Incoherent terrorism policy

Charles Krauthammer says that President Obama and his administration are confused and inconsistent when it comes to dealing with terrorism:

The reason the country is uneasy about the Obama administration's response to this attack is a distinct sense of not just incompetence but incomprehension. From the very beginning, President Obama has relentlessly tried to play down and deny the nature of the terrorist threat we continue to face. Napolitano renames terrorism "man-caused disasters." Obama goes abroad and pledges to cleanse America of its post-9/11 counterterrorist sins. Hence, Guantanamo will close, CIA interrogators will face a special prosecutor, and Khalid Sheik Mohammed will bask in a civilian trial in New York — a trifecta of political correctness and image management.

And just to make sure even the dimmest understand, Obama banishes the term "war on terror." It's over — that is, if it ever existed.

Obama may have declared the war over. Unfortunately, al-Qaeda has not. Which gives new meaning to the term "asymmetric warfare."

And produces linguistic — and logical — oddities that littered Obama's public pronouncements following the Christmas Day attack. In his first statement, Obama referred to Umar Farouk Abdulmutallab as "an isolated extremist." This is the same president who, after the Fort Hood, Tex., shooting, warned us "against jumping to conclusions" — code for daring to associate the mass murder there with Nidal Hasan's Islamist ideology. Yet, with Abdulmutallab, Obama jumped immediately to the conclusion, against all existing evidence, that the would-be bomber acted alone.

More jarring still were Obama's references to the terrorist as a "suspect" who "allegedly tried to ignite an explosive device." You can hear the echo of FDR: "Yesterday, December 7, 1941 — a date which will live in infamy — Japanese naval and air force suspects allegedly bombed Pearl Harbor."

Obama reassured the nation that this "suspect" had been charged. Reassurance? The president should be saying: We have captured an enemy combatant — an illegal combatant under the laws of war: no uniform, direct attack on civilians — and now to prevent future attacks, he is being interrogated regarding information he may have about al-Qaeda in Yemen.

Instead, Abdulmutallab is dispatched to some Detroit-area jail and immediately lawyered up. At which point — surprise! — he stops talking.

This absurdity renders hollow Obama's declaration that "we will not rest until we find all who were involved." Once we've given Abdulmutallab the right to remain silent, we have gratuitously forfeited our right to find out from him precisely who else was involved, namely those who trained, instructed, armed and sent him.

This is all quite mad even in Obama's terms. He sends 30,000 troops to fight terror overseas, yet if any terrorists come to attack us here, they are magically transformed from enemy into defendant.

The logic is perverse. If we find Abdulmutallab in an al-Qaeda training camp in Yemen, where he is merely preparing for a terror attack, we snuff him out with a Predator — no judge, no jury, no qualms. But if we catch him in the United States in the very act of mass murder, he instantly acquires protection not just from execution by drone but even from interrogation.

“Lawyered up.” Good word. The point is, we need to decide whether to treat terrorists as unlawful (because they are not fighting under a lawful chain of command as soldiers of a nation do) enemy combatants or as criminals. If the former, they can be interrogated (which does NOT have to include torture) and indefinitely detained. If the latter, they have the right to remain silent! Nor may they or their camps be searched or their communications tapped without a warrant. Nor should they be subject to use of force when they are not in the process of committing a crime, as in having Hellfire missiles from a drone strike their camps. Instead, they would need to face extradition. We are trying to have it both ways at different times.

UPDATE: The administration has confirmed that it will try the Underwear Bomber in federal court. The president’s chief counterterrorism advisor John Brennan said that although he is now exercising his right to remain silent, we can still extract information from him by plea bargaining. Which means that the more he talks, the more he gets off!

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Dan Kempin

    I think the problem is broader than what Krauthammer identifies here. That is to say, I think it goes beyond the president and his administration. The word “incomprehension” was used. There is an incomprehension, a blindness, an inability for western culture to grasp the Muslim mind. This is particularly true among the secular elite, and it does lead to the sort of irrational policies identified in the article. Still, while Krauthammer recognizes the error in how the administration is framing the threat, he is himself framing it as one of war and policy, which ends with the vague notion of fighting “terror.” Closer to the truth, perhaps, and a bit more comforting, but still far from understanding the Muslim religion and thus understanding the nature of the threat.

  • Dan Kempin

    I think the problem is broader than what Krauthammer identifies here. That is to say, I think it goes beyond the president and his administration. The word “incomprehension” was used. There is an incomprehension, a blindness, an inability for western culture to grasp the Muslim mind. This is particularly true among the secular elite, and it does lead to the sort of irrational policies identified in the article. Still, while Krauthammer recognizes the error in how the administration is framing the threat, he is himself framing it as one of war and policy, which ends with the vague notion of fighting “terror.” Closer to the truth, perhaps, and a bit more comforting, but still far from understanding the Muslim religion and thus understanding the nature of the threat.

  • Carl Vehse

    “The reason the country is uneasy about the Obama administration’s response to this attack is a distinct sense of not just incompetence but incomprehension.

    In the coming year the vastness and depth of the 0bama administration’s incompetence and incomprehension will become as horribly apparent as the corruption he brought in.

    I’m not saying that those who voted for 0bama should eat a bullet, but if they have an iota of remorse for the malevolence they have elected to office, they will show it by never voting in an election again.

  • Carl Vehse

    “The reason the country is uneasy about the Obama administration’s response to this attack is a distinct sense of not just incompetence but incomprehension.

    In the coming year the vastness and depth of the 0bama administration’s incompetence and incomprehension will become as horribly apparent as the corruption he brought in.

    I’m not saying that those who voted for 0bama should eat a bullet, but if they have an iota of remorse for the malevolence they have elected to office, they will show it by never voting in an election again.

  • Jonathan

    Technically, one who is characterized as an “unlawful combatant” is, by definition, “a criminal” and is therefore subject to the criminal laws. A person in such status can be tried by the jurisdiction in which he is captured, or, if under martial law, he could be tried in a military court-martial for his crime.

    If he is determined to be a “regular combatant,” he would have Prisoner of War (POW) status and would enjoy “combatant immunity” unless his actions also amount to “war crimes,” such as attacking civilians. In that case, he should be tried either by the international war crimes tribunal, or by military commission.

    So, perhaps we should recognize these individuals as regular members of the armed forces of the nongeographic Islamic state of Al Qaeda and its allies– that is give them presumotive “regular combatant” status and try them for “war crimes” for their attacks on civilians. The military would then be free to continue snuffing them out whenever and wherever they are found.

    But then, that would mean a war on Islam, and thus politically unacceptable.

  • Jonathan

    Technically, one who is characterized as an “unlawful combatant” is, by definition, “a criminal” and is therefore subject to the criminal laws. A person in such status can be tried by the jurisdiction in which he is captured, or, if under martial law, he could be tried in a military court-martial for his crime.

    If he is determined to be a “regular combatant,” he would have Prisoner of War (POW) status and would enjoy “combatant immunity” unless his actions also amount to “war crimes,” such as attacking civilians. In that case, he should be tried either by the international war crimes tribunal, or by military commission.

    So, perhaps we should recognize these individuals as regular members of the armed forces of the nongeographic Islamic state of Al Qaeda and its allies– that is give them presumotive “regular combatant” status and try them for “war crimes” for their attacks on civilians. The military would then be free to continue snuffing them out whenever and wherever they are found.

    But then, that would mean a war on Islam, and thus politically unacceptable.

  • Dan Kempin

    Jonathan, #3,

    “But then, that would mean a war on Islam, and thus politically unacceptable.”

    I am not sure whether your comment is tongue-in-cheek, but it describes precisely the dismissive logic that is being used:

    The problem can’t be Islam, so let’s move on to another solution.

    Nowhere, though, is it explained why it is unacceptable to point the finger at Islam. Is it because we are genuinely persuaded that it is a peace loving religion? Is it because we are afraid that we would be “picking a fight” that we could not win? Is it because we just don’t want to pay the price involved in identifying the issue and resolving it? We may never know. The subject is taboo. Conventional wisdom seems to be that it is better to cover your ears and say “la, la, la,” where “la, la, la,” is the sound of westerners vehemently debating one another about the status of the people who have just tried to kill them.

  • Dan Kempin

    Jonathan, #3,

    “But then, that would mean a war on Islam, and thus politically unacceptable.”

    I am not sure whether your comment is tongue-in-cheek, but it describes precisely the dismissive logic that is being used:

    The problem can’t be Islam, so let’s move on to another solution.

    Nowhere, though, is it explained why it is unacceptable to point the finger at Islam. Is it because we are genuinely persuaded that it is a peace loving religion? Is it because we are afraid that we would be “picking a fight” that we could not win? Is it because we just don’t want to pay the price involved in identifying the issue and resolving it? We may never know. The subject is taboo. Conventional wisdom seems to be that it is better to cover your ears and say “la, la, la,” where “la, la, la,” is the sound of westerners vehemently debating one another about the status of the people who have just tried to kill them.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    “The word “incomprehension” was used. There is an incomprehension, a blindness, an inability for western culture to grasp the Muslim mind.’
    And it isn’t that hard of mind to grasp.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    “The word “incomprehension” was used. There is an incomprehension, a blindness, an inability for western culture to grasp the Muslim mind.’
    And it isn’t that hard of mind to grasp.

  • Joe

    Jonathan – you are correct that, under the parts of the Geneva convention that we have ratified and are bound by, an unlawful combatant COULD be tried in our criminal justice system – but that does not mean that they have to be tried there. They are not regular troops and thus are not afforded any POW rights. The issue that many refuse to recognize is that these unlawful cocmbatants have no recognized rights under any system of law that the US has signed on to. We literally could do whatever we wanted to do. The real question is what should we do?

  • Joe

    Jonathan – you are correct that, under the parts of the Geneva convention that we have ratified and are bound by, an unlawful combatant COULD be tried in our criminal justice system – but that does not mean that they have to be tried there. They are not regular troops and thus are not afforded any POW rights. The issue that many refuse to recognize is that these unlawful cocmbatants have no recognized rights under any system of law that the US has signed on to. We literally could do whatever we wanted to do. The real question is what should we do?

  • fws

    “The point is, we need to decide whether to treat terrorists as unlawful …enemy combatants or as criminals. If the former, THEY CAN BE interrogated (which does NOT have to include torture) and indefinitely detained.”

    Our founders felt that the right to avoid self-incrimination, speedy trial by jury of peers and habius corpus and such legal protections fell under the category of “inalienable human rights”.

    Our current military trial system had its start in the Mexican American wars and was an effort embracing this idea. It was a novelty as well.

    I think you are falling into the exact error you decry here Dr Veith. The point is not to be “lawful”. The point is rather to find some underlying basis for deciding if and when laws are just and worthy. I think even pagans know this as “The Golden Rule”. This IS the sum of the law in the earthly kingdom that God blesses as outward righteousness and brings nations to heel to.

