Andy's Blog
As the esteemed 17th President of the United States Andrew Johnson once said, "Someone cue up Gwen Stefani. I need some banana-related background music."
The case of Eric Holder and the Obama Administration transferring the Khalid Sheikh Mohammed 9/11 trial from military court to civilian federal court sets quite a unique precedent.
It muddies the water as to what soldiers need to do when "capturing/arresting" terrorists on the battlefield (i.e. can they be interrogated with out an attorney?).
It communicates a message that the stance of the United States of America is that terrorism is a criminal act, not an act of war.
It complicates extradition and evidence usage if involving countries that don't agree with the States stance on the Death Penalty (i.e. Germany).
It communicates a message that the stance of the United States of America is that terrorism is a criminal act, not an act of war.
It complicates extradition and evidence usage if involving countries that don't agree with the States stance on the Death Penalty (i.e. Germany).
Graham Tells Holder We're Making History
None of these per se are wrong. But they do establish a different precedent and it doesn't appear the Obama administration has thoroughly thought through the ramifications completley (as evidence in the Lindsey Graham questioning of Eric Holder).But what drives me most bananas about the KSM trial transfer can best be explained by another case Holder represented while an attorney at the very prestigious, DC-based firm Covington & Burling.
Let's get one thing straight, Eric Holder is a very smart man and a damn good attorney. You wouldn't so much as get your resume looked at for an internship at Covington & Burling with out being intelligent, gifted and talented, let alone land a job there. While at Covington & Burling, Holder represented Chiquita International Brands (you know, the bananas) in the first case of a major U.S. corporation being convicted of financing terrorism.
What basically went down was Chiquita paid $1.7 million dollars to the terrorist organization United Self-Defense Forces of Colombia as "protection money." According to the United States government, this money was used by the USDF to purchase arms and commit terrorist acts of violence.
So what does this have to do with KSM and 9/11? Chiquita is an American company based in Cincinnati, OH. As such, they are protected under the U.S. Constitution and are granted rights and protections.
- Chiquita was innocent until proven guilty.
- Chiquita was not required to testify against themselves.
- Chiquita deserved fair (and probably received fantastic) legal counsel.
So why if terrorism is an act of war, and the terrorists are not legal citizens of the United States, are we now establishing a precedent that they should receive the same rights and privileges as civilian Americans? What purpose does that serve?
Now I don't know if the Obama administration is just moving the trials so as to expedite the process of closing Gitmo, or if they are trying to establish new policy and precedent for all terror related cases. But I do hope they have thought through all of the ramifications of their actions, as it is doubtful one could argue their actions are making the US a safer and more just society.
Not only does the Constitution not grant rights to non-Americans, it does not grant rights to any individual. Rights are inherent. The Constitution can only illegitimately remove rights from individuals or attempt to protect preexisting rights. It was set up to try to ensure the protection of the individual from the State.
The State must follow its own rules regarding the matter. If congress had declared war (as it must in order to authorize the use of military forces in the way they have been used in this "war"), then those terrorist which were captured due to involvement in the war would be considered POW's. They would then be tried in military court. However, if congress does not declare war, terrorists that are captured need to be tried in a criminal court as they are not a war criminal (there is no war).
There is already an established policy to try a terrorist in a criminal court. Look at the 1993 World Trade Center bombing where the terrorists were tried in a criminal court.
While the constitution grants some rights to citizens only (like voting) most rights (such as due process) are not limited to citizens. You are right that the jurisdiction of the constitution, for the most part, ends at US borders though.
The problem with KSM is that his case straddles two worlds. He has been picked up abroad but he is being accused of involvement in crimes committed on US soil, and thus within the jurisdiction of US courts.
So trying him in civilian courts would not open the system to any and all enemy combatants captured abroad but only those who are being accused of crimes within the US.
Let me explain on an fictional example. You have a German immigrant, Karl-Heinz Huber, living in Chicago in the 30s who becomes involved with Al Capone's gang. Feeling police on his heels, he decides to hightail it to his native Germany where he gets drafted into the Wehrmacht at the outbreak of WWII. Later he gets captured by the Americans and is held as a POW. But one of the NCO's at the camp was a cop in Chicago and recognizes Huber. Should the fact that he was picked up abroad during a war mean that he has to be tried by a military tribunal for criminal charges in the US? And transferring him to be tried by a civil court in Illinois does in no way mean that Germans suspected on war crimes during WWII cannot be tried by military tribunals for these war crimes. Even if Karl-Heinz Huber himself were accused of violating rules of war it would be appropriate to try him for these in military tribunal and in civilian court for criminal activity in the US.
Justin, I know this is a widely shared sentiment but I believe it to be fallacious and even naive. Rights are granted by society through a social contract codified in a constitution in the case of modern states. The rights individuals enjoy vary even among Western liberal democracies. So do you think US constitution alone somehow stumbled onto "inherent" rights in a way Germany, Netherlands or England did not or what? Please elaborate.
Exactly!
I would waterboard him another 185 times and then have him executed in front of his mother and his children.
Brutality is the only thing those animals respect.
Every individual has the inherent right to life, liberty, and property; but really all rights can be derived from property rights. What is a property right? As Rothbard explains, a property right is merely the exclusive right to control a scarce resource. The right to life can then be explained as the exclusive right of an individual to control their own body.
Rights cannot be granted by society. This is saying that one group of individuals are within their rights to restrict other individual(s) from acting. In other words, any system which does not utilize the inherent right to life is in fact advocating slavery at least to some degree.
USA makes the same faults that Germany, Netherlands, and England made before it. To be certain, any government is at best a persisting attack upon the rights of the individual. What the founders of the USA attempted to do, and to their detriment, is use a piece of paper to restrict the government from assaulting the individual's rights. The founders could no easier look past the need for government than most that came before them.
I understand your point and I like the formulation of "exclusive right of an individual to control their own body".
My beef is with this notion of rights being inherent. Rights, as a concept, only make sense in a society. If you live in the wilderness as a hermit, far away from any other people, there is no meaningful notion of you having "rights". Even if there are other people around, but each defends their own self-interest the best they can, the notion of "rights" is not meaningful. It only becomes meaningful when this group of people starts coalescing into a society with an implicit or explicit social contract. Only then do you have a notion of "rights" that the group is expected to honor and, as a flipside, the obligations the individual is expected to render to the group. A good fictional example of this tradeoff between rights and obligations is Robert A. Heinlein's Starship Troopers where full citizenship and right to vote is linked to military service.
I agree with the last part, without the word inherent. My beef with it is philosophical, not practical or moral though and I would endorse any word as strong as "inherent" that does not convey its philosophical problems.
The point is, rights are established by society because, as I said above, rights only make sense within a social contract. And the idealistic idea of inherent rights has to account for for the vast diversity of bodies of rights in different human civilizations.
Yes, the main purpose of the Bill of Rights is to guarantee individual rights by restricting what the government can do. However, how far would your inherent "right" to life or "right" to property go if there was no government protecting your rights from your fellow man? You have to look no further than a failed state like Somalia.
P.S.: What is it that you are munching on?