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26 Responses to "Democrat theme of the week: “Let’s not ‘cower’ over KSM civilian trial”"

Carol says:

November 18, 2009 at 10:42 am

Maybe the “next 9/11” will wake up the ignorant jerks who have forgotten about 3,000+ Americans slaughtered at the hands of the “criminals” enjoying their vacation at Gitmo.

Damn it, I’m pissed!!!!
NC Cop says:

November 18, 2009 at 10:56 am

Being concerned is not “cowering”. God help them if anything happens as a result of moving this trial to NYC.

God help them.
bill glass says:

November 18, 2009 at 11:30 am

put simply, these clowns are again ‘projecting’…..what they think about someone or something is what they accuse the loyal opposition of – holder has used that one before, too, regarding the subject of racism; politically, the moving of the terrorists to nyc for trial is ‘over the top’ and indefensible…polls show that the american people are overwhelmingly opposed.
FUKos says:

November 18, 2009 at 11:55 am

We’ve already heard what American liberals like Markos had to say about the death of Americans and the desecration of their bodies:

SCREW THEM.

F*ck you, Kos. Go crawl back into your hole.
Kate says:

November 18, 2009 at 12:12 pm

The idea of painting conservatives as cowards is interesting. What would these liberals know about valor? Where have they ever taken a stand to defend American,abroad or at home.

You would think the touch-feely, emotion ridden liberals would have a heart for the victims of 9/11 since they are the biggest advocates of victim-hood of all kinds. But, no, now they are siding with the terrorist in the guise of constitutionality.

I was horrified to hear Gov. Ed Rendell say it was almost a fact that these terrorist would be guilty…now where is that old “Innocent until proven guilty” thing? If I was a lawyer for these pieces of human filth I think I would certainly assert that they couldn’t get a fair trial with those kinds of comments. How do you seat an impartial jury? I smell ready appeals to any quick conviction.
Bill says:

November 18, 2009 at 1:00 pm

Aren’t these the same brave, tough on terrorists, Liberals that tried everything in the book to force the U.S. military to throw down their rifles and run away from Al-Qaeda in Iraq….before finally being overcome by the real brave heroes in this country who untied the hands of the military and allowed them to win in against Al-Qaeda in Iraq?

So the bottom line is these Liberals think their strategy with the terrorist trials in NYC will be successful….even though all their strategies against terrorism up to this point have been unsuccessful?

Oh I almost forgot…they are still working on their top strategy of fighting terrorism by attempting to prosecute CIA agents and members of the Bush Administration over their tough strategy against terrorists. We’ll see how successful that strategy will be in the war against terrorists.
Transplanted Lawyer says:

November 18, 2009 at 1:07 pm

I’m probably what most readers of this site would call a “liberal.” I don’t think of myself that way, but I suppose that my own opinion in that regard isn’t really all that important. I would state that KSM and all the rest of these criminals should be tried and given due process. Because criminals is what they are, and that’s how we treat criminals.

But unlike, for instance, DailyKos, I have no particular problem with a trial before a military tribunal. If the evidence involved of necessity requires the finder of fact to consider sensitive or classified information, then a military trial or some other kind of closed forum may very well be the way to go. Yes, there is a Constitutional right to a public trial, but no Constitutional right is absolute. There are limits to the rights of free speech (libel laws, for instance); the right of gun ownership (convicted felons can and should be restricted from owning weapons); and the prohibition against unreasonable searches does and should relax in appropriate exigent circumstances. The right to a public trial may similarly also bow to a compelling governmental interest.

As I see it, the demands of due process would be satisified if a District Judge reviewed the information the government intended to base its prosecution on in camera and made a finding that it was of such a nature as to require a closed trial, maybe even before a military tribunal, in the interest of protecting national security. The Judge could also restrict KSM’s choice of counsel to an attorney who could pass a security clearance. Maj. Hasan, the (alleged) shooter at Ft. Hood, has a competent and entirely trustworthy lawyer who appears to be doing a good job for his client — so that our justice system works right. There is no reason I can think of that KSM cannot get the same sort of treatment.

