Patterico's Pontifications

11/17/2010

Former Gitmo Detainee Charged in Tanzania Embassy Bombing Is Acquitted of Most Charges in Federal Court

Filed under: General — Patterico @ 7:53 pm



Allahpundit has the basic skinny here. Basically, the guy was convicted of “conspiracy to destroy government buildings and property” but acquitted of over 200 counts of murder and conspiracy to commit murder.

Why? It’s not because the evidence wasn’t there. It’s because the admissible evidence wasn’t there — as determined by a civilian court applying civilian court rules:

This was the guy whom Obama and Holder lined up as their test case to prove that, yes indeed, we can convict Gitmo jihadis using good old-fashioned civilian court procedures. All was well until last month, when the district court judge barred the feds’ blockbuster witness from testifying, even though he was prepared to tell the jury that he sold Ghailani the explosives used to destroy the U.S. embassy in Tanzania in 1998. The feds had only learned of the witness’s identity during enhanced interrogation of Ghailani, and since the interrogation was deemed illegal, evidence derived from it was inadmissible. Without that testimony, the case collapsed. And now, a month later, we have a full-blown fiasco on our hands.

I went to find the judge’s decision online, to see just what was done to Ghailani, and the reasoning of the decision. I just finished reading it — or, at least, the parts I was allowed to read. Most of the decision is hidden behind huge swaths of redactions. (I tried to upload the judge’s decision for your benefit, but the file is far too large.)

You can’t see what was done to Ghailani. If the opinion discusses that question at all, it hides the answers behind redactions. There are hints in the unredacted portions that any problematic interrogation techniques did not amount to physical torture, but rather consisted of psychological techniques. For example, one quote describing the program says it was “designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist [government] efforts to obtain critical intelligence.”

But if we don’t know precisely what was done to Ghailani, we do know why — because the court tells us. You see, the CIA’s motive in interrogating Ghailani was not to get evidence to prosecute him. The court fully acknowledges this, and admits that the interrogation techniques were employed for critical reasons of national security.

The Government had argued that “questioning of the defendant by CIA officers . . . was not designed to elicit evidence that would be used in a subsequent trial but rather to obtain intelligence in connection with threats to national security.” And the Court agreed:

This was the case with respect to the RDI [Rendition, Detention, and Interrogation] Program in general, and nothing in the record contradicts the government’s assertion that national security motivated the CIA interrogations that elicited Ghailani’s statements about Abebe [the witness whose testimony was suppressed]. . . . The CIA had reason to believe that Ghailani was involved in bombing two African embassies. The identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security because the individuals and methods used might be applied against other targets in the future.

That sounds like that should end the issue, right?

Nope. The problem is that the CIA’s motive is just one factor in a multi-factor balancing test that was designed to address the behavior of police officers in their dealings with criminal suspects.

The judge probably issued a correct ruling, by the way, under the law he had to apply. The part that leaves me howling in outrage is not so much that he suppressed the evidence. It’s that Obama should have known he would — and that there was a perfectly legal alternative to federal court for this terrorist.

And that is the true outrage of what happened today. The Supreme Court of the United States has ruled that the military commissions established under Bush were constitutional. Those commissions were the obvious venue for trying Ghailani. But that wasn’t good enough for Barack Obama. He had to try this guy in a civilian court designed to handle completely different situations.

Oh, by the way — did you hear Obama’s reaction to today’s verdicts?

He’s pleased.

UPDATE: Some commenters claim that this testimony would have been barred in a military commission as well. I disagree, and explain why here.

135 Responses to “Former Gitmo Detainee Charged in Tanzania Embassy Bombing Is Acquitted of Most Charges in Federal Court”

  1. I’m not pleased, but thank you for explaining it so clearly.

    DRJ (d43dcd)

  2. “The judge probably issued a correct ruling, by the way, under the law he had to apply. The part that leaves me howling in outrage is not so much that he suppressed the evidence. It’s that Obama should have known he would … .”

    Should?

    Should? (Not did?)

    Do you really believe that?

    Christoph (8ec277)

  3. Actually, this comes from the fact that the Court chose to ignore principles and even facts on the ground, in every successsive detainee case from Hamdi to Boumedienne, in no small measure due to the
    Levick Group’s whitewash of the detainees background

    narciso (82637e)

  4. short version of this post: because the rule of law didn’t let us convict one murderer, we need to get rid of the rule of law.

    Ironically, a post authored by a prosecutor.

    The point here is simple: a murderer who runs around shouting Allahu akbar is–a murderer. To be treated after capture like any other murderer. It’s not a completely different situation. You have a trial, and I don’t mean a show trial. The trial didn’t give the result you wanted? Sorry, but that’s what the rule of law is for–the law rules the people, not the other way around.

    My own preference, btw, would be to change the law so that evidence obtained by “enhanced” techniques is admissible against anyone except the person being questioned, with the credibility of such evidence being left, like any other witness’s testimony, to the judgment of the jury.

    kishnevi (a6ffde)

  5. “Do you really believe that?”

    Christoph – I do. Don’t you? Are you that unfamiliar with our court system and rules of evidence that you could not see this coming?

    daleyrocks (940075)

  6. well, i also have to wonder how the hell you find him guilty of trying to blow up the building but not of killing the people in the building.

    Sigh.

    Aaron Worthing (b8e056)

  7. short version of this post: because the rule of law didn’t let us convict one murderer, we need to get rid of the rule of law.

    If you’re going to take potshots at me on account of my profession, learn to read first.

    The Supreme Court of the United States has ruled that the military commissions established under Bush were constitutional. Those commissions were the obvious venue for trying Ghailani.

    I am not arguing that we should chuck the rule of law, pal, and I don’t appreciate your snide little assertion to the contrary. I know far better than you do that the credibility of our system depends upon the fact that murderers can walk free.

    Number one, I don’t have to like it when it happens because of a technicality, as opposed to a lack of actual evidence.

    Number two, I still have to put up with it when there is no legal alternative. But the point I made in the post, which you deliberately ignored to take a cheap shot, was that there is a legal alternative.

    You owe me an apology.

    Patterico (c218bd)

  8. “To be treated after capture like any other murderer. It’s not a completely different situation.”

    kishnevi – It’s not a completely different situation except for the circumstances outlined in Aaron’s post, which make it different. It’s sort of like reading Miranda rights to POWs on the battlefield because we might decide to try them in civilian courts later. Stupid and unnecessary.

    daleyrocks (940075)

  9. In 8, I meant Patterico’s post.

    daleyrocks (940075)

  10. daleyrocks, surely you’re not missing my point: I put it in parenthesis so it couldn’t be ambiguous.

    Patterico is saying Barack Obama should have known. I’m saying, “Are you serious? Do you mean to suggest he didn’t know and was just ignorant?”

    I mean, Obama’s a good fellow so I guess that’s possible, but I’m not convinced he didn’t see this coming.

    Christoph (8ec277)

  11. “You can’t see what was done to Ghailani. If the opinion discusses that question at all, it hides the answers behind redactions.”

    They really shouldn’t do that.

    This headline is certainly better than “terrorist gets 20 to life”

    Haven’ we tried the other embassy bombings guys?

    imdw (df0dab)

  12. Of course the Obama Administration is pleased. The whole point of putting this in a left wing jury pool was to embarrass the George Bush.