    Nazi germans followed their own laws to the letter after all. But they failed the golden rule test. In the case of our government, you should imagine yourself, your son, daughter or other loved one when you think of what laws should be made and followed. Using this standard, indefinite detention does not meet the smell test does it?

    Whatever arbitrary power we give the government by setting up a separate standard for trying non-americans will surely be turned against americans given the right times and circumstances. THIS is the spirit that animated the founders. The golden rule was followed not to be “nice” but for our own protection from tyranny.

    This looks like strength and not weakness. I would rather our government follow principle (specifically the Golden Rule) wherever it leads and trust it because this is God´s Will. God has promised to bless nations for doing this.

  • fws

    “The point is, we need to decide whether to treat terrorists as unlawful …enemy combatants or as criminals. If the former, THEY CAN BE interrogated (which does NOT have to include torture) and indefinitely detained.”

    Our founders felt that the right to avoid self-incrimination, speedy trial by jury of peers and habius corpus and such legal protections fell under the category of “inalienable human rights”.

    Our current military trial system had its start in the Mexican American wars and was an effort embracing this idea. It was a novelty as well.

    I think you are falling into the exact error you decry here Dr Veith. The point is not to be “lawful”. The point is rather to find some underlying basis for deciding if and when laws are just and worthy. I think even pagans know this as “The Golden Rule”. This IS the sum of the law in the earthly kingdom that God blesses as outward righteousness and brings nations to heel to.

    Nazi germans followed their own laws to the letter after all. But they failed the golden rule test. In the case of our government, you should imagine yourself, your son, daughter or other loved one when you think of what laws should be made and followed. Using this standard, indefinite detention does not meet the smell test does it?

    Whatever arbitrary power we give the government by setting up a separate standard for trying non-americans will surely be turned against americans given the right times and circumstances. THIS is the spirit that animated the founders. The golden rule was followed not to be “nice” but for our own protection from tyranny.

    This looks like strength and not weakness. I would rather our government follow principle (specifically the Golden Rule) wherever it leads and trust it because this is God´s Will. God has promised to bless nations for doing this.

  • Jonathan

    @6 “The issue that many refuse to recognize is that these unlawful combatants have no recognized rights under any system of law that the US has signed on to.”

    But US policy has always been to treat them as “criminals” who are afforded rights of A criminal system, what ever system that may be.

    So, I give POTUS and SCOTUS credit for getting it right insofar as they have not bought in to the false logic that these “unlawful combatant” status criminals are not subject to ANY rights and we can hold them indefinitely in that status. As for choice of criminal forum, that’s another matter.

    However, I do believe that we are perhaps missing an opportunity that comes from assigning them enemy combatant status. (1) It makes them lawful targets for destruction wherever they are found, (2) we can try them as “war criminals” where possible if they are captured (maybe even force the international community in the Hague to get their fingers dirty in that job), and (3) you can also hold POWs indefinitely as long as the war is ongoing without a colorable objection.

    Kill ‘em legally or hold ‘em legally if we can’t, that’s what we want, no? But, again, to do so by asigning them regular combatants requires that we acknowledge we are at war with a nongeographic enemy state actor–politically untenable.

  • Jonathan

    @6 “The issue that many refuse to recognize is that these unlawful combatants have no recognized rights under any system of law that the US has signed on to.”

    But US policy has always been to treat them as “criminals” who are afforded rights of A criminal system, what ever system that may be.

    So, I give POTUS and SCOTUS credit for getting it right insofar as they have not bought in to the false logic that these “unlawful combatant” status criminals are not subject to ANY rights and we can hold them indefinitely in that status. As for choice of criminal forum, that’s another matter.

    However, I do believe that we are perhaps missing an opportunity that comes from assigning them enemy combatant status. (1) It makes them lawful targets for destruction wherever they are found, (2) we can try them as “war criminals” where possible if they are captured (maybe even force the international community in the Hague to get their fingers dirty in that job), and (3) you can also hold POWs indefinitely as long as the war is ongoing without a colorable objection.

    Kill ‘em legally or hold ‘em legally if we can’t, that’s what we want, no? But, again, to do so by asigning them regular combatants requires that we acknowledge we are at war with a nongeographic enemy state actor–politically untenable.

  • Jonathan

    FWS, Happy New Year! Do you seriously think that the terrorists give a ____ about the Golden Rule or feel any sentiment about it dealing with us infidels? They only *law* need heed a is a can of good OT Canaanite whoop uss on their hardened hearts.

  • Jonathan

    FWS, Happy New Year! Do you seriously think that the terrorists give a ____ about the Golden Rule or feel any sentiment about it dealing with us infidels? They only *law* need heed a is a can of good OT Canaanite whoop uss on their hardened hearts.

  • DonS

    Umar Farouk Abdulmutallab, by all accounts, had no legal right to enter the U.S., and is not a U.S. citizen. Therefore, given his act of terrorism, we had every right to treat him as an unlawful combatant, rather than a criminal defendant. For some reason, we immediately decided that he acted alone. However, it would have been nice to have the opportunity to interrogate him on that issue and others, and also to find out how he was able to slip by so many layers of security. That opportunity has been forever lost, except, apparently, to the extent that we “plea bargain” away our right to punish him for his evil act and to lock him away so that he cannot attempt such evil again.

    Who will serve as his judge and jury in federal civilian court? Can we protect them from any possible reprisals by al-Qaeda or other Muslim extremists? Would those of you who advocate treating him as a criminal defendant be willing to risk the lives of yourself and your family to serve on his jury?

  • DonS

    Umar Farouk Abdulmutallab, by all accounts, had no legal right to enter the U.S., and is not a U.S. citizen. Therefore, given his act of terrorism, we had every right to treat him as an unlawful combatant, rather than a criminal defendant. For some reason, we immediately decided that he acted alone. However, it would have been nice to have the opportunity to interrogate him on that issue and others, and also to find out how he was able to slip by so many layers of security. That opportunity has been forever lost, except, apparently, to the extent that we “plea bargain” away our right to punish him for his evil act and to lock him away so that he cannot attempt such evil again.

    Who will serve as his judge and jury in federal civilian court? Can we protect them from any possible reprisals by al-Qaeda or other Muslim extremists? Would those of you who advocate treating him as a criminal defendant be willing to risk the lives of yourself and your family to serve on his jury?

  • Peter Leavitt

    Abdlmutallab is an unlawful enemy combatant who should be rigorously interrogated at Gitmo and then tried before a military commission with a military defense attorney. I’ll believe Obama’s recent anti-terrorist rhetoric when he moves Abdultallab and Khalik Sheik Muhammad back to Gitmo for military trial and when he abandons present plans to send 98 Yemini prisoners back to Yemen.

    The maddening thing about Obama is more his tendency to talk on both sides of an issue than his incomprehension. He learned to do this a long time to go as a follower of Saul Alinsky”s techniques of deception. He even taught these techniques to other community organizers.

    Prof. Charles Ogletree of Harvard Law was amazed at Obama’s ability in law school to give a talk on a controversial subject and convince both sides he was on their side.

  • Peter Leavitt

    Abdlmutallab is an unlawful enemy combatant who should be rigorously interrogated at Gitmo and then tried before a military commission with a military defense attorney. I’ll believe Obama’s recent anti-terrorist rhetoric when he moves Abdultallab and Khalik Sheik Muhammad back to Gitmo for military trial and when he abandons present plans to send 98 Yemini prisoners back to Yemen.

    The maddening thing about Obama is more his tendency to talk on both sides of an issue than his incomprehension. He learned to do this a long time to go as a follower of Saul Alinsky”s techniques of deception. He even taught these techniques to other community organizers.

    Prof. Charles Ogletree of Harvard Law was amazed at Obama’s ability in law school to give a talk on a controversial subject and convince both sides he was on their side.

  • Jonathan

    The term is “unlawful combatant” not “unlawful *enemy* combatant.” To throw *enemy* into the term confuses the status with “enemy combatant” status whichis a war-time status.

    “Unlawful combatants” are by definition and have been historically treated including by US policy as “common criminals.”

    You may disagree with POTUS’ decision to steer clear of the “war on terror” label implcations, but you have to admit that at least he is being consistent with how he is treating those caught in the act–as “unlawful combatants” or in other words “common criminals.”

    I think the last administration would have done better to give them combatant status; it would have lent legitimacy to the “GWOT.” How can you have a GWOT and not have enemy combatants? Answer: it was politically untenable even then as now, to deem it a war against nongeographic nation state of Al Qaeda Islam.

  • Jonathan

    The term is “unlawful combatant” not “unlawful *enemy* combatant.” To throw *enemy* into the term confuses the status with “enemy combatant” status whichis a war-time status.

    “Unlawful combatants” are by definition and have been historically treated including by US policy as “common criminals.”

    You may disagree with POTUS’ decision to steer clear of the “war on terror” label implcations, but you have to admit that at least he is being consistent with how he is treating those caught in the act–as “unlawful combatants” or in other words “common criminals.”

    I think the last administration would have done better to give them combatant status; it would have lent legitimacy to the “GWOT.” How can you have a GWOT and not have enemy combatants? Answer: it was politically untenable even then as now, to deem it a war against nongeographic nation state of Al Qaeda Islam.

  • Kirk

    The way I see it, Mr. Underwear bomber came through this business with 3rd degree burns on his crotch. I’d imagine that any punishment we can inflict (aside, of course, from causing further 3rd degree burns to his crotch) will seem like small fries to him.

    But seriously, why not let him plea off? After all, indefinite incarceration with a lack of trial and “advanced interrogation techniques” are rarely trumpeted as triumphs of justice, but rather an amoral expediency to further the war on terror. Couldn’t the same be accomplished by allowing this fellow to turn in his cohorts? It may not be as satisfying, but perhaps it will lead us to bigger fish.

  • Kirk

    The way I see it, Mr. Underwear bomber came through this business with 3rd degree burns on his crotch. I’d imagine that any punishment we can inflict (aside, of course, from causing further 3rd degree burns to his crotch) will seem like small fries to him.

    But seriously, why not let him plea off? After all, indefinite incarceration with a lack of trial and “advanced interrogation techniques” are rarely trumpeted as triumphs of justice, but rather an amoral expediency to further the war on terror. Couldn’t the same be accomplished by allowing this fellow to turn in his cohorts? It may not be as satisfying, but perhaps it will lead us to bigger fish.

  • http://www.toddstadler.com/ tODD

    Oh good. Another “conservative” who has decided to air his extreme distaste for the Constitution. Remember, kids: if you can label it “terrorism”, then no laws apply, especially that old ragged document which is simply incapable of dealing with this modern scenario.

    But if the Constitution won’t stop him, why would things like facts get in the way of his hackery? Let’s see, Krauthammer says, “Napolitano renames terrorism ‘man-caused disasters.’” But the actual interview reads:

    SPIEGEL: Madame Secretary, in your first testimony to the US Congress as Homeland Security Secretary you never mentioned the word “terrorism.” Does Islamist terrorism suddenly no longer pose a threat to your country?
    Napolitano: Of course it does. I presume there is always a threat from terrorism. In my speech, although I did not use the word “terrorism,” I referred to “man-caused” disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur.

