the impression that foreigners either do not or should not have the same legal rights as US citizens when tried by US courts. Maybe they shouldn't, but under the Constitution they do. And this does not prevent their conviction and incarceration. Dozens of Columbian and other Latin American narcos, not to mention Islamic terrorists such a the blind sheik (Egyptian) and Ramsi Yousef (Paki) are incarcerated in US prisons.
But Dr. Wilson makes a good point, intended or not, with his reference to the cover-up following the Lincoln assassination. The dirty little secret of the CIA and the "special ops" branches of the armed forces is not that they torture. That is no secret and the majority of the American people unhappily approve. What is kept secret from most Americans is that they train and equip Islamic terrorists by the thousands, Hasan being just the most recent notorious example. Roam the world seeking monsters to destroy? No, like Dr. Frankenstein, the US rulers create their own monsters to keep their subjects in a state of terror.
Mr. Rafferty speaks as though he were really referring to some kind of civil war between TWO factions of ONE country. No doubt this is the result of public school education he has yet to recover from. Southerners would then indeed be sore losers, if Mr. Rafferty's interpretation of that sordid little affair was accurate. Dr. Wilson, however, is only holding the Yankee imperial establishment accountable for a war of aggression against and occupation of another nation of people.
Higdon makes an excellent point, one I have not realized until now. The American regime doesn't violate J.Q. Adams's advice by going abroad searching for monsters to destroy. It merely transfers the reigns of power from one monster to another in order to perpetuate the cycle of keeping monsters abroad alive and well. Subjects of an empire must, by definition, be kept scared and submissive.
Dr. Wilson,
There is no distinction, or possibility to distinguish, between a citizen and a foreigner in a so-called country where a centralized board of bureaucrats make the decision to declare that the latter is the former - with naught but a signature and an ink stamping.
#9. Note that RJ, RJ, RJ's! condescending and faux-humourous style of "thinking" and argument is typical of people representing his unsupportable viewpoint. It is almost always the style of these people.
Is the Obama administration aware of what it is risking by not turning KSM over to a military tribunal in Guantanamo?
The answer is, "No."
In fact Obama is a laughingstock all over the world except among America's mainstream gutter press. Little Smoking Barry bows low to Arab potentates with no clue as to what American independence was all about. His handlers are aware of this and fail to clue him in on such errors of protocol. It serves the voting public right for electing a mulatto who is also half-Kenyan.
Torture is a completely secondary issue. Whether to, or not to, torture depends entirely on the nature of the conflict and the nature of the enemy. Given a defensive position (when the chips are down) I think we would be amazed at how quickly everyone here would turn into monsters. We should not have invaded Iraq and Afghanistan because they did not attack us as nations. Some of those countries' citizens have attacked us - as well as others.
Mr. Hidgon,
The whole point is that such as Khalid Sheikh Mohammed should not be tried by US courts. They should be tried by military tribunals, which is indeed what we used to do, a procedure upheld by the Supreme Court in Ex parte Quirin. In fact, a case could be made that they should be tried on the battlefield, under the authority of Rule 303. (Fans of "Breaker Morant" will understand the reference).
If a terrorist is caught on the battlefield, or in the act of carrying out terror, I see no reason why the Morant policy would not be carried out. However, I do not think the American people have the stomach for that sort of thing. Think about how weak in the knees most Americans get regarding Capital Punishment, which these days must be carried out behind closed doors by, usually, lethal injection after several years of appeals.
Khalid Sheikh Mohammed should never have been tortured. He should have been tried by military tribunal and, if found guilty, publicly hanged at a military base on American soil for all America and the world to see.
Derek Leaberry at 19:
Yes, I believe your position is the correct one.
"If a terrorist is caught on the battlefield...."
What battlefield?
Mr. Collins, if an Al-Qaeda was captured at, say, a Taleban base in Afghanistan in the winter of 2001-02 and not shot on site by our soldiers, I believe he ought to have been brought back to the US, tried, and if convicted, executed and his body dumped at a pauper's grave.
The last time justice for domestic terrorism was dispensed properly was in 1859 when John Brown was handed over to the State of Virginia for trial.
Mr. Leaberry,
The point is that for certain types, there is no battlefield, so the threshold question, which I think Buchanan was getting at, is defining who is the enemy and who is merely a bandit, criminal, brigand, murderer, clown, etc. etc. We should get rid of the word terrorist and be more precise, and thus keep clear and out-front the distinction between enemies, with whom we might, at least conceivably, strike a peace, and criminals, who can't be afforded that dignity. Look again how Buchanan started his article: Are we at war --or not? Certain things follow depending on how you answer that question.