    But no one cares about that anymore. They just want jobs.

    Arizona Bob (e8af2b)

  13. I think Obama and his followers have been willfully ignorant on these issues. Deep down, even the most liberal lawyers must have known this could happen, but they ignored it because it didn’t fit their worldview of what should happen. Non-lawyer liberals may not have known, and I suspect that Obama’s message that he is “pleased” with this verdict is directed at them.

    DRJ (d43dcd)

  14. I think you’re closer to verbalizing the transparent truth than Patterico is, DRJ, but I still think you’re being kind.

    Christoph (8ec277)

  15. How is it kind to say Obama and his DOJ lawyers intentionally closed their eyes to what might happen? Isn’t that worse than saying they were too stupid or naive to realize what might happen, but honestly believed what they were doing was right?

    DRJ (d43dcd)

  16. “I put it in parenthesis so it couldn’t be ambiguous.”

    Christoph – Is that why you added “Do you really believe that?” at the end since your meaning was so unambiguous?

    You have been known to boldly straddle both sides of an issue with your feet firmly planted in midair and then take offense when you claim someone misinterprets one of your multiple positions.

    daleyrocks (940075)

  17. I can just see an SNL skit about this trial, with “Obama” saying “I’m a constitutional law professor, and I’m pretty worried right now.”

    Kevin M (298030)

  18. How could this please anyone that is not an idiot? And just so I am clear, I am calling dimwit and Barcky idiots.

    JD (c8c1d2)

  19. So what’s the score so far? Military commissions have given us what kind of verdicts compared to this?

    imdw (3ac9fb)

  20. Should this man go on to kill again, we know exactly who to blame. Not the jury. Of course, that will be decades from now, so who cares? Obama will be showing us just how much worse than Jimmy Carter he really is, by then.

    We had a process for this, and Chicago style politics decided to play a game with human life by swapping that process for a different one.

    I’m sick and tired of everything being politicized. Politicians can still win elections without playing games like this.

    “Are you serious? Do you mean to suggest he didn’t know and was just ignorant?”

    I think Patterico’s actually suggesting the opposite. And yes, Obama certainly did know the implications.

    Dustin (b54cdc)

  21. How is it kind to say Obama and his DOJ lawyers intentionally closed their eyes to what might happen? Isn’t that worse than saying they were too stupid or naive to realize what might happen, but honestly believed what they were doing was right?

    There’s option 3: That they did so consciously knowing this was likely.

    Christoph (8ec277)

  22. All this trial showed is that conspiracy laws are pretty broad. These is some chance this gets overturned on appeal.

    I am NOT arguing that this would be a good thing for this defendant — he should have been subjected to military rules regarding combatants disguised as civilians. Trying these people in civilian court is wrong for the law and wrong for the crime.

    Kevin M (298030)

  23. I so wish that Bush had not balked and gone on with the military commissions in 2001 and 2002. I also wish that war had been declared on Sept 12, so that the situation was not confused with law enforcement. But if wishes were horses, Obama would still be a community gadfly.

    Kevin M (298030)

  24. They litigated every single comma, then they complained about the delay in getting conviction

    narciso (82637e)

  25. “also wish that war had been declared on Sept 12, so that the situation was not confused with law enforcement.”

    Would a declaration of war in 2001 affect this guy being convicted for something that happened in 1998?

    imdw (a863d5)

  26. Even I, the non-lawyer, asked what reason we had to expect the evidence to be admissable, and the consensus from here was there really wasn’t any reason, we should expect it to be a likely possibility.

    Add to that the reality that the prosecution probably has additional evidence that they do not want to use for national security reasons, and it’s a problem.

    I have the usual uncertainty when I see a post like kishnevi’s- do they really believe that, or do they know they’re being slanted in their arguing? The applicable rule of law is that this fellow could have been shot on capture as an unlawful combatant, correct?

    SNL has done some skits with teeth concerning the one. I think they are less partisan than most of the media- they’ll make fun of whoever is in power and the center of attention, apparently.

    MD in Philly (3d3f72)

  27. I am almost certain that it is not possible to more intentionally miss the point than the way iamadimwit just did.

    JD (c8c1d2)

  28. we did declare war after 9-11. What do you think the authorization to use force is?

    The constitution is not generally about labels. Its about substance. a declaration of war is permission given to the executive to use the powers of war. that permission has been given and the only difference between it and a declaration of war is it wasn’t called that. that does not, however, decide the constitutional issue.

    Aaron Worthing (b8e056)

  29. So nobody knows the score?

    imdw (41a598)

  30. Patterico: I’m not taking a pot shot at you. I find it ironic (to use a tactful word) that a prosecutor thinks the US court system is not capable of trying a mass murderer. And that’s all these poeple are. Religious motivations are not a reason to abandon the court system. And I don’t consider military tribunals anything approaching the civilian court system in terms of transparency and a dozen other things. Open trials in open courts with verdicts by a run of the mill jury is the heart of “rule of law”.

    kishnevi (a6ffde)

  31. The air of superiority, outright sanctimony, and unsupported arrogance demonstrated by this cowardly f@cker is remarkable. How many names have you posted under?

    JD (c8c1d2)

  32. I never agree with Aaron :) but I think he’s right on this – the AUMF was a declaration of war. The lack of a magical incantation using the word ‘war’ is irrelevant; the question is the substance.

    aphrael (5017ba)

  33. Kish it’s not about religious motivations, it’s about how these persons deliberate refuse to abide by the strictures of the Geneva Convention, a member of a terrorist group, doesn’t carry weapons openly, and/or has an indentifiable uniform

    narciso (82637e)

  34. I find it ironic (to use a tactful word) that a prosecutor thinks the US court system is not capable of trying a mass murderer.

    The practicality is that we must thwart future attacks, and the law has classically accommodated this. This man is engaged in a holy war.

    I think the best solution is to have a simple proceeding to establish if he’s a war criminal, and then an execution. The proper venue for this proceeding is the Military.

    Dustin (b54cdc)

  35. 20 to life dude. 20 to life. I just want to know if anyone knows how this compares.

    imdw (01e88f)

  36. Also, why hasn’t Nidal Hasan been convicted and executed yet? There are dozens of witnesses and the trial needs very little preparation. It shouldn’t take more than a few days.

    I understand dockets are crowded, but give me a break.

    Dustin (b54cdc)

  37. “And I don’t consider military tribunals anything approaching the civilian court system in terms of transparency and a dozen other things.”

    kishnevi – The civilian court system is does not handle matters of military justice for sound reasons, nor was it used in instances like Nuremburg. I prefer not to have national security secrets and methods of operation splashed around public courtrooms. Your mileage obviously differs.

    daleyrocks (940075)

  38. 20 to life dude. 20 to life. I just want to know if anyone knows how this compares.

    Comment by imdw —

    200 dead people, dude, 200 dead people.

    In Texas, we would not have sentenced him to 20 years confinement.

    Dustin (b54cdc)

  39. “I understand dockets are crowded, but give me a break.”

    Dustin – CAIR is probably complaining. They have the administration’s ear.

    daleyrocks (940075)

  40. I have the usual uncertainty when I see a post like kishnevi’s- do they really believe that, or do they know they’re being slanted in their arguing? The applicable rule of law is that this fellow could have been shot on capture as an unlawful combatant, correct?