    Krauthammer says, “Obama banishes the term ‘war on terror.’ It’s over — that is, if it ever existed,” in the process choosing to focus more on puerile wordplay than Obama’s actual accomplishments in combatting terrorism. Why talk tactics when you can shout about words? Perhaps Krauthammer also believes the phrase “Freedom fries” is more significant to our country than any of the words in the Constitution.

    Why else would Krauthammer — who presumably understands our legal system, whether or not he likes it — protest the bog-standard usage of “alleged” in reference to a person not subject to due process? You know what? Before he was put in jail, Timothy McVeigh also “allegedly” blew up the Murrah building. It doesn’t matter how obvious a person’s guilt is to you or me — it has something to do with our legal system’s presumptions. The same presumptions that Krauthammer hates.

    Oh, and the Fifth Amendment? Man, do “conservatives” ever hate that! Filthy commie amendment.

    Can we ship Krauthammer and his ilk to some country that doesn’t afford all these rights? Maybe, I don’t know, Yemen?

  • http://www.toddstadler.com/ tODD

    Oh good. Another “conservative” who has decided to air his extreme distaste for the Constitution. Remember, kids: if you can label it “terrorism”, then no laws apply, especially that old ragged document which is simply incapable of dealing with this modern scenario.

    But if the Constitution won’t stop him, why would things like facts get in the way of his hackery? Let’s see, Krauthammer says, “Napolitano renames terrorism ‘man-caused disasters.’” But the actual interview reads:

    SPIEGEL: Madame Secretary, in your first testimony to the US Congress as Homeland Security Secretary you never mentioned the word “terrorism.” Does Islamist terrorism suddenly no longer pose a threat to your country?
    Napolitano: Of course it does. I presume there is always a threat from terrorism. In my speech, although I did not use the word “terrorism,” I referred to “man-caused” disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur.

    Krauthammer says, “Obama banishes the term ‘war on terror.’ It’s over — that is, if it ever existed,” in the process choosing to focus more on puerile wordplay than Obama’s actual accomplishments in combatting terrorism. Why talk tactics when you can shout about words? Perhaps Krauthammer also believes the phrase “Freedom fries” is more significant to our country than any of the words in the Constitution.

    Why else would Krauthammer — who presumably understands our legal system, whether or not he likes it — protest the bog-standard usage of “alleged” in reference to a person not subject to due process? You know what? Before he was put in jail, Timothy McVeigh also “allegedly” blew up the Murrah building. It doesn’t matter how obvious a person’s guilt is to you or me — it has something to do with our legal system’s presumptions. The same presumptions that Krauthammer hates.

    Oh, and the Fifth Amendment? Man, do “conservatives” ever hate that! Filthy commie amendment.

    Can we ship Krauthammer and his ilk to some country that doesn’t afford all these rights? Maybe, I don’t know, Yemen?

  • http://www.toddstadler.com/ tODD

    Imagine that one of our CIA agents were illegally operating in some foreign country, not wearing a uniform. Purely hypothetical, of course — never actually happens. He’s caught by officials over there.

    What would you support their doing to him? Waterboarding? Tortu… er, “extensive interrogation techniques”? Locking him up indefinitely without charging him with anything?

    Would all you “conservatives” be okay with that? Support them doing that to one of our guys?

    Just wondering.

  • http://www.toddstadler.com/ tODD

    Imagine that one of our CIA agents were illegally operating in some foreign country, not wearing a uniform. Purely hypothetical, of course — never actually happens. He’s caught by officials over there.

    What would you support their doing to him? Waterboarding? Tortu… er, “extensive interrogation techniques”? Locking him up indefinitely without charging him with anything?

    Would all you “conservatives” be okay with that? Support them doing that to one of our guys?

    Just wondering.

  • http://www.toddstadler.com/ tODD

    DonS (@10) also points out another reason why we should scrap our legal system (even though he makes a living off of it): scared juries! Why, jurors (and judges) might be scared to sit on a trial for terrorists! Or mobsters! Or gang members! Or homicidal cult members! Or angry people with friends!

    That’s why we can’t let any of these types of people be exposed to our legal system. All of them — terrorists, mobsters, gang members, cult members, angry people — should be locked up indefinitely and probably tortured. And, of course, by “tortured”, I don’t actually mean tortured, I just mean, like, torture-light. Which isn’t torture.

    I mean, I know that no one would ever have the guts to serve as a juror against a mobster! How could our legal and police systems possibly protect such a juror?

  • http://www.toddstadler.com/ tODD

    DonS (@10) also points out another reason why we should scrap our legal system (even though he makes a living off of it): scared juries! Why, jurors (and judges) might be scared to sit on a trial for terrorists! Or mobsters! Or gang members! Or homicidal cult members! Or angry people with friends!

    That’s why we can’t let any of these types of people be exposed to our legal system. All of them — terrorists, mobsters, gang members, cult members, angry people — should be locked up indefinitely and probably tortured. And, of course, by “tortured”, I don’t actually mean tortured, I just mean, like, torture-light. Which isn’t torture.

    I mean, I know that no one would ever have the guts to serve as a juror against a mobster! How could our legal and police systems possibly protect such a juror?

  • DonS

    tODD @ 14-16: I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution. Even if you carve out an exception to that principle for those who disregard our immigration laws, I don’t see why that exception needs to extend to terrorists entering the country solely for the purpose of violent aggression against the U.S. and its citizens. As for our CIA agents, caught operating in other countries, I can assure you that they are not afforded the rights of that country’s citizens, whether we conservatives are “OK” with it, or not. CIA agents willingly accept the risk of capture, torture, and possible death when they accept their assignments.

    So, I see that you have volunteered to serve on the Underpants bomber’s jury. Excellent — I’m sure your wife will be thrilled. Unfortunately, mobsters, gang members, and the like must go through our civil justice system, because they are entitled to that process under the Constitution. Not so for middle eastern terrorists.

  • DonS

    tODD @ 14-16: I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution. Even if you carve out an exception to that principle for those who disregard our immigration laws, I don’t see why that exception needs to extend to terrorists entering the country solely for the purpose of violent aggression against the U.S. and its citizens. As for our CIA agents, caught operating in other countries, I can assure you that they are not afforded the rights of that country’s citizens, whether we conservatives are “OK” with it, or not. CIA agents willingly accept the risk of capture, torture, and possible death when they accept their assignments.

    So, I see that you have volunteered to serve on the Underpants bomber’s jury. Excellent — I’m sure your wife will be thrilled. Unfortunately, mobsters, gang members, and the like must go through our civil justice system, because they are entitled to that process under the Constitution. Not so for middle eastern terrorists.

  • http://www.toddstadler.com/ tODD

    Don (@17), you said, “I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution.” What do you mean by “legal occupants”? Do you think any and all tourists are free from any rights in our country? Since that would be a ridiculous stance, I assume not. But then, on what grounds do you apparently claim that Abdulmutallab was an “illegal occupant”?

    “As for our CIA agents, caught operating in other countries, I can assure you that they are not afforded the rights of that country’s citizens.” You’ve dodged the question. The question is: do you approve of those other countries doing what they will with our agents? Is it okay with you?

    “I see that you have volunteered to serve on the Underpants bomber’s jury.” You know what? If I were called up for jury duty, and this ended up being the case, I wouldn’t try to make up some pathetic excuse to get out of it. It’s my duty as a citizen, and if my country called upon me to do it, I would to the best of my ability. I can’t believe the same people who have no problem praising the bravery of our soldiers have such little appreciation for the bravery of those in our country who serve as jurors. I guess those who serve on mobster cases are just suckers, eh, Don?

    “Unfortunately, mobsters, gang members, and the like must go through our civil justice system.” Yes, unfortunately. How terrible that they’re given the same rights as you and I.

    Seriously, when did “conservatives” start basing their judgments on fear and a complete disregard for the Constitution?

    “Not so for middle eastern terrorists.” Right, but any terrorists who are homegrown get full rights as spelled out in the Constitution, right? Whoops, unless you have a foreign-type name, like Padilla. Maybe we should just say that anyone who’s Muslim doesn’t get full rights of the Constitution, no matter what their citizenship?

  • http://www.toddstadler.com/ tODD

    Don (@17), you said, “I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution.” What do you mean by “legal occupants”? Do you think any and all tourists are free from any rights in our country? Since that would be a ridiculous stance, I assume not. But then, on what grounds do you apparently claim that Abdulmutallab was an “illegal occupant”?

    “As for our CIA agents, caught operating in other countries, I can assure you that they are not afforded the rights of that country’s citizens.” You’ve dodged the question. The question is: do you approve of those other countries doing what they will with our agents? Is it okay with you?

    “I see that you have volunteered to serve on the Underpants bomber’s jury.” You know what? If I were called up for jury duty, and this ended up being the case, I wouldn’t try to make up some pathetic excuse to get out of it. It’s my duty as a citizen, and if my country called upon me to do it, I would to the best of my ability. I can’t believe the same people who have no problem praising the bravery of our soldiers have such little appreciation for the bravery of those in our country who serve as jurors. I guess those who serve on mobster cases are just suckers, eh, Don?

    “Unfortunately, mobsters, gang members, and the like must go through our civil justice system.” Yes, unfortunately. How terrible that they’re given the same rights as you and I.

    Seriously, when did “conservatives” start basing their judgments on fear and a complete disregard for the Constitution?

    “Not so for middle eastern terrorists.” Right, but any terrorists who are homegrown get full rights as spelled out in the Constitution, right? Whoops, unless you have a foreign-type name, like Padilla. Maybe we should just say that anyone who’s Muslim doesn’t get full rights of the Constitution, no matter what their citizenship?

  • DonS

    tODD @ 18: C’mon, tODD, tourists are generally legally in our country, aren’t they? Either they have a duly issued visa, or they are from a country that has a reciprocal arrangement with the U.S. so that they don’t need a visa. In any event, they should be carrying a passport. The bomber, in this case, as it has been reported, had no passport or visa, and had no legal right to be in the U.S. I think that makes a difference.

    The answer to your question is, yes and no. I don’t expect a CIA agent, operating illegally in a country, to be afforded the same rights and privileges as citizens of that country, if caught. I do expect him/her to be treated in a humane, measured way, proportional to how he/she was acting in that country. If he/she was attempting to murder 200+ innocent civilians in an all-out act of aggression against that country, then a measured response may include difficult interrogation and possible death.

    Perhaps you will someday have the privilege of serving on the jury for an international terrorist. I, too, exercise my responsibility to serve on juries when my turn comes up. However, our criminal justice system is not equipped to try international terrorists, nor are you a “peer” of such a terrorist. We have enough problems without stressing the system by trying murderers it is not equipped to deal with, and just because we sometimes are called to risk death in our duty to country is no reason to heedlessly risk our civilian jurists and judges by asking them to do something the federal judiciary is ill equipped to do.