Due process would be satisfied in my mind when an independent judge reaches these conclusions and imposes appropriate orders, and these seem to be rather obvious conclusions to reach. It can also be done in such a way to avoid show trials intended only to cast aspersions on the previous Administration, which is an obviously inappropriate use of a criminal trial in which a man’s life is at stake.

Kate is right that an “impartial” jury will be difficult to find, but KSM’s infamy is so widespread that this will be equally true in any court anywhere in the country, not just New York. And yes, there is that whole “innocent until proven guilty” issue, but KSM confessed — and did so before he was (allegedly) tortured; he did so in the context of bragging to his captors about his own brilliance and cleverness.

My point here is that it is a false choice between preserving our national security and adhering to our cherished Constitutional ideals. A common-sense approach to the situation reveals that we can easily have both, and we can rest assured that a fair process will produce a fair result — which in this case will surely mean a sentence of death for the excerable KSM.
Carlos says:

November 18, 2009 at 2:20 pm

Not being a lawyer and all, Transplanted Lawyer’s arguments seem to make sense.

Except that, these clowns are not citizens and have no rights under our Constitution because they are (alledged) captured enemy combatants who forfeited any rights when they plotted against or fought against our military forces. They technically, from what I understand, don’t even have the cover of the Geneva Conventions.

Seems to me Duh-1 and his sycophantic minions are doing everything in their power to give al Qaida every bit of military information they can under the guise of “fairness” so the enemy can rework their strategies and do even more harm to the United States.

What happens when bin Laden is captured? Do we read him his Miranda rights before questioning? The way this is all turning out (what with civil court trials and all) they’d better.
CB says:

November 18, 2009 at 2:34 pm

T-Law: Although most conservatives like me would have been okay with giving the Gitmo detainees military tribunals, we generally don’t believe the prisoners are entitled to the protections of the U.S. Constitution. They are not U.S. citizens, weren’t arrested in the U.S., weren’t arrested based on any violations of the U.S. criminal code, and have never stepped foot on U.S. soil.
CB says:

November 18, 2009 at 2:40 pm

Can someone remind me why it’s necessary to close Gitmo in the first place? If the plan is to stick these people in a prison in Illinois, exactly how does that constitute an improvement over their current status? It seems to make about as much sense as forcing the Birmingham transit authority to buy all new buses after the old ones were desegregated.
jeff says:

November 18, 2009 at 3:04 pm

Truly an excellent post, Sister, and I have linked to it.

And I’ll echo the sentiments of Carlos. Constitutional protections like due process, are afforded American citizens, not those who might participate in a war against us, and particularly not those who would orchestrate such a war. These folks didn’t rob a convenience store or sell crystal meth at the high school. They used improvised weapons of mass destruction to murder Americans, because they were Americans, and smashed symbols of American singularity in the process.

Any pretense that Obama’s/Holder’s intentions regarding this decision are honorable (or even redeemable, for that matter) is utterly dispicable. Obama, the Muslim, will benefit from ramping up the global mockery of America. To him the Constitution is “just a piece of paper.” To him, American Liberty is something to abhor and deride. To him, giving voice again to KSM is one more big “I-bow-to-thee” to the terrorists of the world.

Obama wishes to bring about a toothless America, because global socialism cannot exist alongside a strong and prosperous America.
Transplanted Lawyer says:

November 18, 2009 at 3:43 pm

I don’t view the provision of due process to these folks as something to which they are entitled. Rather, I see it as something the government is obligated to do. It’s not a question of the extent of their rights, but rather the limits of our government’s power. We have a Constitution that sets up a government of limited power, and that means something — it means that we are free.