Is Dr. Wilson a believer in the "Stanton dun it" thesis? After all, he was a Democrat and a Lincoln critic before the war (perhaps that's where he got his "Himmler-like" attitudes).
25. I urge you to study Stanton's behaviour closely. I do not know what happened in the Lincoln assassination and neither does anyone else. We will never know, precisely because of Stanton's actions.
It's my impression that most of the detainees were not captured in combat but were sold to the U.S. forces. There is a difference, especially since, juridically speaking, no war has been declared.
How dare you, suh! I'll have you to know that my great-grandaddy fought at fust and second Molasses and was mentioned in dispatches by General Beauregard Beaupre Scruggs for his fine, discerning, unstuttering(#15)humour!
#28 QED
"Is America a Serious Nation?"
Of course not. Chronicles is,so far as blogs can be serious, a relatively serious blog. Yet, even on the best of days it is often visited by some young college kid like, RJ Rafferty who uses the manners found in any bowling league across America to upbraid a venerable man and Southern historian who he does not know and cannot respect. A culture is based on its ordinary habits and every day manners, not the virtues (or even vices) of its extraordinary citizens. We have neither. The question is when, if ever, were Americans a serious people.
Theoretically, an unlawful enemy combatant (as opposed to a POW) could be tried in a military tribunal either in theater or not, I believe. This would best apply, for example, to an irregular enemy combatant in Iraq or Afghanistan who was captured engaging in an illegal activity according to the Law of Arm Conflict.
The problem here is definitional. We have declared (actually not) an amorphous "war on terror" and consider terrorists unlawful enemy combatants. Any terrorist, anywhere. But this is a definition for convenience only. If the terrorist isn't an actual enemy combatant, meaning at this time either fighting for Iraq or Afghanistan, then they aren’t really an unlawful enemy combatant, they are a criminal. Before 9/11 they were criminals. After 9/11 do they somehow magically become enemy combatants? This gets at the whole insanity of declaring war against a tactic.
I get the opposing viewpoint being articulated here by others, and I get the problem with making real policy based on slippery slope concerns, but this seems to me a potentially very slippery slope. If anyone, anywhere can be declared an unlawful enemy combatant essentially by fiat, then what is to keep them from at some point declaring all of us “anti-government” rabble rouser thought criminals to be rounded up and dragged before a military tribunal?
I think a good way to deal with these foreign terrorists would be with letters of marque and reprisal. This would authorize the military or others to strategically go after terrorists without corrupting the unlawful combatants concept.
Either we are at war or we are not. All other questions are secondary to this. Not why we are at war, how we conduct the war or who started it, and even less who "we" are.
To take the position that we are not at war, either one has to completely misunderstand the nature of the violence done to Americans, beginning with the first airplane hijackings of the 70s, or one has a political axe to grind.
The axe the Obamites and the Democrat party have to grind is nothing less than the weapon with which they seek to strike a powerful blow at America itself. By holding that KSM is a mere "criminal", and, as such, innocent until proven guilty, they say before the world that America is guilty until proven innocent. By saying KSM and his accomplices have the same rights as Americans, this administration radically debases the pitiful remains of those rights for Americans. By giving this case standing in an American court, the Trotsky/Marcuse black vanguard who took over Washington in 2009 create a perfect platform for gutting what is left of the power and prestige of the race and culture that founded this country.
Like his heroes, the Weathermen and other 60s radicals, who elevated the Viet Cong, who had the blood of village elders and teachers on their hands, to folk-hero status, Islamophile Obama would elevate jihadists to similar status. Whether or not, as PJB says, Obama "may be betting his presidency on the outcome of the game", is, again, secondary to the state of war that exists. For, as per Trotsky's insight, that "... American Negroes .... are potentially the most revolutionary element of the population", the Obama vanguard is about to amplify the already powerful voice of jihad in America's prisons to multiply the ranks of D.C. snipers, etc. That is the name of the game about to begin.
Gilbert writes:
"Either we are at war or we are not. All other questions are secondary to this. Not why we are at war, how we conduct the war or who started it, and even less who “we” are.
We are not at war. All other questions? What do you mean by this?