    No, people like me realize that this struggle with the jihadis is not what you think of it. You think of it as merely trying to expunge from the world a group of really nasty people. People like me understand that this is really a struggle to vindicate American ideals–of which rule of law is a very important one. And replacing civilian court trials with military tribunals that would inevitably be seen as kangaroo courts operating show trials is the reverse of vindicating the rule of law. It’s the equivalent of burning the village to save it.

    Also, if you read my post, you will notice that I think the rule about not admitting torture/enhanced questioning as evidence should be changed. I think the testimony the judge barred should have been heard.

    BTW, if I remember correctly, Ghailani was not captured in a combat zone, so shooting him as an unlawful combatant on the spot would not have been an option. (Of course, I may be remembering incorrectly :) )

    kishnevi (a6ffde)

  41. “In Texas, we would not have sentenced him to 20 years confinement.”

    Texas would execute the wrong guy. But how about in a military commission?

    imdw (01e88f)

  42. You have been known to boldly straddle both sides of an issue

    No, like now, you’ve been known not to have a clue what I’m talking about. And the reason, at least in some cases, seems pretty simple. “both sides of an issue.”

    Sometimes an issue isn’t dipolar. You could, for example, say that a certain group of people may not be, on average, as good at doing a certain thing, but that some people in the group are good at it and that most people in the group have nothing against the thing. This is simply a description and is not taking both sides of anything.

    Since you know I was talking about the science discussion, I’ll use that as an example: I’m pro-science. I’m not anti-science. But that doesn’t mean I can’t recognize complexity.

    Back on topic, how have I taken two sides of an issue here? No, this is a reading comprehension problem on your part.

    You ask:

    Christoph – Is that why you added “Do you really believe that?” at the end since your meaning was so unambiguous?

    You also forgot to mention that I asked “Should?” twice, rhetorically. Clearly I was asking Patterico exactly what that question sounds like: When he used the word “should”, does he really believe Obama thought this work out differently or is Patterico straining credulity to say that and what he actually believes is Obama knew this was likely to happen (that many of the convictions wouldn’t happen because of the choice of trying in civilian court)?

    Patterico is on record as saying Obama is a good man. Yet Patterico heavily disses people for hanging out with not only Brett Kimberlin, but with the guy who co-founded a high-profile charity with Kimberlin.

    But Obama? Obama hung out with Ayers and Dhorn directly! Every bit as nasty as Kimberlin. (Prairie Fire is a good starting point to see this.)

    What I’m getting at is asking if Patterico genuinely gives Obama the benefit of the doubt here (and as to his essential goodness) … because in point of fact Patterico seems pretty quick to disdain those who have knowingly hung out with criminals and terrorists in other contexts. OR is Patterico not applying his own standards equitably and is giving Obama far more deference and benefit of the doubt because he’s the President and powerful?

    What’s the difference between Chris Hooten and Obama really or between Brad Friedman and Obama?

    Patterico’s saying Obama believes dense and liberal things and we all know the background of his egregious former associates. So I’m asking if Patterico is going too far in giving Obama the benefit of the doubt.

    And I have been consistent on that point since, like, forever.

    By the way, if I’m right and Patterico IS giving Obama far more of the benefit of the doubt than he would offer to others, I don’t say that Patterico is doing this consciously. Humans seem to have a psychological weakness for deferring to the powerful and successful and, in general, construing to them more moral attributes than to others. This is just natural human psychology.

    I’m asking Patterico this as much to make that observation to him as any other reason. And one of my other reasons, I admit, is an anti-Obama bias (based on who he associated with).

    As Dustin points out, there ARE 200 dead people to account for and it makes a real difference whether Obama was just obtuse about what would happen if he tried this in civilian court compared to if he really did understand this is a quite likely outcome.

    Christoph (8ec277)

  43. Texas would execute the wrong guy. But how about in a military commission?

    Comment by imdw

    The system isn’t perfect, and that’s a very good attempt to change the subject, but in the case you’re probably referencing, the man is almost certainly guilty while a piece of evidence was tested and turned out to belong to the person he murdered. Lame.

    I suspect military commissions would have a similar accuracy as Texas.

    I don’t want to undermine the notion that we cannot find convicting innocent people to be acceptable. I don’t have to, while supporting Texas’s and the Military’s abilities.

    Dustin (b54cdc)

  44. “No, this is a reading comprehension problem on your part.”

    Christoph – No, it’s crappy writing on your part, trying to be too clever by half and failing miserably. No need for a 500 word comment to distract from a poorly structured original comment.

    daleyrocks (940075)

  45. JD–if your comment is addressed to me, the answer is, always and only under this name.

    daley–this is not a matter of military justice. We didn’t seem to need a military tribunal to deal with the perpetrators of the Oklahoma City bombing, and I don’t think military procedures and secrets would have needed to be revealed, especially to allow a witness like the one who was barred from testifying to testify. The witness was not questioned with enhanced techniques (apparently); and how his existence was discovered by US authorities has no real bearing on his credibility.

    kishnevi (a6ffde)

  46. Christoph. You said Opie was a Good Fellow.

    That was a movie about the mob.

    gus (3c4587)

  47. Is it clear that in a military commission trial, more evidence would have come in than came in during the civilian-court trial in New York?

    I’m not sure that I’m current on what the SCOTUS has left of the two different versions of the military commissions statute. Were I to guess — and I would very much rather not — my guess would be that even under the military commission system, the defendant would have been entitled to make essentially the same sort of evidentiary objections, but the military commission would have considerably more discretion to admit evidence that would be excluded by the civilian criminal courts. And if that’s so, there’s no guarantee, just a greater likelihood, that the un-used evidence would have come in during a military commission trial.

    But maybe the statute has brighter line-drawing than I recall, or has been interpreted in a way with that practical effect. Do you know this off the top of your head, Patterico? Anyone?

    Beldar (85e89d)

  48. The level of LIBTARD lunacy is hilarious.
    There are proven methods to handle enemy combatants. MILITARY TRIBUNALS.
    The rest of your gobbledeygook is just that gobbledeygook.
    Libtards always have a better idea that NEVER WORKS.

    gus (3c4587)

  49. “No need for a 500 word comment to distract from a poorly structured original comment.”

    The point of that was mostly to try to explain it to you since you almost invariably miss the point. The original comment was concise and not difficult to understand. Anyone can read the portion of Patterico’s post I excerpted and my brief comment (2 on this thread) and should be able to follow along.

    Yourself excepted, of course.

    Christoph (8ec277)

  50. They have so blithely ignored two hundred years of precedent on military commission, that it’s a wonder anything is still standing. After Boumedienne, the appeals courta have veered toward
    sanity but the heck knows anymore

    narciso (82637e)

  51. He didn’t didn’t bother opining because it’s his duty to know, either way. Trying to push the ‘good man’ meme is weak.

    Maybe, maybe not. No one can really know other than Patterico whether he thinks Obama was just too ignorant and biased to grasp it or, as I suspect, Obama grasped it just fine.

    Christoph (8ec277)

  52. …thinks the US court system is not capable of trying a mass murderer. And that’s all these poeple are.

    No, they are part of an active international network of mass murderers. Said network thinks of themselves as an army and has geopolitical goals. That might have something to do with why the Supreme Court has ruled that it is legal (consistent with the rule of law you like to pound people with) to try these people in military tribunals.