Jeff, you in particular are headed down a slippery slope here — if we suspend our Constitution for the sake of al-Qaeda prisoners, then maybe we’re willing to suspend it for guys like Nidak Hasan. And from there maybe we’re willing to suspend it for a child rapist. And from there a murder, and from there the drug dealer you write about. It’s not about how detestable the accused’s crimes are. It’s about us holding ourselves and our government to our own standards, for own own sake.

In this time when we have good cause to mistrust the government and in particular the executive branch, I’m a little bit surprised that this point should need to be clarified to a bunch of self-identified conservatives.At the end of the day, bin Laden cannot destroy America — he lacks that power, and he always did. But we Americans have that power. I will not sacrifice our Constitution for the sake of human filth like bin Laden and KSM, no matter how detestable they are.

But I didn’t post here to troll for an argument about civil liberties, Constitutional law, or criminal procedure. I wanted to demonstrate that it is possible to have both security and due process; we don’t have to choose one over the other.
Cowardly Holder Channels His Inner Cowardly Greenwald - scipio62’s blog - RedState says:

November 18, 2009 at 4:46 pm

[…] Leahy and the despicable Markos Moulitsas picked up on that to spew their own venom, as noted by Sister Toldjah. She adds: 8 years after 9/11, these morons still apparently don’t get it. This has nothing to do […]
CB says:

November 18, 2009 at 5:22 pm

T-Law wrote: “It’s not a question of the extent of their rights, but rather the limits of our government’s power. We have a Constitution that sets up a government of limited power, and that means something — it means that we are free.”

You’re missing the point. The Constitution doesn’t constrain the government’s power over the rest of the world. If it did, FDR would have been required to get court approval before ordering the Normandy Invasion. The Constitution only limits the government’s power over citizens of the U.S. (and over the states themselves). To believe otherwise implies that the Constitution represents a compact of the states to constrain America’s inherent national sovereignty.

America is free to CHOOSE to give foreign terrorists “due process,” whatever that implies; but for anyone to argue that this is REQUIRED by the Constitution is seriously mistaken. Sorry if this sounds like I’m quibbling with your argument. I’m not willing to let this point slide just for the sake of being tractable.
bill glass says:

November 18, 2009 at 5:57 pm

cb – i’m with ya…plus, if you’re getting paid by the word, you’re way behind.
Sister Toldjah says:

November 18, 2009 at 6:01 pm

But, TL, didn’t KSM already confess – essentially admit his guilt? Isn’t it SOP that in both civilian court and military tribunal that if the defendant confesses all that is left to do is the sentencing phase?
KSM, cowardly conservatives, and Obama the Punisher | Tabitha Hale says:

November 18, 2009 at 6:07 pm

[…] the rest of the Lefties have decided that we’re “cowards”. Sister Toldjah nails it: Let’s see. You’ve got one side desiring to protect sensitive intelligence information from the […]
Carlos says:

November 18, 2009 at 6:25 pm

Ah, ST, there’s the rub. It takes but a stroke of the pen and KSM’s confession goes the away, inadmissible. And it would be fairly easy in NYC to find a judge who would do that for our glorious leader.

And CB, you’re spot on relating that the Constitution binds the government only to its citizens and the several states, and has nothing whatsoever to do with protecting the rights of other nations or their citizens at war with the United States.
jeff says:

November 18, 2009 at 6:35 pm

Transplanted,

The notion of “suspending” our Constitution isn’t applicable, because KSM and Bin Laden aren’t American citizens. There can’t be a suspension of something that you weren’t entitled to, in the first place. This was exactly my point. It isn’t a matter of law, as applied to a citizen, but of a response to an enemy who seeks only our destruction. Not a criminal…an enemy. And one who seeks not our compliance, or our wealth-spreading, or our hands of sympathy, or our unicorns.