Gilbert then writes:
"To take the position that we are not at war, either one has to completely misunderstand the nature of the violence done to Americans, beginning with the first airplane hijackings of the 70s, or one has a political axe to grind."
Who was hijacked, when? A specific incident would be helpful. Gilbert, what do you know about the CIA involvement in the middle east? Little? Or little to nothing?
You should post on the non-existent Weekly Standard comment section that exists solely in your trifling mind.
Gilbert, are we at war with who? We are at war (undeclared and hence illegal) with Iraq and Afghanistan. We are not at war with hijackers.
Jerry, @33
I got your trifling.
You really should stick to your crackberry. Even when you're limited to three lines your brainpower struggles to reach, as in 15 November's "No less than 911 was the Bush Massacre": as if there could be an equivalence of blame between a senator who's been shredding the constitution for multiple terms and someone who just got into office. The slap at Leahy pinch your poor little Democrat nerve?
"Who was hijacked, when?" Even an MTVidiot like you should have picked up somewhere along the line that Americans have been getting hijacked and attacked since, oh, say, at least 1985, when Navy Diver Robert Dean Stethem was beaten and shot to death aboard TWA 847 by Imad Mugniyah, mastermind of the Marine Barracks attack that killed 241 Americans. Do you think I might have been referring to the almost 200 hijackings that occurred in Europe and the Middle East between 1968 and 1970?, many of which included American victims? But no, Jerry, I doubt this information will be helpful to such as you.
Jerry then tries for a touch of mystery, asking what I "know about the CIA involvement" in the middle east, a typical lefty ploy, dropping a sinister-sounding hint about the CIA just to leave it dangling. Well, the answer is, not much, except for reading everything by Agee, Baer, Cannistraro, Helms, Gertz, Giraldi, etc. I can get my hands on. I'm sure this pales beside master sleuth Jerry's list. And, after all, Democrats just know about these things, being so much more in tune with back-stabbing dirty work. So you tell me, Jerry; I'd love to hear your inside information on how the CIA did it, or Bush/Cheney, or anybody but the man who has begged to be executed for the act that he knows he did, and for the glory of which he believes he will be celebrated on earth and in heaven, for ever and ever.
Mr. Jacobi,
I did not intend for this discussion to turn into needless mudslinging. Perhaps my trifling barb was inopportune and unnecessary, and I apologize for that.
However, your entire response degenerated into ad hominem, smearing me as a lefty Democrat and then introducing a straw man about Bush/Cheney and the C.I.A involvement in 9/11.
You accuse me of being a Democrat and a lefty. It's mind boggling how you are able confuse Old Right non-interventionism with lefty politics. For the record, I voted for Dr. Paul during the primaries and then Chuck Baldwin in the general election.
As for the three lines I wrote on my blackberry, I was simply applying the same logic as the poster who termed the Fort Hood Massacre "the Leahy Massacre" to help illuminate this line of reasoning would indubitably lead to 9/11 being coined the "Bush Massacre."
I hope this clarifies things.
My remarks regarding C.I.A involvement in the Middle East should be straightforward to a someone who claims to read everything written by Phillip Giraldi. Did you miss his interview with Sibel Edmonds? If not, do you think Mrs. Edmonds is a liar?
Furthermore, is Mr. Giraldi using a "typical lefty ploy" when he criticizes the C.I.A?
Mr. Jacobi,
My main quibble is that you claim we are at war. But against whom or what? A nation, a religion, a terror group? What exactly is the war we are fighting and what are the goals? I'd appreciate clarification on this.
What war? We can't bring ourselves to even declare we are at war with simple vote of the Congress as is their Constitutional duty. If our own leaders can't take the war effort so seriously to even do this, to make it officia;, why should anyone expect the average person to take it seriously either. War demands sacrifice and yet what did we tell people to do after 9-11? Go shopping. Not exactly a "meatless Tuesday" like in WWII.
"The whole point is that such as Khalid Sheikh Mohammed should not be tried by US courts. They should be tried by military tribunals, which is indeed what we used to do, a procedure upheld by the Supreme Court in Ex parte Quirin."
I could be wrong, but I believe Quirin determined the tribunals used in those *particular* instances, and under those *particular* circumstances (declared war) were constitutional. The defendants, however, had access to counsel and were not held incommunicado as they have been in this last "war". More recently in Hamdan the SC found the tribunals as constructed by the Bush admin were *not* constitutional.
"In fact, a case could be made that they should be tried on the battlefield, under the authority of Rule 303."