    I would also be interested in your take on the problem of maintaining state secrets in such an open procedure, or whether terrorists taken on the battlefield, outside the U.S., should be Mirandized and afforded immediate legal counsel so that we don’t risk later acquittal, as will be the case with the Gitmo defendants. Do you agree with Obama’s decision to try some of these types of defendants in federal court in NY, or is your opinion limited to the underpants bomber because he was caught in the U.S.?

  • DonS

    tODD @ 18: C’mon, tODD, tourists are generally legally in our country, aren’t they? Either they have a duly issued visa, or they are from a country that has a reciprocal arrangement with the U.S. so that they don’t need a visa. In any event, they should be carrying a passport. The bomber, in this case, as it has been reported, had no passport or visa, and had no legal right to be in the U.S. I think that makes a difference.

    The answer to your question is, yes and no. I don’t expect a CIA agent, operating illegally in a country, to be afforded the same rights and privileges as citizens of that country, if caught. I do expect him/her to be treated in a humane, measured way, proportional to how he/she was acting in that country. If he/she was attempting to murder 200+ innocent civilians in an all-out act of aggression against that country, then a measured response may include difficult interrogation and possible death.

    Perhaps you will someday have the privilege of serving on the jury for an international terrorist. I, too, exercise my responsibility to serve on juries when my turn comes up. However, our criminal justice system is not equipped to try international terrorists, nor are you a “peer” of such a terrorist. We have enough problems without stressing the system by trying murderers it is not equipped to deal with, and just because we sometimes are called to risk death in our duty to country is no reason to heedlessly risk our civilian jurists and judges by asking them to do something the federal judiciary is ill equipped to do.

    I would also be interested in your take on the problem of maintaining state secrets in such an open procedure, or whether terrorists taken on the battlefield, outside the U.S., should be Mirandized and afforded immediate legal counsel so that we don’t risk later acquittal, as will be the case with the Gitmo defendants. Do you agree with Obama’s decision to try some of these types of defendants in federal court in NY, or is your opinion limited to the underpants bomber because he was caught in the U.S.?

  • Peter Leavitt

    Victor Davis Hanson today points out that Obama has had to face the reality of jihadi’s war against the U.S. He writes:

    But Obama has discovered that there really are radical Islamic threats; that Bush’s record of seven years of security was no accident; and that the “good” war is heating up. Obama has been forced by events to quietly find ways of emulating Bush’s successful anti-terrorism formula, while making loud but empty declarations to mollify his liberal base (which so far seems pacified that Guantanamo is “virtually” closed, and that KSM is “virtually” facing an ACLU dream trial).

  • Peter Leavitt

    Victor Davis Hanson today points out that Obama has had to face the reality of jihadi’s war against the U.S. He writes:

    But Obama has discovered that there really are radical Islamic threats; that Bush’s record of seven years of security was no accident; and that the “good” war is heating up. Obama has been forced by events to quietly find ways of emulating Bush’s successful anti-terrorism formula, while making loud but empty declarations to mollify his liberal base (which so far seems pacified that Guantanamo is “virtually” closed, and that KSM is “virtually” facing an ACLU dream trial).

  • http://www.toddstadler.com/ tODD

    Remember, Don (@17), we are discussing your assertion that “I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution,” which phrase you applied to Abdulmutallab.

    You are incorrect when you state that “The bomber, in this case, as it has been reported, had no passport or visa, and had no legal right to be in the U.S.” It is not difficult to find evidence contrary to what you claim:

    The [Dutch] ministry also shot down claims that Abdulmutallab had not shown a passport at the departure gate, or had tried to board without presenting one. “He identified himself with a Nigerian passport,” Erik Akerboom, head of counter-terrorism agency NCTb, told reporters.[1]

    Mr. Abdulmutallab was issued a regular visitor’s visa by the United States Embassy in London in June 2008, the administration official said. … He was granted a two-year visa, which is still valid, the official said.[2]

    In short, he had as much a right to be here as every other tourist with a passport and a visa, and as much a right to our legal system as any tourist. So your “illegal occupant” argument is a red herring.

    And your arguments about CIA agents and “innocent civilians” ignores the fact that our own country has un-uniformed combatants in other countries. I really think you’re missing the point of my argument, but I’m forced to conclude that you’re okay with CIA members being tortured or denied due process in carrying out their missions, at least if you are to be consistent.

    Also, you might as well also argue that “our criminal justice system is not equipped to try [mobsters], nor are you a ‘peer’ of such a [mobster].” And just like that, we can begin cutting corners off the Constitution! Who else doesn’t it apply to? Only time will tell! Sorry, folks, [your group here] can’t be afforded due process because someone decided the “federal judiciary is ill equipped” to handle your case. Off to the gulag! Long live freedom!

    [1] nytimes.com/reuters/2009/12/30/world/international-security-airline.html
    [2] nytimes.com/2009/12/27/us/27terror.html

  • http://www.toddstadler.com/ tODD

    Remember, Don (@17), we are discussing your assertion that “I don’t see why those who are neither citizens nor legal occupants of U.S. territory are entitled to rights under the U.S. Constitution,” which phrase you applied to Abdulmutallab.

    You are incorrect when you state that “The bomber, in this case, as it has been reported, had no passport or visa, and had no legal right to be in the U.S.” It is not difficult to find evidence contrary to what you claim:

    The [Dutch] ministry also shot down claims that Abdulmutallab had not shown a passport at the departure gate, or had tried to board without presenting one. “He identified himself with a Nigerian passport,” Erik Akerboom, head of counter-terrorism agency NCTb, told reporters.[1]

    Mr. Abdulmutallab was issued a regular visitor’s visa by the United States Embassy in London in June 2008, the administration official said. … He was granted a two-year visa, which is still valid, the official said.[2]

    In short, he had as much a right to be here as every other tourist with a passport and a visa, and as much a right to our legal system as any tourist. So your “illegal occupant” argument is a red herring.

    And your arguments about CIA agents and “innocent civilians” ignores the fact that our own country has un-uniformed combatants in other countries. I really think you’re missing the point of my argument, but I’m forced to conclude that you’re okay with CIA members being tortured or denied due process in carrying out their missions, at least if you are to be consistent.

    Also, you might as well also argue that “our criminal justice system is not equipped to try [mobsters], nor are you a ‘peer’ of such a [mobster].” And just like that, we can begin cutting corners off the Constitution! Who else doesn’t it apply to? Only time will tell! Sorry, folks, [your group here] can’t be afforded due process because someone decided the “federal judiciary is ill equipped” to handle your case. Off to the gulag! Long live freedom!

    [1] nytimes.com/reuters/2009/12/30/world/international-security-airline.html
    [2] nytimes.com/2009/12/27/us/27terror.html

  • Peter Leavitt

    Todd, you’ve set up a straw-man in declaring those who want Abdulmutallab interrogated and tried by a military commission as not caring for the Constitution. There is ample constitutional precedent for trial by military commission, including FDR’s decision to so try a group of Germans in WWII who were landed in civilian clothing on Long Island, caught, interrogated, tried, and executed within a couple of months.

    While Obama has the right to try Abtulmutallab in the criminal justice system, he would have been wiser to do so by a legally constituted military commission in Gitmo. The man is clearly an illegal enemy combatant who at present has been lawyered up and is not cooperating with FBI interrogators.

  • Peter Leavitt

    Todd, you’ve set up a straw-man in declaring those who want Abdulmutallab interrogated and tried by a military commission as not caring for the Constitution. There is ample constitutional precedent for trial by military commission, including FDR’s decision to so try a group of Germans in WWII who were landed in civilian clothing on Long Island, caught, interrogated, tried, and executed within a couple of months.

    While Obama has the right to try Abtulmutallab in the criminal justice system, he would have been wiser to do so by a legally constituted military commission in Gitmo. The man is clearly an illegal enemy combatant who at present has been lawyered up and is not cooperating with FBI interrogators.

  • Jonathan

    @22 “The man is clearly an illegal enemy combatant who at present has been lawyered up and is not cooperating with FBI interrogators.”

    There you go again with “illegal enemy combatant.” The correct term is “illegal combatant,” and yes, it makes a difference.

    Illegal combatants are treated as criminal defendants–full stop. The terms are completely interchangeable; when you say “illegal combatant,” you are saying, “criminal defendant.” It is only a matter of choice of venue and its attendant procedural rights.

    The military *acting under martial law* CAN take and prosecute an illegal combatant/criminal, but it doesn’t have to.

    If you want to have the military take absolute, sole responsibility for the act, then he should be an “regular enemy combatant,” i.e., have POW status. If we do not have a “war” or “martial law” how can any of these be characterized much less dealt with according to the law of war?

    Your example of the captured German regular military members caught wearing civilian clothes while operating on US shores were treated as a war crime–as an act of perfidy and/or espionage. But their status was POW.

    You can fault POTUS for his forum choice all you want, and I don’t necessarily disagree. But at least you have to admit he is being fundamentally consistent in that if you have no war, you are dealing with criminal defendants who belong in civilian criminal justice system.

    The focus of your consternation ought not be on the characterization of these people according to the law of war, but on the policy decision to say we have no war, and especially not a war against a nongeographic nation state of radical Islam.

  • Jonathan

    @22 “The man is clearly an illegal enemy combatant who at present has been lawyered up and is not cooperating with FBI interrogators.”

    There you go again with “illegal enemy combatant.” The correct term is “illegal combatant,” and yes, it makes a difference.

    Illegal combatants are treated as criminal defendants–full stop. The terms are completely interchangeable; when you say “illegal combatant,” you are saying, “criminal defendant.” It is only a matter of choice of venue and its attendant procedural rights.

    The military *acting under martial law* CAN take and prosecute an illegal combatant/criminal, but it doesn’t have to.

    If you want to have the military take absolute, sole responsibility for the act, then he should be an “regular enemy combatant,” i.e., have POW status. If we do not have a “war” or “martial law” how can any of these be characterized much less dealt with according to the law of war?

    Your example of the captured German regular military members caught wearing civilian clothes while operating on US shores were treated as a war crime–as an act of perfidy and/or espionage. But their status was POW.

    You can fault POTUS for his forum choice all you want, and I don’t necessarily disagree. But at least you have to admit he is being fundamentally consistent in that if you have no war, you are dealing with criminal defendants who belong in civilian criminal justice system.

    The focus of your consternation ought not be on the characterization of these people according to the law of war, but on the policy decision to say we have no war, and especially not a war against a nongeographic nation state of radical Islam.

  • Peter Leavitt

    You’re wrong Jonathan. Enemy combatants under the Geneva convention are treated as POWs with certain privileges. The German illegal enemy combatants were not regarded as POWs; that’s why they were tried by a military commission, convicted, and executed, something that should never be done to a POW.

    I prefer to use the term “illegal enemy combatant,” though they may also be termed an “unlawful combatant” or “unprivileged combatant/belligerent.” Abdulmutallab clearly fits any one of these terms.