    Andcar (ce488c)

  53. “Libtards always have a better idea that NEVER WORKS.”

    That’s funny, we had a discussion about that the other day.

    Christoph (8ec277)

  54. Narciso, libs always portray themselves as more caring and gallant. Libtard idea’s do not work. They merely make libs feeeeeeeel good.
    Why should this muzztard filth be given a civilian trial? His crimes were not here and not committed as an American or visiting civilian.

    gus (3c4587)

  55. Let me be more specific (albeit still speculating):

    I’m almost positive that military commissions can still refuse to admit evidence of a confession if they find the surrounding circumstances under which the confession was given renders it untrustworthy and unreliable. There’s no per se rule, in other words, that all confessions come into evidence just because the trial is being held before a military commission.

    But I can well imagine that a military commission might reject application of a “fruit of the poisoned tree” doctrine, a remedy/sanction the civilian criminal courts use on the theory that it deters law enforcement personnel from violating defendants’ constitutional rights. And if that were the rule, then there might be a lot less discretion for a military commission to reject the “fruits evidence” that a civilian criminal court would be bound to reject.

    To the extent someone can point to specific un-used evidence, and specifically different rules for the military commissions that would have permitted it, I think there’s a much stronger argument to be made that this case demonstrates the impracticability of trying such defendants in civilian criminal courts. I think that’s what you need to complete the chain of causation in order to assert, persuasively, that trying this case in the civilian courts likely resulted in a different, and more unjust, result than would have been obtained before a military commission.

    Beldar (85e89d)

  56. Beldar. There is a major difference in concept between a Military tribunal and a Civilian trial.
    The Military tribunal is about the guilty being punished.
    The Civilian trial is about preserving U.S CITIZENS rights.

    gus (3c4587)

  57. “daley–this is not a matter of military justice.”

    kishnevi – My comment was about the military justice system in general, not this case. Civilian judges are not trained in the laws of war or military custom.

    Why was this case even brought in the U.S., because the property was the U.S. Embassy? This person should have been tried and executed overseas after thorough enhanced interrogation. There was no reason to try him in the U.S.

    daleyrocks (940075)

  58. Of course there was a reason to try him here. He attacked US.

    gus (3c4587)

  59. “Patterico is on record as saying Obama is a good man. Yet Patterico heavily disses people for hanging out with not only Brett Kimberlin, but with the guy who co-founded a high-profile charity with Kimberlin.

    But Obama? Obama hung out with Ayers and Dhorn directly! Every bit as nasty as Kimberlin. (Prairie Fire is a good starting point to see this.)”

    Christoph – A nice attempt at distraction, but a discussion for another thread.

    daleyrocks (940075)

  60. BTW, my questions don’t mean I’m in favor of civilian trials. I’m emphatically not, for a combination of reasons, only some of which vary from case to case. For example, in addition to the possibility that there were “technicalities” in the civilian court that wouldn’t have been enforced at all, or perhaps enforced as conclusively and aggressively, I think there’s another possible explanation for the verdict in this case: I think there is a greater likelihood in the civilian potential-juror population, as compared to the fact-finders in a commission trial, to engage in jury nullification — disobedience to and disregard of the evidence and the court’s instructions to reach a result desired on some other basis. But that’s an objection that I have to using civilian criminal trials for any of these cases.

    Beldar (85e89d)

  61. “Of course there was a reason to try him here. He attacked US.”

    gus – Of course, but he killed plenty of natives as well. Couldn’t they execute him there first? We get seconds?

    daleyrocks (940075)

  62. Beldar, great points.

    There’s no guarantee of conviction in a tribunal… and it’s not like you or anyone else really wants a system like that. As Patterico said, the potential for a murderer to walk free is where our system derives its credibility.

    The evidence would have stood a better chance of being heard. Perhaps some and not all, for example.

    I think you’re also onto something when you discuss the different juror pools. I suspect a lot of civilian jurors are very insulated from the stakes that lead to these interrogation techniques. They are harder to justify to someone who hasn’t really felt the impact of a terrorist. I can easily see some civilians refusing to convict, out of protest.

    We had a very good system in Gitmo, and Obama couldn’t allow that to proceed because every damn thing he touches has to be politicized.

    Dustin (b54cdc)

  63. Well technically, it was a US installation abroad, so may be the urgency was less, there is no real logic to the whole thing, they had instituted a commission for Al Nashiri, the master mind behind
    the USS Cole bombing, then they stopped it, last spring

    narciso (82637e)

  64. Daleyrocks. Obama USED Ayers and Dohrn. He needed them and they needed him. Obama hung with Jeremiah Wright for 20 years. Obama USED him, then shit on him. To PRETEND that Obama did not know WHO and WHAT, AYERS, DOHRN and WRIGHT ARE/WERE about is so comical and ridiculous, that it makes the person who PRETENDS a CLOWN. If Obama DIDN’T KNOW. Obama is a stupid fool. Obama is a CALCULATING USER and MARXIST. Obama had an ideological MIND SET that has no compromise. He is a MARXIST.
    Obama RAMMED SHIT THROUGH, while the USEFUL IDIOTS and LIBTARDS were still in full HARD-ON for this loser and fraud.
    Obama has NEVER ASSOCIATED with normal well adjusted people. Obama is not a LIBTARD. The NUT-JOB LEFT has not realized this yet. Obama is a psychologically distraught Marxist freak.
    The LIST of LOSERS/FREAKS and COMMIES that Obama has been friends or associates with is SCARY.

    gus (3c4587)

  65. Daleyrocks. Yes, we could have left it up to Kenya or Tanzania to take care of him.
    Who captured him again??
    I mean with all these natives killed and such, surely we could have left it to Kenya and Tanzania to make US whole. Right?
    In fact, Kenya and Tanzania, could have given him a trial!!!! We did!!!
    How did that work out???

    gus (3c4587)

  66. Nine years since 2001…and not one terrorist has been executed yet.

    America is hopelessly decadent.

    Dave Surls (5c329d)

  67. Au contraire Mr Surls. Timothy McVey was executed.

    gus (3c4587)

  68. Beldar,

    Based on this article, the trial judge apparently wrestled with the same questions you’ve asked and apparently concluded a Military Commission would not admit the excluded evidence either. Maybe he’s right and maybe he’s not. He also seems to have made a legal determination that the excluded witness’ testimony wasn’t credible, something I thought would be a factual rather than a legal issue.

    DRJ (d43dcd)

  69. Nine years since 2001…and not one terrorist has been executed yet.

    America is hopelessly decadent.

    Comment by Dave Surls — 11/17/2010 @ 10:05 pm

    I don’t expect that this civilizational struggle with expansionist Islam, but I digress, is a fight the west is actually going to win.

    Au contraire Mr Surls. Timothy McVey was executed.

    Comment by gus — 11/17/2010 @ 10:07 pm

    Christoph (8ec277)

  70. “How did that work out???”

    gus – I think we understand each other!

    daleyrocks (940075)

  71. Beldar, we didn’t have to put THE SAME QUESTIONS into the hands of a Civilian Judge/Lawyer. Civilian Judges/Lawyers are trained to protect the defendants RIGHTS and to FIND in favor of the DEFENDANT vis a vis his Constitutional Rights.
    That is not how WARS are (pardon the obvious pun…..PROSECUTED).
    Liberals LOVE THE LOOP HOLES that set an American defendant free. That mindset is silly, but moreso, it runs counter to our National security and military/war interests.

    gus (3c4587)

  72. Daleyrocks. Bingo. We are on the same page.

    gus (3c4587)

  73. I don’t expect that this civilizational struggle with expansionist Islam is a fight the west is actually going to win.