What "battlefield"? Many accused terrorists were captured far from any battlefield - what about them? What about innocent civilians abducted by our intelligence services - where should they be tried? Should the American government be allowed the power to abduct anyone from anywhere in the world to hold them, for years (or indefinitely, as Obama has claimed the power to do), incommunicado and with no recourse to defend themselves in a fair, open trial?
Also, what about those captured on an actual, real-life battlefield. Most of those waging war against the US in Afghanistan are not religiously motivated fanatics - they are people who have seen their countrymen and co-religionists slaughtered by an arrogant alien occupation and are understandably fighting against it. Our government considers them "terrorists". Where should they be tried? Or more accurately - why?
I do not recall that the United States had a persistent Islamic terrorist problem before insinuating ourselves into the politics of the middle east and backing a Jewish ethno-state in the middle of the Islamic world. I'm not sure that further empowering the elites who got us into this mess in the first place is the best way to get us out. We should grant those detainees captured far from any battlefield - some of whom are inevitably innocent - fair and open civilian trials imo. If we have insufficient evidence to convict them, we set them free. For those captured on the battlefield, military courts-martial under the UCMJ.
Who are we to declare war against? Al-Qaeda is not a sovereign nation, but a ragtag collection of terrorists. We did not declare war against the Barbary Pirates, nor did we declare war against Pancho Villa when we sent Pershing into Mexico after him, nor did Congress declare war against the various Indian tribes who used to massacre Americans until they were subdued. But we hanged the Indians who massacred Americans in Minnesota, after brief trials before a military tribunal, and we would have hanged Pancho Villa if we had caught him. The America that defended itself against Moslem pirates, Mexican bandits, and marauding Indians was indisputably a nation serious about protecting its citizens, and the question Buchanan poses is a relevant one.
"Who are we to declare war against?"
Against any nation we plan to conquer. Most recently, Iraq and Afghanistan.
A declaration of war against Iraq or Afghanistan would not mean anything in the case of KSM. He is not an Iraqi or an Afghan, nor was he captured in the service of Iraq or Afghanistan. He is a terrorist captured in Pakistan, who has indicated a willingness to confess his guilt to conceiving terrorist actions against Americans that did in fact kill innocent Americans. We should have obliged him, and then executed him.
And what of speedy trial? Apart from the hundreds of thorny due process, national security, and other Constitutional Law issues, is such a defendant not entitled to a speedy trial?
Oh, by the way, how many tens of millions will the taxpayers expend to pay for this trial, from start through appeals (if any are even necessary)?
Finally, we are in the middle of a 100 Years War. It began during WWII, at the latest, when the United States assumed all sorts of political and business entanglements in the Middle East, leading to the loss of our national soul. The War has been fairly evenly sustained throughout, thus far, and will only heat up in the coming 50 years.
When you start adding up the price of Israel, the Palestinian question, the Suez, the Arab-Israeli wars, the propping up of dictators, the tearing down of many of the same dictators, whorish swamps of arms for hostages and lives for oil, the attacks on U.S. military units (from USS LIBERTY to USS STARK to USS VINCENNES to USS COLE, the Marine Barracks, Khobar Towers), the two Iraq "Wars," the Afghanistan "War," and countless attacks on Americans worldwide (from Pan Am 103 to the Achille Lauro), you realize just how "hot" this war has been.
Given the clear intent of violent Islamists to fulfill the mission they believe is assigned to all Muslims by Allah, it is obvious that we are in for many more years of this War. It will only become more violent (with the use of nuclear weapons of one kind or another coming into play sooner rather than later) and more pervasive (as Islamic terrorists become more inclined to carry out violent attacks anywhere and everywhere they can). We are in for a long, difficult, deadly 50 years or more. Whether we (the West and Christianity) survive it depends upon whether we, as a people, begin to demand the leadership necessary to effectively combat our enemies. Thus far, we have been woefully inadequate to the task.
Yes, Mr. Piatak has tied off some loose ends in this confusing debate. We can each draw our own lines in history as to how long we've been at war as such, but for most citizens, 9/11 did represent a clear transition so that the average American became aware that we were in a slow motion, unconventional war, and perhaps had been for some time.
It is also useful to distinguish between terrorists like KSM acting on behalf of an organized group (with whom we've been fighting for some time) from a lone wolf type terrorist act (Tim McVeigh) or a non-terrorist criminal, like a tourist who kills someone in a bar fight and would be subject to our criminal laws. The fact we are not at war with a sovereign nation is extremely confusing, but it is a worse mistake to oversimplify the situation and demand the traditional rigidity of declared war. (Perhaps we are not the only nation who has let go of our own sovereign identity.)