  • Peter Leavitt

    You’re wrong Jonathan. Enemy combatants under the Geneva convention are treated as POWs with certain privileges. The German illegal enemy combatants were not regarded as POWs; that’s why they were tried by a military commission, convicted, and executed, something that should never be done to a POW.

    I prefer to use the term “illegal enemy combatant,” though they may also be termed an “unlawful combatant” or “unprivileged combatant/belligerent.” Abdulmutallab clearly fits any one of these terms.

  • DonS

    tODD @ 21:

    I didn’t get a chance to click back through your link, but I will take your word for it that the initial reports were wrong and that our panty bomber had a passport in his possession, as well as a U.S. visa. However, as I’m sure you recognize, this does not mean he had a legal right to be in the U.S. A visa must be applied for, and in that application, which requires a verified signature and acknowledgement that all statements made in it are true and correct, you must give a reason for visiting. I’m sure he didn’t state as his reason “to blow up a civilian airliner”. Thus, there is little doubt that he entered the country illegally. I think we can agree on this basic point.

    We can also agree that the government legally has the option of whether to prosecute this bomber in federal civilian court or in a military tribunal. The U.S. Supreme Court has established this point, as you know. My assertion remains that it makes no sense to prosecute a murderous terrorist, whom al-Qaeda, a sworn enemy of the U.S., claims as one of its own, in federal civilian court, for the reasons stated above in my earlier posts. Given al-Qaeda’s claim that the panty bomber’s act was orchestrated by them, the prudent and reasonable thing to do is to regard him as an illegal combatant and to detain and interrogate him accordingly. Potentially, the safety of the U.S. traveling public is at stake from these acts of war.

    Even U.S. citizens are not necessarily entitled to be tried in federal civilian court. Members of the military, for example, are subject to the military justice system. While current military members voluntarily give up their rights to civilian court and its specific Constitutional protections, in the days of the draft that right was given up involuntarily. You still have Constitutional protections under the military justice system, but they can look quite different than those established in the civilian system.

    I’m not sure what point you are making about our CIA operatives, quite frankly. I trust that you are not suggesting that our CIA operatives act in a manner similar to al-Qaeda terrorists. I don’t see that the situation is parallel at all.

    You’re the one arguing that, somehow, mobsters should not be tried in civilian court, not me. U.S. citizens are entitled to due process and the protections of our Constitution, even when they commit crimes. Now, if those crimes are treasonous in some way, or pose an unusual ongoing threat against the safety of our country or its citizens, then the President certainly has the perogative to treat that mobster appropriately, in a manner that protects the public. I trust that you at least agree with THAT principle.

  • DonS

    tODD @ 21:

    I didn’t get a chance to click back through your link, but I will take your word for it that the initial reports were wrong and that our panty bomber had a passport in his possession, as well as a U.S. visa. However, as I’m sure you recognize, this does not mean he had a legal right to be in the U.S. A visa must be applied for, and in that application, which requires a verified signature and acknowledgement that all statements made in it are true and correct, you must give a reason for visiting. I’m sure he didn’t state as his reason “to blow up a civilian airliner”. Thus, there is little doubt that he entered the country illegally. I think we can agree on this basic point.

    We can also agree that the government legally has the option of whether to prosecute this bomber in federal civilian court or in a military tribunal. The U.S. Supreme Court has established this point, as you know. My assertion remains that it makes no sense to prosecute a murderous terrorist, whom al-Qaeda, a sworn enemy of the U.S., claims as one of its own, in federal civilian court, for the reasons stated above in my earlier posts. Given al-Qaeda’s claim that the panty bomber’s act was orchestrated by them, the prudent and reasonable thing to do is to regard him as an illegal combatant and to detain and interrogate him accordingly. Potentially, the safety of the U.S. traveling public is at stake from these acts of war.

    Even U.S. citizens are not necessarily entitled to be tried in federal civilian court. Members of the military, for example, are subject to the military justice system. While current military members voluntarily give up their rights to civilian court and its specific Constitutional protections, in the days of the draft that right was given up involuntarily. You still have Constitutional protections under the military justice system, but they can look quite different than those established in the civilian system.

    I’m not sure what point you are making about our CIA operatives, quite frankly. I trust that you are not suggesting that our CIA operatives act in a manner similar to al-Qaeda terrorists. I don’t see that the situation is parallel at all.

    You’re the one arguing that, somehow, mobsters should not be tried in civilian court, not me. U.S. citizens are entitled to due process and the protections of our Constitution, even when they commit crimes. Now, if those crimes are treasonous in some way, or pose an unusual ongoing threat against the safety of our country or its citizens, then the President certainly has the perogative to treat that mobster appropriately, in a manner that protects the public. I trust that you at least agree with THAT principle.

  • Jonathan

    The underwear bomber was not captured on some foreign battlefield–he landed at a civilian airport in Michigan and was arrested by civilian authorities. What’s more, POTUS has decided we don’t have a war on terror–at most we have “overseas contingency operations” to restore peace and stability in Iraq and Afghanistan. Therefore, the decision to avoid characterizing him with any Geneva Convention rights either as an “unlawful combatant” or “combatant” and try him as a common criminal in civilian justice system makes sense. Why would you ask the military to deal with something that has been declared not martial concern? As far as the administration is concerned, he is not our “enemy,” rather, he’s just another misguided (alleged) criminal. So your beef can’t be about how to label him and make the military handle it; instead, it’s really about the fact that we are not fighting a war.

  • Jonathan

    The underwear bomber was not captured on some foreign battlefield–he landed at a civilian airport in Michigan and was arrested by civilian authorities. What’s more, POTUS has decided we don’t have a war on terror–at most we have “overseas contingency operations” to restore peace and stability in Iraq and Afghanistan. Therefore, the decision to avoid characterizing him with any Geneva Convention rights either as an “unlawful combatant” or “combatant” and try him as a common criminal in civilian justice system makes sense. Why would you ask the military to deal with something that has been declared not martial concern? As far as the administration is concerned, he is not our “enemy,” rather, he’s just another misguided (alleged) criminal. So your beef can’t be about how to label him and make the military handle it; instead, it’s really about the fact that we are not fighting a war.

  • http://www.toddstadler.com/ tODD

    Don (@25), you said, “there is little doubt that he entered the country illegally. I think we can agree on this basic point.” Hardly. This is specious logic. Consider this: any person who has a legal visa to be in the U.S., and is law-abiding for nearly the entire term of his visa, but who commits a crime on the last day of his visa, would be condemned by you as having “entered the country illegally”. Because, you know, he didn’t write on his visa form, “I plan to commit a crime on the last day of my visa.” Please. In both cases (hypothetical and not), the person entered the country legally. And in both cases, he committed a crime after entering the country legally.

    “You’re the one arguing that, somehow, mobsters should not be tried in civilian court, not me.” Um, no. I’m arguing they should. And can. And have. And yet, all the reasons you cite for why our justice system cannot handle terrorist prosecutions apply in mobster cases as well. You were the one arguing for the former, and I pointed out the fallacy by comparing it to the latter. You admit that you are not arguing that mobsters shouldn’t be tried in civilian court, though. Frankly, I’m not sure you get my point. Or several of them, really.

  • http://www.toddstadler.com/ tODD

    Don (@25), you said, “there is little doubt that he entered the country illegally. I think we can agree on this basic point.” Hardly. This is specious logic. Consider this: any person who has a legal visa to be in the U.S., and is law-abiding for nearly the entire term of his visa, but who commits a crime on the last day of his visa, would be condemned by you as having “entered the country illegally”. Because, you know, he didn’t write on his visa form, “I plan to commit a crime on the last day of my visa.” Please. In both cases (hypothetical and not), the person entered the country legally. And in both cases, he committed a crime after entering the country legally.

    “You’re the one arguing that, somehow, mobsters should not be tried in civilian court, not me.” Um, no. I’m arguing they should. And can. And have. And yet, all the reasons you cite for why our justice system cannot handle terrorist prosecutions apply in mobster cases as well. You were the one arguing for the former, and I pointed out the fallacy by comparing it to the latter. You admit that you are not arguing that mobsters shouldn’t be tried in civilian court, though. Frankly, I’m not sure you get my point. Or several of them, really.

  • DonS

    tODD @ 27: Your comment makes no sense. Of course, if you state in your visa application, under penalty of perjury, that you are entering the U.S. for the purpose of tourism, when actually you are entering for the purpose of terrorism, you are, in fact, entering the U.S. illegally. You have lied on your application, and obtained your visa under false pretenses. Surely, you can understand this obvious point. How is this “specious logic”, even in your liberal world? Your hypothetical is nonsense. If the person in your hypo entered the country under a visa for the purpose of tourism, and, in fact, toured the country, but burgled a 7-11 on his last day in the country, he probably is legally in the country. Similarly, if I enter Mexico for the purpose of tourism, get drunk, and get into a car accident, I am still legally in the country, though I am in big trouble. That is quite different from the guy who didn’t even land before attempting to blow up the plane, and never had any intention of being a tourist.

    But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court. I mentioned examples in my last post. And it is abundantly clear that the panty bomber is not so entitled.

    You are correct. I don’t get many of your points. And never have. :-)

  • DonS

    tODD @ 27: Your comment makes no sense. Of course, if you state in your visa application, under penalty of perjury, that you are entering the U.S. for the purpose of tourism, when actually you are entering for the purpose of terrorism, you are, in fact, entering the U.S. illegally. You have lied on your application, and obtained your visa under false pretenses. Surely, you can understand this obvious point. How is this “specious logic”, even in your liberal world? Your hypothetical is nonsense. If the person in your hypo entered the country under a visa for the purpose of tourism, and, in fact, toured the country, but burgled a 7-11 on his last day in the country, he probably is legally in the country. Similarly, if I enter Mexico for the purpose of tourism, get drunk, and get into a car accident, I am still legally in the country, though I am in big trouble. That is quite different from the guy who didn’t even land before attempting to blow up the plane, and never had any intention of being a tourist.

    But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court. I mentioned examples in my last post. And it is abundantly clear that the panty bomber is not so entitled.

    You are correct. I don’t get many of your points. And never have. :-)

  • Jonathan

    “But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court.”

    Right, okay, military members like Major Hasan may give up the right to be tried in civilian court assuming the military puts the habeas grabbus on them first.

    But there’s nothing says the military gets first dibs on civilian crimes in peacetime, and that’s really the main point which POTUS has decided. We’re not at war, not in combat with these misguided extremists; theirs is not a war (jihad) we recognize. So they are common criminals, and there is no reason to bother the military with handling them. It’s not a martial or law of law matter, so the administartion has decided.

    That’s really where your disagreement should lie, not in his Geneva status.

  • Jonathan

    “But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court.”

    Right, okay, military members like Major Hasan may give up the right to be tried in civilian court assuming the military puts the habeas grabbus on them first.

    But there’s nothing says the military gets first dibs on civilian crimes in peacetime, and that’s really the main point which POTUS has decided. We’re not at war, not in combat with these misguided extremists; theirs is not a war (jihad) we recognize. So they are common criminals, and there is no reason to bother the military with handling them. It’s not a martial or law of law matter, so the administartion has decided.