    It really depends on what you mean.

    It is quite impossible for the Islamists to win. They are hopeless for many reasons, and while there may be enough misery in the world for a very long time that we never see the day when this strain of thought dies out, it’s never going to win.

    Things could get desperate enough that the West casts aside a lot of the things I like about our society, and push back harder. I believe we will eventually get to that point.

    We have lost the war to some extent when we’re groping kids and nuns at the airport. If we define victory as getting all of our freedom back, I don’t see how we win in my lifetime.

    We lost a lot of freedom on 9/11. Osama Bin Laden and his cohorts did a lot of damage to the world.

    Dustin (b54cdc)

  74. Yeah, that’s true. they did McVeigh in 2001, right before the Al Qaida attack.

    But, that’s different.

    He was a right winger.

    Dave Surls (5c329d)

  75. Of course, another detainee — Canadian Omar Khadr — plead guilty despite similar interrogation issues. Apparently he and his lawyers didn’t think the Military Commission rule would prevent that evidence from being admissible. Thus, while it may be an open question, I suspect the Military Commission rules regarding admissibility are not as clear-cut as criminal court trial rules.

    DRJ (d43dcd)

  76. Dave Surls, you do remember all the LIBTARDS fighting for McVey and fighting against his EXECUTION. Right??
    McVey got EXACTLY what he deserved.
    Why are LIBTARDS not on board for MUZZTARDS to get the same REWARD??

    gus (3c4587)

  77. 20 to life dude. 20 to life.

    Brett Kimberlin got 50 years and was paroled after 14.

    In any event, 20 to life is a poor sentence for over 200 murders — especially when the sentence resulted from a technicality that could have been avoided.

    Patterico (c218bd)

  78. By the way, if anyone thinks Christoph’s point is idiotic, you’re free to ignore it as I will continue to do.

    Patterico (c218bd)

  79. DJR. You hit on another point that LIBTARDS seem to miss in their ZEAL to analyze all THE RULES!!
    These MUZZZTARDS were ALL ABOUT THE 72 VIRGINS and BLOWING UP!!!! But not for THEMSELVES.
    Like OBAMACARE. It’s GREAT. But not for CONGRESS!!!
    ALYNSKI taught LIBTARDS to hold YOU and I, to the STANDARDS that we HONESTLY and OPENLY espouse.
    In other words.
    If you have a PARKING TICKET. And you are a Conservative with law and order values……you are now a hypocrite!!! How can you judge anyone when you yourself have not lived up to YOUR STANDARDS!!!! They HAVE NO STANDARDS. Ergo they can never FAIL TO LIVE UP TO a STANDARD.
    Sarah Palins’ daughter got PREGNANT!!!
    Sarah Palin is against TEEN SEX FOR FUN!!!
    Sarah Palin is a FAILURE, because she has a STANDARD.
    Meanwhile back at the ABORION CLINIC…..

    gus (3c4587)

  80. The point to which I am referring (to be clear, even if it means turning off “ignore” for one more comment), is this:

    Humans seem to have a psychological weakness for deferring to the powerful and successful and, in general, construing to them more moral attributes than to others. This is just natural human psychology.

    I bet studies have shown that, just like they show conservatives are more stupider than liberalses!

    Back to ignore . . .

    Patterico (c218bd)

  81. No, people like me realize that this struggle with the jihadis is not what you think of it. You think of it as merely trying to expunge from the world a group of really nasty people. People like me understand that this is really a struggle to vindicate American ideals
    – Comment by kishnevi

    So, I assume I’m to be thankful that there are people like you who are smarter than me and can really understand what is going on.

    I did not mean my previous comment as a snark. To put it a different way, I’d like to know if Holder really thought we could convict these cases in a civilian court and is surprised that we didn’t; is he going to consider, “Keeping him in custody anyway”?

    Prosecuting a terrorist from another country is not like prosecuting one person who did a crime and is locked up, and everyone is safe because he is locked up. Information on how the person was tracked and captured, etc., will hurt the chances of catching those others still planning.

    I always thought when someone wanted to kill you, they wanted to kill you, not communicate over “ideals”.

    MD in Philly (3d3f72)

  82. PATTERICO. I love you blog. I have never said hello nor interacted with you heretofore.
    I am a Conservative…or better stated, I am the Conservative Evangelist. Most of my life I was a Democrat. I was abandoned.
    My youngest brother was Condoleeza Rice’s Director of Security for her last 2 years of State Dept. Security. She got 6 months after Bush left office. There is an obvious and palpable difference in SERIOUS governance, since Obama took over. Obama is a Kindergartner in knowledge/experience and any demonstrable love or fondness for the America we all know and love.
    Far too much time is spent debating LUNATICS.
    Obama is a LUNATIC. He is not a capable man.

    gus (3c4587)

  83. As Beldar said, there is the issue over jury nullification. The jury only found him guilty with one charge, yet they were afraid to be identified as jurors for fear of reprisals. What civilian wants to make themselves possibly a target for assassination for finding a terrorist guily?

    MD in Philly (3d3f72)

  84. I bet studies have shown that, just like they show conservatives are more stupider than liberalses!

    Back to ignore . . .

    Comment by Patterico

    I love how he’s conducting such a detailed examination based entirely on “Obama should have known X.” Just that you hold Obama responsible for this information entering into his decision, whether it did or not.

    It’s the complete opposite of blind trust, and there was no possible way to interpret it as ‘I trust Obama’s morality’.

    MD’s got some good points. If we know we’re going to resort to civilian trials, that directly hampers our ability to capture terrorists and thwart attacks. We fight wars differently than crime for a very good reason, and we shouldn’t attempt to roost on some moral high ground by refusing to compromise how we administer justice to war criminals.

    Dustin (b54cdc)

  85. MD in Philly. Holder has made MORONIC STATEMENTS vis a vis any POSSIBLE capture of Bin Laden. I’m sure you recall this? Holder is a clown. He says shit that he certainly has not THOUGHT THROUGH. The CONSTITUTION is either OBSERVED or it is NOT observed. BATTLE FIELD, WAR TIME and MILITARY JUSTICE is SEPARATE and EQUALLY MORAL and VALID as THE U.S. CONSTITUTIONAL CRIMINAL JUSTICE SYSTEM!! THEREIN LIES THE LIBTARD PROBLEM.
    Libs think that EVERYTHING on EARTH is subject to our CONSTITUTION………EXCEPT TSA STRIP SEARCHES and AIRPORT GROPES.

    gus (3c4587)

  86. MD in Philly. Again, therein lies the problem.
    FOREIGN TERRORISTS cannot possibly be granted a JURY of thei PEERS.
    It’s an illogicl clusterfuck from the GET GO.
    Second. Why do we want to give OUR CITIZENS rights to those who are NOT our citizens and don’t themselves respect OUR RIGHTS???
    I understand this issue.
    LIBTARDS. Semi-educated libs. Who are smart by half. See the world as a world of CONSTITUTIONS.