Further disturbing in this mess to me are the comments by our president yesterday foreshadowing a conviction and execution of KSM. At best, this is like an idiot athlete guaranteeing a playoff win, at worst it speaks to the shambles in wisdom and structural division of powers our government has become.
The idea of declaring war is more nebulous than it seems, as Tom points out. We did not declare war against the Barbary Pirates and arguably didn't need to as long as we were just fighting pirates in a "policing action" (which is modern terminology itself). But when we actually invaded North African countries in the process, we arguably should have.
Whether or not we could/should declare war on Al-Qaeda, which is not a nation, is an interesting question. Clearly the declaration of war vs. no declaration dichotomy doesn't fit well with these sorts of ambiguous situations. But when we invaded Afghanistan and Iraq we unambiguously should have declared war.
If we actually declared war against Al-Qaeda then KSM might be an unlawful enemy combatant and we could proceed with a military tribunal, but as it stands now, he can't be an unlawful enemy combatant properly defined because he was not captured fighting for the enemy in Iraq or Afghanistan. He is a criminal and should be treated as such.
The situation is ambiguous and doesn't fit neatly in a dichotomous formula. Perhaps we should discuss the feasibility/desirability of declaring war on a non-state. Perhaps Congress needs to formulate some guidelines. But surely we can agree that it is dangerous to allow the Executive to just declare people unlawful enemy combatants without any relation to a battlefield. What is wrong with the suggestion to use Letters of Marque?
"When you start adding up the price of Israel, the Palestinian question, the Suez, the Arab-Israeli wars, the propping up of dictators, the tearing down of many of the same dictators, whorish swamps of arms for hostages and lives for oil, the attacks on U.S. military units (from USS LIBERTY to USS STARK to USS VINCENNES to USS COLE, the Marine Barracks, Khobar Towers), the two Iraq “Wars,” the Afghanistan “War,” and countless attacks on Americans worldwide (from Pan Am 103 to the Achille Lauro), you realize just how “hot” this war has been"
At whose instigation? Demanding "the leadership necessary to effectively combat our enemies" is treating the symptom - not the disease, which is U.S. intervention in a part of the globe that clearly doesn't want us there.
"Given the clear intent of violent Islamists to fulfill the mission they believe is assigned to all Muslims by Allah"
Funny how that mission never manifested itself (against the U.S.) until we unleashed the CIA on the Islamic world.
Red,
The bright line distinction that I believe is most important to preserve is not the one between enemy combatant and criminal, but between citizen and non-citizen, and that is precisely the distinction most threatened by the trial of KSM.
"But surely we can agree that it is dangerous to allow the Executive to just declare people unlawful enemy combatants without any relation to a battlefield"
One would hope! And not just that, but Obama has declared that he has the power of "preventive detention" - i.e. to abduct and cage persons the gov't deems "dangerous" who cannot be convicted in court, either because evidence is tainted, because there is insufficient evidence, or *because they have not committed a crime yet*.
"Preventive detention" - a more Orwellian locution would be hard to concoct.
"The bright line distinction that I believe is most important to preserve is not the one between enemy combatant and criminal, but between citizen and non-citizen, and that is precisely the distinction most threatened by the trial of KSM"
So no non-citizen should ever be tried in a civilian court?
Not non-citizens who wage war against the United States, as al-Qaeda has done, or as the Minnesota Sioux did, or as Pancho Villa did. What is more, if KSM is convicted in United States District Court, despite the way information was extracted from him, we may very well have laid the groundwork for the use of waterboarding on us. Earlier generations of Americans understood the importance of the distinction between citizens and non-citizens; we are so interested in granting "rights" to the whole planet that we have lost sight of it.
I agree with Red @45. I see a military trial as nearly dignifying him and his cohorts - they are nothing but criminals, and should be treated as such. Just like if Jefferson Davis made good on his promise to hold Beast Butler for trial if caught, being that he was no better than any other murderer. Military trials are in a way, a privilege; as is executing military prisoners by firing squad.
As for distinguishing between citizen and non-citizen, how would this have been handled when the United States had more sense? I note Mr. Piatak's example of the Minnesota Sioux, but what about truly foreign criminals, captured abroad? Off the top of my head I cannot think of an example.