    That’s really where your disagreement should lie, not in his Geneva status.

  • http://www.toddstadler.com/ tODD

    Don (@28), let me try another hypothetical on you. Assume a person gets a visa to the U.S. for educational purposes. And he comes here and actually attends a school — he did not lie. And then, on the last day he is here, he commits a terrorist act. By your logic, he would have lied on his visa, and his entire trip, he would have been here illegally, thereby meaning that he was not subject to any Constitutional rights. That is your argument as I understand it.

    “But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court.” Don, since you know that there is not a draft right now, are you insisting that there are situations in which you and I are not entitled to due process?

    And why are you ignoring Jonathan’s points?

  • http://www.toddstadler.com/ tODD

    Don (@28), let me try another hypothetical on you. Assume a person gets a visa to the U.S. for educational purposes. And he comes here and actually attends a school — he did not lie. And then, on the last day he is here, he commits a terrorist act. By your logic, he would have lied on his visa, and his entire trip, he would have been here illegally, thereby meaning that he was not subject to any Constitutional rights. That is your argument as I understand it.

    “But, again, the main point is that no one, even a U.S. citizen, is absolutely entitled, under all circumstances, to be tried in civilian court.” Don, since you know that there is not a draft right now, are you insisting that there are situations in which you and I are not entitled to due process?

    And why are you ignoring Jonathan’s points?

  • DonS

    Jonathan, are you talking to me? Up until now I thought your discussion was with Peter. Sorry.

    It’s not up to the military to get “dibs” on anyone. It’s up to the administration. I agree with you on that. What I am arguing is that, contrary to the view of many on the left, NO ONE is absolutely entitled in all circumstances to be tried in civilian court, and this is particularly true of someone who has not legal status in our country. And it is PARTICULARLY true of someone who has committed an act of terrorism against our innocent civilian population for which al-Qaeda claims sponsorship. The President has a duty to the people to treat the perp in a manner which will best ensure our national security. No ifs, ands, or buts. I don’t see how you can label an al-Qaeda terrorist as a “common criminal”. That’s crazy.

    Now, I understand that YOU are not the one labeling him such, and I think you largely agree with me that this episode is an administration failure.

  • DonS

    Jonathan, are you talking to me? Up until now I thought your discussion was with Peter. Sorry.

    It’s not up to the military to get “dibs” on anyone. It’s up to the administration. I agree with you on that. What I am arguing is that, contrary to the view of many on the left, NO ONE is absolutely entitled in all circumstances to be tried in civilian court, and this is particularly true of someone who has not legal status in our country. And it is PARTICULARLY true of someone who has committed an act of terrorism against our innocent civilian population for which al-Qaeda claims sponsorship. The President has a duty to the people to treat the perp in a manner which will best ensure our national security. No ifs, ands, or buts. I don’t see how you can label an al-Qaeda terrorist as a “common criminal”. That’s crazy.

    Now, I understand that YOU are not the one labeling him such, and I think you largely agree with me that this episode is an administration failure.

  • http://www.toddstadler.com/ tODD

    Ah, well, I suppose Don’s first paragraph (@31) explains my last question (@30).

    As to “al-Qaeda claims”, I think you’re being a bit naive. Al-Qaeda has motive to claim responsibility for any successful (or, apparently, partially successful) terrorist attack, even if they are not behind it. Surely you’ve noticed the pattern in terrorist attacks in the Middle East, in which multiple groups claim they are responsible. And why in the world are you suggesting that our legal system should take the claims of al-Qaeda into consideration when determining someone’s rights?!

    “The President has a duty to the people to treat the perp in a manner which will best ensure our national security.” Ah, see, I was under the impression that we had certain rights, and these weren’t subject to the whim of the Executive. What a novel interpretation — and, again, complete disdain for the Constitution — you have.

    “I don’t see how you can label an al-Qaeda terrorist as a ‘common criminal’. That’s crazy.” Indeed. Why, it’s practically as crazy as having tried Timothy McVeigh as a “common criminal”, with all the rights that entails! Why didn’t we waterboard him?

  • http://www.toddstadler.com/ tODD

    Ah, well, I suppose Don’s first paragraph (@31) explains my last question (@30).

    As to “al-Qaeda claims”, I think you’re being a bit naive. Al-Qaeda has motive to claim responsibility for any successful (or, apparently, partially successful) terrorist attack, even if they are not behind it. Surely you’ve noticed the pattern in terrorist attacks in the Middle East, in which multiple groups claim they are responsible. And why in the world are you suggesting that our legal system should take the claims of al-Qaeda into consideration when determining someone’s rights?!

    “The President has a duty to the people to treat the perp in a manner which will best ensure our national security.” Ah, see, I was under the impression that we had certain rights, and these weren’t subject to the whim of the Executive. What a novel interpretation — and, again, complete disdain for the Constitution — you have.

    “I don’t see how you can label an al-Qaeda terrorist as a ‘common criminal’. That’s crazy.” Indeed. Why, it’s practically as crazy as having tried Timothy McVeigh as a “common criminal”, with all the rights that entails! Why didn’t we waterboard him?

  • DonS

    tODD @ 30: As to your hypo, it depends. Was his real purpose to commit the act of terrorism and the education a fraud? Or did he get caught up in the moment, get in with the wrong crowd in one of those left wing universities, and commit the act of terrorism spontaneously?

    You realize all of this talk about being legally vs. illegally in the country is just my dream world that you have gotten caught up in, don’t you? The courts have, to date, held otherwise, finding that anyone in the country regardless of their legal status is entitled to at least some rights granted to citizens under the Constitution. Unfortunately, this even applies to the terrorists currently in Gitmo. But I am hoping someday for courts that are a little more discerning and circumspect.

    What is “due process”, by the way? Those in the military are entitled to “due process”, just not in a civilian court. I think there are things you or I could do which would potentially place us outside of the jurisdiction of civilian court as well. One of them would be to conspire with al-Qaeda to blow up a plane. But, as citizens, it’s a much higher threshold for the government to meet that it is for unlawful combatants.

  • DonS

    tODD @ 30: As to your hypo, it depends. Was his real purpose to commit the act of terrorism and the education a fraud? Or did he get caught up in the moment, get in with the wrong crowd in one of those left wing universities, and commit the act of terrorism spontaneously?

    You realize all of this talk about being legally vs. illegally in the country is just my dream world that you have gotten caught up in, don’t you? The courts have, to date, held otherwise, finding that anyone in the country regardless of their legal status is entitled to at least some rights granted to citizens under the Constitution. Unfortunately, this even applies to the terrorists currently in Gitmo. But I am hoping someday for courts that are a little more discerning and circumspect.

    What is “due process”, by the way? Those in the military are entitled to “due process”, just not in a civilian court. I think there are things you or I could do which would potentially place us outside of the jurisdiction of civilian court as well. One of them would be to conspire with al-Qaeda to blow up a plane. But, as citizens, it’s a much higher threshold for the government to meet that it is for unlawful combatants.

  • DonS

    tODD @ 32: We have a duty to investigate al-Qaeda claims before simply allowing an unlawful combatant to “lawyer up”. If it is found that the claims are not meritorious, it is within the President’s perogative to return the perp to the civilian court system, if he wants to, as he has done with some of the Gitmo prisoners, though it is probably unadvised at that juncture.

    The rest of your post seems to be re-hash. I don’t agree with your view of what constitutes a due respect of “rights”, particularly when the known terrorist is in our country illegally. He can get his “due process” at Gitmo. Timothy McVeigh was a U.S. citizen, for better or worse, and acted alone. There was no reasonable belief that there was further risk to the public once he was in custody, so that is quite a different situation.

  • DonS

    tODD @ 32: We have a duty to investigate al-Qaeda claims before simply allowing an unlawful combatant to “lawyer up”. If it is found that the claims are not meritorious, it is within the President’s perogative to return the perp to the civilian court system, if he wants to, as he has done with some of the Gitmo prisoners, though it is probably unadvised at that juncture.

    The rest of your post seems to be re-hash. I don’t agree with your view of what constitutes a due respect of “rights”, particularly when the known terrorist is in our country illegally. He can get his “due process” at Gitmo. Timothy McVeigh was a U.S. citizen, for better or worse, and acted alone. There was no reasonable belief that there was further risk to the public once he was in custody, so that is quite a different situation.

  • Peter Leavitt

    I see, Jonathan, the POTUS, has declared that we are involved not in a war but in an “overseas contingency operations,” ergo, Abtulmutallab should be charged as a criminal not as an unlawful enemy combatant.

    The fact is that Abdulmutallab was trained in Yemen by al Quaeda of the Arabian peninsula, provided with three ounces of highly explosive PETN and a detonator, and ordered to blow up Delta Flight 253. He clearly is an al Quaeda warrior involved in a war against terror that the U.S. has been actively fighting since 9/11 2001. In that he was dressed as a civilian and intended to slaughter 288 passengers he ought to be sent to Gitmo, rigorously interrogated, and then tried by a military commission, according to the Constitution.

    Those who euphemistically regard this war against Islamic terrorists as an “overseas contingency operation” need to wake up and get real.

  • Peter Leavitt

    I see, Jonathan, the POTUS, has declared that we are involved not in a war but in an “overseas contingency operations,” ergo, Abtulmutallab should be charged as a criminal not as an unlawful enemy combatant.

    The fact is that Abdulmutallab was trained in Yemen by al Quaeda of the Arabian peninsula, provided with three ounces of highly explosive PETN and a detonator, and ordered to blow up Delta Flight 253. He clearly is an al Quaeda warrior involved in a war against terror that the U.S. has been actively fighting since 9/11 2001. In that he was dressed as a civilian and intended to slaughter 288 passengers he ought to be sent to Gitmo, rigorously interrogated, and then tried by a military commission, according to the Constitution.

    Those who euphemistically regard this war against Islamic terrorists as an “overseas contingency operation” need to wake up and get real.

  • http://www.toddstadler.com/ tODD

    Don (@33), so, continuing with my hypothetical, whether a person is in the country legally or not depends on knowing his “real purpose”? So at what point can you say that a foreigner on a visa (who attends a school like his visa stipulates) is there illegally? When you read his mind? Not that any of this matters, since thankfully, some people in charge right now believe in rights and the Constitution and all that.

    “All of this talk about being legally vs. illegally in the country is just my dream world.” Ah, and to think that conservatives once dreamed about giving freedom to people, not arbitrarily denying them their rights, even their fellow citizens.

    “What is ‘due process’, by the way?” You know, for what it’s worth, it concerns me when a “conservative” lawyer asks me this. I’d like to think you knew the answer pretty well. And please, stop derailing things to talk about people in the military. We’re not talking about them. We’re talking about regular citizens, of some foreign country or our own.