They wish to have us (all of us) dead, or in submission. It’s a war, and it’s far from over. There is a slippery slope, and this administration has put us on it.
Transplanted Lawyer says:

November 18, 2009 at 7:39 pm

CB, on the one hand, yes this is a quibble because we seem to agree that if KSM gets a trial before a fair military tribunal, that would be due process. On the other hand, it’s not a quibble because I think your framing of this issue is fundamentally different than mine, and that reveals two different conceptions of what the Federal government is. That’s a worthwhile discussion to have because within it lies two contrasting ideas about the future of our country.

Now, I think that the Constitution IS a compact of the states to constrain and define the power of the national government. That’s admittedly a little bit different than your phrase “to constrain America’s inherent national sovereignty,” but I don’t want to ignore your point. The “sovereign” is the American people, not the Federal government. They work for us, remember?

Further, the highest and most binding expression of the will of that sovereign is the Constitution — which created, and at the same time limited, the Federal government. The entire point of having the Constitution in the first place was to balance the need for an effective national government while at the same time limiting its powers in such a way as to preserve the freedoms for which Americans had fought the Revolution. So to hold the government’s feet to the fire so as to make sure its actions are legitimate, each and every time it tries to do something, is the most basic exercise of sovereignty by a free people that I can even imagine. When the government exercises the awesome power of life and death, it is especially appropriate to exactingly hold the government’s feet to the fire.

The question is “what powers does the Federal government legitimately possess?” and therefore the distinction between an accused “foreign terrorist” (the presumption of innocence applies even to a guy like KSM) and “some actually innocent but fantastically unlucky schmuck who was in the wrong place at the wrong time” becomes unimportant. What is important is whether the government exercises its legitimate powers or whether it exceeds them.

I would not agree that the Constitution limits the legal power of the government over the rest of the world. As a legal matter, there is no such power to limit. Our inherent legal power as a sovereign people ends at our national borders; our legal powers elsewhere in the world are derived from treaties and similar legal arrangements which are all, as a matter of law, subordinate to the Constitution itself. The United States has no legal power over the rest of the world — absent a Congressional declaration of war (something which FDR had, which is why he didn’t need to go to court to invade Normandy). As a practical matter, we have overwhelming military power over anywhere we choose to project it. But we rightly seek legal authority for using that military power whenever it is practicable to do so, in the form of (for instance) a declaration of war or a treaty.

Now, since you mentioned World War II, please consider the Nuremburg trials. Note that when those trials took place, we had signed no peace treaty with Germany, and we were in effective military control of all German territory not under Soviet authority. Churchill wanted Parliament to pass bills of attainder and execute the Nazis, De Gaulle wanted to trot out the firing squads, and Stalin wanted to execute the highest-ranking 100,000 Germans who had ever worn a swastika. But we said, “No, we have to have trials first,” and that’s what happened.

Why did we do that? Did we do it because we liked the Nazis and respected them as worthy adversaries? Did we want to give the Nazis due process rights? Or did we do it because we believed we were somehow obligated to hold trials before killing them? If it was an obligation of some kind, from where did that obligation derive — and has anything happened to that obligation in the intervening 55 years that would make us act differently today?

Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue, at least that’s the issue the way I see it. (I don’t think that skepticism about the government’s exercise of power is a particularly “liberal” point of view, by the way.) We wouldn’t tolerate the government exceeding its powers when we had nooses ready for the Nazis, and we shouldn’t tolerate it doing so now that we have a poisoned needle ready for KSM.

Down the path you seem to advocate I see a powerful, unitary Federal government, with few limits on its sovereign power and the bulk of that power concentrated in the Executive. (I realize that you do not see it that way.) For so long as wise men and women lead that government, we can hope that all will be well, should a charismatic tyrant come along, the institutional limits on that person’s abuse of power would not be there. Down the path I advocate I see a constrained, limited and principled Federal government, which answers to the free citizenry of the United States. That government may not be as effective or efficient at solving problems and adherence to its principles may lead sometimes to results that look and feel unpalatable, but such a government is, it seems to me, ultimately more desirable than the first vision.
Transplanted Lawyer says:

November 18, 2009 at 7:42 pm

ST — there still must be a trial even when there is a confession. A confession generally is used as evidence of the defendant’s guilt and typically, it’s very compelling evidence.