    WOW.

    gus (3c4587)

  87. Dustin. Thanks man.

    gus (3c4587)

  88. This trial demonstrates that, in the War on IslamoFascism, capture is not an option.
    Or, as many a Hollywood Cowboy has said:
    “The only good Indian, is a dead Indian!”

    AD-RtR/OS! (68ed01)

  89. we did declare war after 9-11. What do you think the authorization to use force is?

    um, an authorization to use force? It satisfoies the War Powers Act, but it is not a “declaration of war.” WAR does more than allow the President to use force overseas — it establishes a state of War in which certain emergency powers are available that are not available in peacetime.

    What we got was War Lite, and no clear demarcation of condition. One of the good things about a state of war is that when it is over, the government’s emergency powers dissapear. What we have now is a lot more fuzzy.

    Kevin M (298030)

  90. Patterico – I’ve got your studies RIGHT HERE. But if you touch my junk, I’m going to have you arrested.

    daleyrocks (940075)

  91. And no, there does not have to be words like “we declare war” (although I would favor such), but the establishment of a state of war needs to be clear for domestic powers to come into play. It would also help if it was clear what would end thee war so said domestic powers have a shelf life.

    Kevin M (298030)

  92. “By the way, if anyone thinks Christoph’s point is idiotic, you’re free to ignore it as I will continue to do.”

    Patterico attacks those who associate on a blog with friends of friends of Brett Kimberlin. Obama launched his political career in the living room of domestic terrorists and routine (if being responsible for knocking off an armored car and killing two police officers is “routine”) criminals William Ayers and Bernadette Dohrn.

    Patterico assures us Obama is a good man and gives him the benefit of the doubt as to his motives.

    Ironically, my question to Patterico was whether he believed Obama was being intentionally ignorant of likely outcomes or, psychologically, had allowed himself to be deluded.

    “you’re free to ignore it as I will continue to do”

    Quite! I couldn’t have put it any better than that. My theory is that Obama isn’t the only one ignoring things (and I’m not just talking about my comment either); I’m referring, of course, to Patterico having a tendency to give Obama more of a benefit of the doubt than he would anyone else who had had his associations.

    Christoph (8ec277)

  93. That should have read:

    “Patterico attacks those who associate on a blog with friends of Brett Kimberlin … ”

    I was originally going to word it simply “friends of friends”.

    Christoph (8ec277)

  94. Christoph, the vast majority of your comments have nothing to do with the topic, and are transparently flamebait.

    Your summary of the ‘attacks’ on Chris Hooten are a lie. Asking him questions is not an attack.

    Your summary of the ‘good man’ meme you’re trying to dig up from 2 years ago is a lie. You’re a psycho to raise your kid to hate the president, and you’re ignoring the meaning of that discussion in order to replace it with one the author already denied. That’s dishonest and extremely hostile.

    Your summary of this blog post as claiming ‘should have known’ = ‘I grant Obama special morality I don’t grant others, so I am denying that he knew this’ when it’s really saying ‘he can be held responsible for knowing this, and I’m not going to pretend I can read his mind’ is a lie. Your pathetic attempt to psychoanalyze something that didn’t even happen is, again, a lie.

    You’re a weasel. No one respect you, here or at that blog you desperately are attempting to curry favor at. Nobody respects a weasel.

    Please stop trying to change the subject of every single thread in order to condemn someone or something.

    Dustin (b54cdc)

  95. “20 to Life” represents the statutory range for a sentence based on the count of conviction. Federal sentences are determinate, and the judge will sentence him to a specific number of months between 240 and a life sentence — it’s solely up to the discretion of the judge to determine what is appropriate.

    I expect the judge will give him life. The evidence clearly supported his involvement in the plot to blow up the embassy. The court can consider all the evidence at trial, including evidence offered on all the acquitted counts.

    This “smells” to me like a compromise verdict. You had a juror on Monday ask to be excused, saying she was the lone holdout and feared further verbal assaults from all the other jurors. I seriously doubt all 11 jurors were berating her over her refusal to acquit on every charge.

    Instead, my supposition is that she wanted to ACQUIT on all charges, and the remainder of the jurors wanted to convict on all charges. In order to reach a verdict the 11 jurors agreed to join her in acquitting him on all but one charge, and she agreed to convict on that one charge — in her view, the least serious charge.

    This happens ALL THE TIME in difficult jury deliberations, especially where there is only one holdout.

    She’ll be disappointed to learn that the defendant’s sentence is likely to be the same on one conviction as it would have been if he had been convicted on every count.

    shipwreckedcrew (436eab)

  96. Thanks for the insight, SWC. Even if your guesses are inaccurate, it’s interesting to think about how that works.

    ‘feared further verbal assaults’.

    That’s pathetic when we’re dealing with justice over the deaths of hundreds of people.

    If you’re right, and he gets life, and serves life, that is close to the best we could have hoped for in this system. But Beldar’s comments are being bolstered as I learn more about this case.

    Dustin (b54cdc)

  97. Herein lies the particular problem in this case:

    Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody. It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced. [1] In these circumstances, the Constitution does not permit Abebe to testify in this criminal trial unless the government has sustained its burden of proving that (l) the connection between Ghailani’s coerced statements and Abebe’s testimony is sufficiently remote or attenuated, or (2) there is another basis upon which that testimony properly may be received.

    The Court has had the benefit of extensive evidentiary submissions, a three-day hearing at which Abebe and representatives of the Federal Bureau of Investigation, the CIA, the Tanzanian National Police testified, legal briefs, and skilled argument. On the basis of that record — including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities — it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’ s coerced statements to permit its receipt in evidence. In a previous decision, it rejected the other bases advanced by the government for allowing Abebe to testify. United States v. Ghailani, _ F. Supp.2d _, 2010 WL 3430514 (S.D.N.Y. Aug. 17,2010). Accordingly, the motion to preclude Abebe’s testimony is granted.

    Now we’ve all seen Law & Order. or JAG. there is no way to recover from that kind of mistake, which
    separates it, from such similar events as the Khadr plea, which was still woefully under the mark

    narciso (82637e)

  98. Disgusting. The man is a murderer.

    Terrye (ce0d6f)

  99. “Brett Kimberlin got 50 years and was paroled after 14.”

    What kind of parole is there in the federal system?

    “Federal sentences are determinate, and the judge will sentence him to a specific number of months between 240 and a life sentence — it’s solely up to the discretion of the judge to determine what is appropriate.”

    Don’t they have sentencing guidelines?

    imdw (56dcea)

  100. “She’ll be disappointed to learn that the defendant’s sentence is likely to be the same on one conviction as it would have been if he had been convicted on every count.”

    I think this applies to a lot of people who are up in arms.

    imdw (56dcea)

  101. The inadmissable evidence here would probably not have been admissable in a Military Commission either.

    That being the case, I’m not sure what the point of this post is.

    Edgonzo (6febc2)

  102. “That being the case, I’m not sure what the point of this post is.”

    It’s a critique of the evidence collection practices in the war on terror, and the unnecessary secrecy surrounding them.