    “I think there are things you or I could do which would potentially place us outside of the jurisdiction of civilian court as well. One of them would be to conspire with al-Qaeda to blow up a plane.” I see. So, in your opinion, if a U.S. citizen destroys a building on U.S. soil in claimed revenge for what the U.S. government did to his fellow Muslims, then he’s no longer under Constitutional law. But if, say, a U.S. citizen destroys a building on U.S. soil in claimed revenge for what the U.S. government did to his fellow anti-government people, then it’s okay for him to have his full rights. Gotcha. And the President gets to decide who gets rights and who doesn’t, based on which ideologies he declares us to be at war with. Right.

  • http://www.toddstadler.com/ tODD

    Don (@33), so, continuing with my hypothetical, whether a person is in the country legally or not depends on knowing his “real purpose”? So at what point can you say that a foreigner on a visa (who attends a school like his visa stipulates) is there illegally? When you read his mind? Not that any of this matters, since thankfully, some people in charge right now believe in rights and the Constitution and all that.

    “All of this talk about being legally vs. illegally in the country is just my dream world.” Ah, and to think that conservatives once dreamed about giving freedom to people, not arbitrarily denying them their rights, even their fellow citizens.

    “What is ‘due process’, by the way?” You know, for what it’s worth, it concerns me when a “conservative” lawyer asks me this. I’d like to think you knew the answer pretty well. And please, stop derailing things to talk about people in the military. We’re not talking about them. We’re talking about regular citizens, of some foreign country or our own.

    “I think there are things you or I could do which would potentially place us outside of the jurisdiction of civilian court as well. One of them would be to conspire with al-Qaeda to blow up a plane.” I see. So, in your opinion, if a U.S. citizen destroys a building on U.S. soil in claimed revenge for what the U.S. government did to his fellow Muslims, then he’s no longer under Constitutional law. But if, say, a U.S. citizen destroys a building on U.S. soil in claimed revenge for what the U.S. government did to his fellow anti-government people, then it’s okay for him to have his full rights. Gotcha. And the President gets to decide who gets rights and who doesn’t, based on which ideologies he declares us to be at war with. Right.

  • DonS

    tODD @ 36:

    “And please, stop derailing things to talk about people in the military. We’re not talking about them. We’re talking about regular citizens, of some foreign country or our own.”

    Wow! Let me get this straight. In your mind, the panty bomber is a regular citizen, while members of our own military are not. OK, then. I think I see the problem here.

  • DonS

    tODD @ 36:

    “And please, stop derailing things to talk about people in the military. We’re not talking about them. We’re talking about regular citizens, of some foreign country or our own.”

    Wow! Let me get this straight. In your mind, the panty bomber is a regular citizen, while members of our own military are not. OK, then. I think I see the problem here.

  • http://www.toddstadler.com/ tODD

    Peter (@35) references “a war against terror that the U.S. has been actively fighting since 9/11 2001″. Um, that’s a novel dating. I guess it’s traditional for “conservatives” to claim that we weren’t fighting al Qaeda before then, but that is, of course, ridiculous.

    I also love the complaint that Abdulmutallab “was dressed as a civilian”. Um, and what should he have been wearing? The official al Qaeda army uniform? And what does that look like? Anybody have a link? Should he also have been carrying an al Qaeda passport? And when captured, he could give his al Qaeda rank and serial number? And maybe while he was in jail, he could hum the al Qaeda national anthem and wonder how his fellow al Qaeda citizens were going to do in the 2010 Olympics.

  • http://www.toddstadler.com/ tODD

    Peter (@35) references “a war against terror that the U.S. has been actively fighting since 9/11 2001″. Um, that’s a novel dating. I guess it’s traditional for “conservatives” to claim that we weren’t fighting al Qaeda before then, but that is, of course, ridiculous.

    I also love the complaint that Abdulmutallab “was dressed as a civilian”. Um, and what should he have been wearing? The official al Qaeda army uniform? And what does that look like? Anybody have a link? Should he also have been carrying an al Qaeda passport? And when captured, he could give his al Qaeda rank and serial number? And maybe while he was in jail, he could hum the al Qaeda national anthem and wonder how his fellow al Qaeda citizens were going to do in the 2010 Olympics.

  • http://www.toddstadler.com/ tODD

    Don (@37), oh good grief. Are you serious? And you decried so-called “gotcha” tactics? Please. Let me spell it out for you:

    1) The “panty bomber” isn’t a citizen of the United States.

    2) Several of my examples and hypotheticals did refer to “regular” — that is to say, non-military — citizens, who are subject to regular — that is to say, non-military — due process as mentioned in the Constitution.

    3) The point in question is whether ordinary citizens (or, in this case, visitors who had a valid visa) can be deprived of any of their rights merely because of the type of crime they commit. You argue yes. I’m arguing no.

    4) But several times you’ve attempted (@25, 33) to talk about the military, noting that they might be tried in military court. Which is both obvious and beside the point.

  • http://www.toddstadler.com/ tODD

    Don (@37), oh good grief. Are you serious? And you decried so-called “gotcha” tactics? Please. Let me spell it out for you:

    1) The “panty bomber” isn’t a citizen of the United States.

    2) Several of my examples and hypotheticals did refer to “regular” — that is to say, non-military — citizens, who are subject to regular — that is to say, non-military — due process as mentioned in the Constitution.

    3) The point in question is whether ordinary citizens (or, in this case, visitors who had a valid visa) can be deprived of any of their rights merely because of the type of crime they commit. You argue yes. I’m arguing no.

    4) But several times you’ve attempted (@25, 33) to talk about the military, noting that they might be tried in military court. Which is both obvious and beside the point.

  • Peter Leavitt

    Todd, Pres. Bush on 20 September 2001 addressed Congress as follows:

    …Our war on terror begins with al-Qaeda (the terrorist network associated with bin Laden), but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated….

    America then launched a successful campaign against the Taliban government in Afghanistan and has since been active on a global war basis with funding from Congress. Prior to this, Pres. Clinton dealt with al Quaeda with a few desultory measures including a few cruise missiles, though one can’t really call this a serious war. Obama, as Jonathan remarks, may speak of “a global contingency operation,” though this is clearly a euphemism for war.

    Abtulmutallab, who before being lawyered up, admitted to having been directed by al Quaeda of the Saudi Peninsula with whom we are at war.

    The point of his civilian dress is important, as it establishes him as an unlawful enemy combatant, similar to the German saboteurs in WWII who landed on Long Island in civilian dress, were tried by a military court, and executed. Obama’s decision to try him in federal court rather than by a military commission is a serious mistake, however legal.

  • Peter Leavitt

    Todd, Pres. Bush on 20 September 2001 addressed Congress as follows:

    …Our war on terror begins with al-Qaeda (the terrorist network associated with bin Laden), but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated….

    America then launched a successful campaign against the Taliban government in Afghanistan and has since been active on a global war basis with funding from Congress. Prior to this, Pres. Clinton dealt with al Quaeda with a few desultory measures including a few cruise missiles, though one can’t really call this a serious war. Obama, as Jonathan remarks, may speak of “a global contingency operation,” though this is clearly a euphemism for war.

    Abtulmutallab, who before being lawyered up, admitted to having been directed by al Quaeda of the Saudi Peninsula with whom we are at war.

    The point of his civilian dress is important, as it establishes him as an unlawful enemy combatant, similar to the German saboteurs in WWII who landed on Long Island in civilian dress, were tried by a military court, and executed. Obama’s decision to try him in federal court rather than by a military commission is a serious mistake, however legal.

  • DonS

    tODD @ 39:

    1) Agreed

    2) Your statement is oversimplified. It’s not just military or non-military. There are many other factors that determine appropriate due process. Some of these factors are mundane, such as the availability of court resources. Others are more exceptional, such as national or local security concerns. For example, during a riot, martial law may be imposed, leading to the temporary curtailment of civil liberties or summary detention of rioters without the usual procedures or protections. As you know, our constitutional rights are always balanced against the rights, life, and libert of others. There are three levels of scrutiny governing situations when constitutional rights can be curtailed. The most relaxed is “rational basis”, meaning that the government must show only a rational basis for curtailing the right. Such things as curfews for minors can fall under this category, for example. There is also intermediate scrutinylevel, as well as a strict scrutiny level for fundamental rights, wherein the government must show a compelling interest. Compelling interests include public safety in times of extraordinary danger (like riots), or national security.

    3) Not exactly. First, I have already outlined why I believe the panty bomber in no way was carrying a valid visa. He was not tourist, and any visa he had was likely obtained through fraud. I do not believe he has any rights under our constitution which could be curtailed, as an illegal combatant. Secondly, I disagree that this was a “crime” in the conventional sense. It was an act of terror, or war, against the U.S.

    4) I cited the military solely be way of example.

  • DonS

    tODD @ 39:

    1) Agreed

    2) Your statement is oversimplified. It’s not just military or non-military. There are many other factors that determine appropriate due process. Some of these factors are mundane, such as the availability of court resources. Others are more exceptional, such as national or local security concerns. For example, during a riot, martial law may be imposed, leading to the temporary curtailment of civil liberties or summary detention of rioters without the usual procedures or protections. As you know, our constitutional rights are always balanced against the rights, life, and libert of others. There are three levels of scrutiny governing situations when constitutional rights can be curtailed. The most relaxed is “rational basis”, meaning that the government must show only a rational basis for curtailing the right. Such things as curfews for minors can fall under this category, for example. There is also intermediate scrutinylevel, as well as a strict scrutiny level for fundamental rights, wherein the government must show a compelling interest. Compelling interests include public safety in times of extraordinary danger (like riots), or national security.

    3) Not exactly. First, I have already outlined why I believe the panty bomber in no way was carrying a valid visa. He was not tourist, and any visa he had was likely obtained through fraud. I do not believe he has any rights under our constitution which could be curtailed, as an illegal combatant. Secondly, I disagree that this was a “crime” in the conventional sense. It was an act of terror, or war, against the U.S.

    4) I cited the military solely be way of example.

  • http://www.toddstadler.com/ tODD

    Peter (@40), I’m sure Bush’s rhetoric made you and other conservatives feel good, but it is, in short, silly. Bush’s “war on terror” is no more a real war than Johnson’s “war on poverty” or Nixon, et al.’s “war on drugs”. Just because a President uses the word “war” doesn’t make it a war — all the more so, since Presidents cannot Constitutionally declare war.

    Bush’s 2001 declaration makes clear how silly it is, anyhow, since it necessarily describes a war that will never end: “It will not end until every terrorist group of global reach has been found, stopped, and defeated.” Real wars have ways of coming to conclusions, because they take place between geographic states with defined leadership.

    “America then launched a successful campaign against the Taliban government in Afghanistan …” which was so successful that, nearly 10 years later, we’re still there, having been hindered by fear of nation-building and distracted by our foray into Iraq (or, at least, so says the Army’s own history of the war).

    “Prior to this, Pres. Clinton dealt with al Quaeda with a few desultory measures including a few cruise missiles, though one can’t really call this a serious war.” One can, however, argue that it was a more serious move against al-Qaeda than the whole of the Iraq War.

    “Abtulmutallab, who before being lawyered up, admitted to having been directed by al Quaeda of the Saudi Peninsula with whom we are at war.” Yes, well, Zacarias Moussaoui claimed that he and Richard Reid were co-conspirators in the September 11 attacks, intending to hijack a fifth aircraft and crash it into the White House. But not even our government’s investigators believed this claim. Terrorists sometimes lie. Some people credulously believe everything terrorists say.

    And I will once again ask, with respect to Abdulmutallab’s “civilian dress”: what the heck else was he supposed to be wearing?! Do you think there’s an official al Qaeda army uniform or something? How, exactly, would an al-Qaeda member go about being a lawful combatant, pray tell?

  • http://www.toddstadler.com/ tODD

    Peter (@40), I’m sure Bush’s rhetoric made you and other conservatives feel good, but it is, in short, silly. Bush’s “war on terror” is no more a real war than Johnson’s “war on poverty” or Nixon, et al.’s “war on drugs”. Just because a President uses the word “war” doesn’t make it a war — all the more so, since Presidents cannot Constitutionally declare war.

    Bush’s 2001 declaration makes clear how silly it is, anyhow, since it necessarily describes a war that will never end: “It will not end until every terrorist group of global reach has been found, stopped, and defeated.” Real wars have ways of coming to conclusions, because they take place between geographic states with defined leadership.

    “America then launched a successful campaign against the Taliban government in Afghanistan …” which was so successful that, nearly 10 years later, we’re still there, having been hindered by fear of nation-building and distracted by our foray into Iraq (or, at least, so says the Army’s own history of the war).

    “Prior to this, Pres. Clinton dealt with al Quaeda with a few desultory measures including a few cruise missiles, though one can’t really call this a serious war.” One can, however, argue that it was a more serious move against al-Qaeda than the whole of the Iraq War.

    “Abtulmutallab, who before being lawyered up, admitted to having been directed by al Quaeda of the Saudi Peninsula with whom we are at war.” Yes, well, Zacarias Moussaoui claimed that he and Richard Reid were co-conspirators in the September 11 attacks, intending to hijack a fifth aircraft and crash it into the White House. But not even our government’s investigators believed this claim. Terrorists sometimes lie. Some people credulously believe everything terrorists say.

    And I will once again ask, with respect to Abdulmutallab’s “civilian dress”: what the heck else was he supposed to be wearing?! Do you think there’s an official al Qaeda army uniform or something? How, exactly, would an al-Qaeda member go about being a lawful combatant, pray tell?

  • http://www.toddstadler.com/ tODD

    Don (@41), I really don’t understand what point you think you’re making in #2. As with your previous digressions about military justice, your statements are true, but meaninglessly so. Nobody here is talking about martial law, or any other special corner cases.

    And, frankly, I don’t know why you insist on saying his visa wasn’t valid. It was valid. If you want to say that his committing this act invalidated his visa, that’s fine, but I think it’s pretty ridiculous to claim he didn’t have a valid visa before he committed this act.

    “Secondly, I disagree that this was a ‘crime’ in the conventional sense. It was an act of terror, or war, against the U.S.” So was McVeigh’s act. It was an act of terror as well. And he made statements of “war” as well. Were we wrong to try him in a criminal court? You don’t seem to think so.

    I’d like to think Christians would think this through. Do you really want the President to have the power to abrogate all your rights merely by slapping the label “terrorism” on your act? Suppose there are several abortion clinic bombings in the future. Suppose there’s a government crackdown on groups opposing abortion. Suppose all clinic protesters are labeled as “terrorists”. Far-fetched? Perhaps. But would you want their rights to be forfeit because of some arbitrary judgment of the Executive? Or would you expect those U.S. citizens to get their Constitutional due process?

    But then, we can trust the government not to overstep its bounds, right, Don?

  • http://www.toddstadler.com/ tODD

    Don (@41), I really don’t understand what point you think you’re making in #2. As with your previous digressions about military justice, your statements are true, but meaninglessly so. Nobody here is talking about martial law, or any other special corner cases.

    And, frankly, I don’t know why you insist on saying his visa wasn’t valid. It was valid. If you want to say that his committing this act invalidated his visa, that’s fine, but I think it’s pretty ridiculous to claim he didn’t have a valid visa before he committed this act.

    “Secondly, I disagree that this was a ‘crime’ in the conventional sense. It was an act of terror, or war, against the U.S.” So was McVeigh’s act. It was an act of terror as well. And he made statements of “war” as well. Were we wrong to try him in a criminal court? You don’t seem to think so.

    I’d like to think Christians would think this through. Do you really want the President to have the power to abrogate all your rights merely by slapping the label “terrorism” on your act? Suppose there are several abortion clinic bombings in the future. Suppose there’s a government crackdown on groups opposing abortion. Suppose all clinic protesters are labeled as “terrorists”. Far-fetched? Perhaps. But would you want their rights to be forfeit because of some arbitrary judgment of the Executive? Or would you expect those U.S. citizens to get their Constitutional due process?

    But then, we can trust the government not to overstep its bounds, right, Don?

  • DonS

    tODD @ 43:

    Huh? Now you’ve really stumped me. A guy attempting to blow up an airplane using explosives he smuggled on board a civilian commercial airliner, whose act is claimed by our sworn enemy, al-Qaeda, is the ultimate “special corner” case! That’s my whole point. Thanks for making it for me. Why you can’t grasp this is beyond my comprehension.

    Your point about the visa is just as silly. If you apply for a driver’s license using a falsified birth certificate, and perjure yourself in the application by stating that you are of legal driving age when you are really not, guess what? You don’t really have a valid license. Why? Because you are not lawfully entitled to drive. Just because the DMV issued you a license based on your falsified application doesn’t mean the license is valid. It was issued by mistake, compounded by the perjurous false statement. Similarly, if you apply for a visa by making a falsified statement that you intend to tour the U.S., when, in reality, your intention is to blow up the airplane that takes you there, guess what? You don’t really have a valid visa. Why? Because you are not lawfully entitled to enter the country for the purpose of committing terror. You obtained the visa under false pretenses, by making a falsified statement. Just because the State Department issued the visa, in reliance on your false application, doesn’t mean that the visa is valid. It was issued by mistake, based on improper reliance on your false application.

    It is interesting that you seem incapable of seeing the distinction between a foreign terrorist, entering our country for the sole purpose of attacking it violently, and at least allegedly with the backing of our long-time enemy, that has already killed over 3,000 innocent civilians on our soil, and many, many more overseas, and a domestic terrorist like McVeigh, who committed a one-time violent act with one other wierdo who was also caught. The distinction, of course, is the future risk of additional violence, which justifies the disparate treatment of the perpetrators. But, if it makes you feel any better, I would not have any particular heartburn if McVeigh had been hauled off to Gitmo and interrogated. That is a judgment call, in the aftermath of a heinous violent act, to be made by the administration according to its intelligence as to the risk of further danger to the public.

    What does this whole issue have to do with Christians? I had sympathy for your position when you protested some of the Patriot Act provisions concerning the interception of cell phone calls and the like (though ultimately I disagreed with where you drew the line). I abhor situations where the government harasses or interferes, or snoops in the lives of innocent citizens. I hate the IRS and the absolute right it has to pry into every little detail of a citizen’s private life. It astonishes me that liberals like yourself, who claim to hate this kind of government intervention, so willingly accept the privacy intrusions caused by the income tax system. But, when someone commits a violent act of terrorism, and their identity is absolutely known, as in this case, throw the book at ‘em. And, if they are in league with others, still at large, who may commit additional acts, it is the government’s DUTY to protect the public by doing everything reasonably possible to interrogate or otherwise extract information necessary to prevent those additional acts.

  • DonS

    tODD @ 43:

    Huh? Now you’ve really stumped me. A guy attempting to blow up an airplane using explosives he smuggled on board a civilian commercial airliner, whose act is claimed by our sworn enemy, al-Qaeda, is the ultimate “special corner” case! That’s my whole point. Thanks for making it for me. Why you can’t grasp this is beyond my comprehension.

    Your point about the visa is just as silly. If you apply for a driver’s license using a falsified birth certificate, and perjure yourself in the application by stating that you are of legal driving age when you are really not, guess what? You don’t really have a valid license. Why? Because you are not lawfully entitled to drive. Just because the DMV issued you a license based on your falsified application doesn’t mean the license is valid. It was issued by mistake, compounded by the perjurous false statement. Similarly, if you apply for a visa by making a falsified statement that you intend to tour the U.S., when, in reality, your intention is to blow up the airplane that takes you there, guess what? You don’t really have a valid visa. Why? Because you are not lawfully entitled to enter the country for the purpose of committing terror. You obtained the visa under false pretenses, by making a falsified statement. Just because the State Department issued the visa, in reliance on your false application, doesn’t mean that the visa is valid. It was issued by mistake, based on improper reliance on your false application.

    It is interesting that you seem incapable of seeing the distinction between a foreign terrorist, entering our country for the sole purpose of attacking it violently, and at least allegedly with the backing of our long-time enemy, that has already killed over 3,000 innocent civilians on our soil, and many, many more overseas, and a domestic terrorist like McVeigh, who committed a one-time violent act with one other wierdo who was also caught. The distinction, of course, is the future risk of additional violence, which justifies the disparate treatment of the perpetrators. But, if it makes you feel any better, I would not have any particular heartburn if McVeigh had been hauled off to Gitmo and interrogated. That is a judgment call, in the aftermath of a heinous violent act, to be made by the administration according to its intelligence as to the risk of further danger to the public.

    What does this whole issue have to do with Christians? I had sympathy for your position when you protested some of the Patriot Act provisions concerning the interception of cell phone calls and the like (though ultimately I disagreed with where you drew the line). I abhor situations where the government harasses or interferes, or snoops in the lives of innocent citizens. I hate the IRS and the absolute right it has to pry into every little detail of a citizen’s private life. It astonishes me that liberals like yourself, who claim to hate this kind of government intervention, so willingly accept the privacy intrusions caused by the income tax system. But, when someone commits a violent act of terrorism, and their identity is absolutely known, as in this case, throw the book at ‘em. And, if they are in league with others, still at large, who may commit additional acts, it is the government’s DUTY to protect the public by doing everything reasonably possible to interrogate or otherwise extract information necessary to prevent those additional acts.

  • http://www.toddstadler.com/ tODD

    Several of my comments are now hung up in moderation.

  • http://www.toddstadler.com/ tODD

    Several of my comments are now hung up in moderation.

  • DonS

    Even the Washington Post editorial board is now coming around to the idea that terrorism is not always a matter for law enforcement, and that the Obama administration may well have blown the opportunity to learn important information regarding national security from the underpants bomber:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012204349.html

  • DonS

    Even the Washington Post editorial board is now coming around to the idea that terrorism is not always a matter for law enforcement, and that the Obama administration may well have blown the opportunity to learn important information regarding national security from the underpants bomber:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012204349.html


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