    This leads to dissatisfaction where an otherwise satisfactory verdict from the punitive perspective fails to provide the catharthic effect demanded by those that feel this administration is not tough enough on terror. Also, a success can’t be a success.

    imdw (948251)

  103. I suspect that dimwit’s assessment of the point of this post is drastically different than the author’s.

    JÐ (0d2ffc)

  104. #87, you’re wrong. The notion that a state of war depends on a declaration of war by Congress has no basis in law. There is no requirement for any action by Congress, let alone the invocation of some magic formula such as “we declare war”, in order for a state of war to exist. When President Bush got on TV on the evening of 11-Sep-2001 and said we were at war, we were at war for all legal purposes.

    This isn’t up for discussion; there is no language in the constitution or any statute requiring such a declaration, and courts have recognised that fact since the 1790s. See especially the Prize Cases arising out of the Civil War.

    Milhouse (ea66e3)

  105. As a lawyer, why aren’t you pleased? Leaving aside how foreigner are supposed to realize the guys who torture him are somehow different from the nice guys who question them, coerced confessions have been sort of verboten in this county since the 30’s and YOU know that. The idea that the gravity of charges alleged changes any detainee’s rights is such a weird, authoritarian standard for someone to adopt.

    We tried him, we convicted him, and now he will go to jail for 20 years.

    I can’t believe, Patrick, that you are allowing your politics to outweigh your oath to the California bar and the US Constitution. We have to abide by the law.

    timb (449046)

  106. Kevin M., you are simply flat out wrong. The AUMF meets all the Constitutional requirements of a declaration of war – which are few.

    Christoph, continuing the “good man” attack on Patterico shows what we’ve known for quite some time, you are a bile-filled clown.

    SPQR (26be8b)

  107. #97. the Constitution does not permit Abebe to testify in this criminal trial unless the government has sustained its burden of proving that (l) the connection between Ghailani’s coerced statements and Abebe’s testimony is sufficiently remote or attenuated, or (2) there is another basis upon which that testimony properly may be received.

    Wrong. The constitution couldn’t care less how Abebe was identified as a witness. The constitution couldn’t care less how any evidence was obtained. The rule that evidence that was discovered because of unlawful behaviour by government agents was invented by the Supreme Court in the 20th century, and it has never even pretended that it’s a constitutional requirement. The rule was invented for a good reason, but that’s all it is, and there’s no reason a military commission would have to obey it. In fact there’s no reason the trial court couldn’t have decided to waive it in this case, and let the Supreme Court decide whether to overrule that decision. I doubt that the judge would have been in any danger of impeachment for such a decision.

    The whole point of the exclusionary rule is to remove the incentive for investigators to break the law. If the only reason they’re doing so is to develop evidence against the suspect, then if they know that will prevent the evidence from being admitted they’ll try their best not to do it. That’s why the good faith exception exists: if the police made every reasonable effort to stay within the law, then the rule has done its work and there’s no need to exclude the evidence. In this case the court agreed that the interrogation (which the government stipulated to have been unlawful) was conducted for urgent intelligence purposes, and therefore would have been conducted in exactly the same way even if the interrogators knew exactly how this trial court would rule. Therefore there is no reason to exclude the evidence obtained.

    Milhouse (ea66e3)

  108. timb, your attack on Patterico’s adherence to the law is false. Nothing contrary to the law is advocated by Patterico above, and you don’t even bother to substantiate your troll attack.

    In other words, business as usual by you.

    SPQR (26be8b)

  109. I thought that dishonest attacks against Patterico’s professional work based on arguments here were not permitted.

    They should not be. This was a craven distortion.

    Machinist (74634b)

  110. um, an authorization to use force? It satisfoies the War Powers Act, but it is not a “declaration of war.”

    You’re incorrect on this one. The AUMF is a declaration of war. There’s no Constitutional standard for the form of the declaration of war, only that Congress has the power to declare it. If you look at the declaration of war from WWI, it reads remarkably similar to the AUMFs.

    Some chump (e84e27)

  111. This applies to the comment at 6:26 by Timb.

    Machinist (74634b)

  112. #103, there was no coerced confession. This is about a witness whom nobody alleges was coerced in any way. The problem was that the witness was identified during an interrogation that the prosecution stipulated was coercive; but so what? Coerced confessions are excluded because they’re unreliable; how is an uncoerced witness’s testimony unreliable merely because of how investigators learned of his existence?

    Milhouse (ea66e3)

  113. #108, not only that, but the constitution does not require a declaration of war at all. Anyone who claims that it requires one has simply been careless in reading it. All it says is who can issue such a declaration, not that one must be issued.

    A similar confusion exists with regard to the fourth amendment. Contrary to what you’ll read in many places, it does not forbid police from searching premises without a warrant. All it says is how a warrant shall be issued, not that one is required in the first place. Read it and you’ll see.

    Milhouse (ea66e3)

  114. UPDATE: Some commenters claim that this testimony would have been barred in a military commission as well. I disagree, and explain why here.

    Patterico (c218bd)

  115. Like kishnevi, timb needs to learn to read if he is going to insult my professionalism. timb, this is about derivative evidence. Read first, comment second.

    Patterico (c218bd)

  116. Machinist, Patterico has made a decision to put up with all manner of nonsense from some commenters. I guess I shouldn’t complain; he puts up with me.

    But it can be frustrating; I have never seen him attack a commenter, but we do get folks posting who seem to think trash talking the host (or even posting personal information about him) is perfectly okay.

    Eric Blair (720ce1)

  117. imdw @ 97 and 98

    There are sentencing guidelines, but the Booker decision several years ago made the guidelines merely advisory, and not binding on district judges.

    The judge can consider all the deaths in reaching his decision about where in the range of 20 to life that he is going to impose sentence. Given the strength of the evidence — if the judge agrees that the evidence was overwhelming — he can sentence Ghilaini to life in prison — no parole — if he wants to. I think he will.

    There is no parole in the federal system. A defendant serves approximately 85% of the sentence imposed. He can earn “good time” credit of only about 15% if he has no disciplinary issues while in custody. But in the federal system, “life” means life — no release unless there is a commutation.

    shipwreckedcrew (436eab)

  118. SPQR–

    Kevin M., you are simply flat out wrong. The AUMF meets all the Constitutional requirements of a declaration of war – which are few.

    Then why are there a pile of lawyers arguing the other side of that? Why did the President and Congress fall all over themselves in 2001 saying that the 9/11 resoltion was NOT a declaration of war?

    My point, and I’ve yet to see it addressed, is that IF they passed a resolution flatly and plainly declaring war, the “are we really at war?” argument would be silly and the idea of treating the enemy as violators of criminal law would be laughable.

    Yes, the AUMF is, for the purposes of military action, legally sufficient. But POLITICALLY it is not “War” but “War Lite.” No moral power imbued to the executive (or not for long), no newspapers ran a “WAR!!” headline, and the courts quickly decided that legally the President’s power to deal with illegal combatants was extremely limited.

    In short, your argument is largely refuted by the fact that, 9 years later, we are still arguing about it.

    Kevin M (298030)

  119. #116, there will always be a bunch of lawyers arguing for whatever lefty cause you care to nominate. It doesn’t mean they have a case. Any argument over whether a state of war exists is silly, and would be silly even without the AUMF. A state of war existed the moment al Qaeda attacked us; the President’s recognition of that fact, on the evening of 11-Sep-2001, was legally more than sufficient. There isn’t and never has been any requirement for a formal declaration of war, by Congress or anyone else.

    Milhouse (ea66e3)

  120. Question: Why do you suppose they left out the “state of war exists” bit from the 9/11 AUMF? They forgot? Or, just maybe that they didn’t want to, because it would have deeper political ramifications.

    Again, if they had done that, we would not be having serious discussions about what to do with these folks, and not even this Administration would be trying to pretend that normal civil rules apply.

    Kevin M (298030)

  121. “Why did the President and Congress fall all over themselves in 2001 saying that the 9/11 resoltion was NOT a declaration of war?”

    Kevin M – Because calling it a declaration of war messes up all sorts of treaties we have in place which invoke that specific language. The first Iraq War was also conducted under an AUMF. There is precedent for this and you might want to educate yourself. The lawyers arguing the other side are like tax protesters arguing income tax is illegal.

    daleyrocks (940075)

  122. Legality aside, Kevin’s got a great point that the vagueness of our war effort has implications for the government’s powers, and that this is not a good thing.

    Dustin (b54cdc)

  123. The lawyers arguing the other side are like tax protesters arguing income tax is illegal.

    Comment by daleyrocks

    Think this is a valid comparison. We have a carefully worded authorization that is meant to work around a bunch of issues.

    One of the consequences if the problem Kevin is referring to, but we are at war, regardless, because Congress authorized what we are doing.

    Dustin (b54cdc)

  124. Ghailani was captured in Northern Waziristan, by Pakistani forces, one assumes either Army or Frontier Corps, ISI I would tend to doubt, it’s hard to imagine how civilian rules of evidence would ever apply in this circumstance

    narciso (82637e)

  125. “A state of war existed the moment al Qaeda attacked us;”

    In 2001? Because the event this guy was tried for took place in 1998. Was there a “state of war” then?

    imdw (c5488f)

  126. Well there had been a previous declaration in 1996, that went unheeded

    narciso (82637e)

  127. A State of War…
    On Aug 23, 1996, OBL declared, in a Fatwa he issued, war on the United States of America, and other decadent Western societies.

    Now, the question arises, does a declaration have to be bi-lateral?
    I think not.

    When the Islamic Republic of Iran attacked and occupied the U.S. Embassy in Tehran in 1979, under International Law, a State of War began to exist, as that action was an attack on the sovereign territory of the United States. Under that IL, a State-of-War exists to this date between the United States of America, and the Islamic Republic of Iran.

    The Congress of the United States, operating under the provisions of Article I, Setion 8, in October 2001, passed and presented to the President for his approval, an Authorization for the Use of Military Force in Afghanistan, and subsequently in October of 2002, an Authorization for the Use of Military Force in Iraq.

    These had nothing to do with the War Powers Act, which is used to ratify, or deny, force use after the fact. These were, in fact, Declarations that the United States was prepared to go to war with these named countries if the demands of the President were not complied with.

    As to al-Quada(sic), they (through their spokesman, OBL) declared war on the United States in 1996 in this Fatwa published in London’s Al Quds Al Arabi under the title of “Declaration of War against the Americans Occupying the Land of the Two Holy Places.”

    It might be an “inconvenient truth” to acknowledge, but it is a truth that this does constitute a formal declaration of war by a foreign interest who has the capability and will to enforce its’ demands, which it demonstrated with the bombings of our Embassies in Kenya and Tanzania, and the attack against the USS Cole, and other events.

    As to the niceties of the treatment of these “holy warriors” in captivity, they are not recognized combatants since they do not comply with the provisions of the Geneva Conventions on Land Warfare.

    Fuck Them!
    And fuck all those who protect them!

    AD-RtR/OS! (a60876)

  128. Here’s a link to OBL’s Fatwah (forgot to include it above)…
    http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html

    AD-RtR/OS! (a60876)

  129. “Christoph, continuing the “good man” attack on Patterico shows what we’ve known for quite some time, you are a bile-filled clown.”

    Those two words aren’t essential to my point (although I included them as a possible hint at an explanation).

    My point is Patterico gives Obama the benefit of the doubt as to his motives in a lot of cases where there is no way he would give Brad Friedman or anyone else associating with Brett Kimberlin (or terrorist cop-killers such as the Ayers/Dohrn team) similar deference.

    And deference is the right word.

    Christoph (8ec277)

  130. My point is Patterico gives Obama the benefit of the doubt as to his motives in a lot of cases

    Examples, please.

    Dmac (498ece)

  131. Christoph, your “point” relies on misrepresentation.

    Hence, the conclusion which remains unrebutted.

    SPQR (159590)

  132. I gave one in comment 2.

    Christoph (8ec277)

  133. Dmac,

    It’s a pattern I’ve observed and I haven’t got a list of all the reasons for thinking so in front of me at the moment. Obviously 2 is one, as is the good man thing, and so on.

    But if you just go to the Obama category and check out DRJ’s posts on Obama, I believe they’re more balanced and critical. That jumps out at you right away.

    It’s subjective, of course, depending on how one feels about Obama. DRJ, I believe to use as an example because she’s written many posts about him (just check out the posts’ headlines) has a more negative opinion about him than does Patterico, and I have a more negative one than DRJ. The truth may well meet in the middle.

    But objectively there’s no getting around the Obama/Ayers/Dohrn connection, something that would ordinarily offend the hell out of someone like Patterico what with his feelings on domestic terrorists and cop-killing criminals, and this objective fact has increased my subjective disdain. I’m simply observing that, in my opinion, were Obama anyone other than someone of his status, Patterico would spend about the same time pointing this out as I do … like he does when Friedman comes up, Chris Hooten comments, or what have you.

    Sure, I get that Obama’s the President so it’s necessary to move behind the whole terrorist, cop-killer associating-with past. I just find it more difficult than some.

    Now Patterico is critical about a lot on policy grounds … and that’s probably great politics … and I obviously agree with him about most of it … but I’m just saying that he’s not slow to extend that criticism into the moral realm for other people who associate with such awful criminals.

    But, yeah, maybe I’m making too much of it. Maybe Patterico is right even on the moral question. I say that without sarcasm. I have judged people too strongly and too quickly.

    But I do think there’s a real difference between judging someone overly harshly in a debate with mostly law-abiding, pro-life, pro-economic freedom people on a blog and someone who associated closely with the author of Prairie Fire on the other. Maybe I’m wrong and am missing something entirely. However it’s my value system that a person should be judged using the same ethical standard whether they are powerful and popular or not.

    And that is not the normal human standard! Not at all. Psychological test after psychological test shows that good-looking people are given the benefit of the doubt, after all. Look at an ugly woman seducing a teenage boy and a hot blonde do it and tell me their sentences will be the same. They will not be.

    What about popularity and status? Roman Polanski, O.J., Michael Jackson?

    To many common people, they rush to defend them based on their popularity. This is common, normal, and unfortunate human psychology.

    Patterico is pretty much immune to that because they’re celebrities and I don’t think he gives a crap. I am giving my opinion — possibly wrong — that he is less immune to it in someone vested with the office of the Presidency.

    Christoph (8ec277)

  134. Studies have shown that drawing incorrect conclusions about the subject of one blog post and trying to relate it to the conclusions of other unrelated blog posts generally results in incorrect conclusions or analogies.

    daleyrocks (940075)


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