Only if the defendant pleads guilty can we bypass a trial. Maybe KSM will plead guilty, we don’t know whether he will or not, because he hasn’t even been arraigned yet.
Americaneocon says:

November 18, 2009 at 9:21 pm

American Power tracked-back with, “Leftists Call Conservatives ‘Cowards'”.
CB says:

November 18, 2009 at 9:54 pm

TL: I admire your persistence and can agree with entire paragraphs of your latest response. That said, I still discern in your analysis a tendency to conflate concepts in a way that inevitably leads to the wrong conclusions.

First, while it may be appropriate to identify the American people as the “sovereign” to make a point about republicanism, in the present context, that observation is really misleading and beside the point. In the context of America’s actions before the world at large, the entity exercising the powers of the sovereign is the president.

Second, for that reason, the Constitution doesn’t represent “the highest and most binding expression of the will of that sovereign.” At least vis-a-vis the rest of the world, the “will of the sovereign” is expressed, in legal terms, through treaties and the like, but more generally in whatever actions the president may decide to take on foreign soil in the name of the United States.

Third, while it may be true in a colloquial sense that the collective citizenry of the U.S. “holds the government’s feet to the fire,” this isn’t really an exercise of America’s sovereignty. In asserting otherwise, you are conflating the concepts of national sovereignty that every country possesses with the rights of citizens in the U.S. to exercise their civil rights.

Having said all that, I basically agree that it makes sense for the U.S. to exercise its sovereign powers in accordance with “international law” whenever that can be accomplished consistent with our interests and without implicitly relinquishing measures of our sovereignty. It serves no useful purpose for the U.S. to identify itself as a rogue state when our aims and interest for the most part are consistent with those of other states and would be appreciated as such. However, note that this is well off the central topic of our discussion, which is whether the Constitution imposes limits on how the government deals with alien combatants captured on foreign soil.

Regarding Nuremburg, I don’t think it plays any larger role in this discussion than serve as an example of where the U.S. government, in its sovereign role, CHOSE to conduct itself in accordance with perceived international norms rather than brazenly act in a unilateral fashion. I’m not aware that any serious thought was given at the time or in retrospect that the U.S. government was actually required by its own Constitution to design and participate in those trials. While I have no doubt that our Constitution inspired the manner in which the Nuremburg defendants were treated, that doesn’t mean the Constitution required the U.S. government to act as it did.

You state: “Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue.” I disagree. The issue is whether the Constitution requires the U.S. government to extend to non-citizen enemy combatants captured on foreign soil substantially the same procedural protections enjoyed by U.S. citizens on American soil. And the answer is, it doesn’t. To arrive at that answer doesn’t involve “tolerating a disregard” for the limits the Constitution imposes on the government’s powers; it’s merely involves acknowledging that, when it comes to overseas enemy combatants, the Constitution imposes no such limits.

The limits on America’s sovereign powers you seem to crave are not imposed by the Constitution per se, but through the political process the Constitution guarantees. More specifically, if the citizens of the U.S. don’t like the way the president treats overseas enemy combatants, they can vote him out of office and/or elect a Congress that will use its powers of the purse-strings to rein him in.

Finally, your invocation of the specter of a “unitary executive” is all bark and no bite. The “unitary executive” is simply an observation that all of the executive powers of the federal government ultimately reside in the president. It would be a relevant concept to discuss in the context of a separation-of-powers debate, but I hardly see its relevance here, other than to make my seemingly uncontroversial observations seem somehow sinister.
Tom the Redhunter says:

November 18, 2009 at 10:03 pm

Re the post; Yes, I’ve seen this line of attack on any number of liberal websites. It’s remarkably silly.

More, it misses the point of our objections, perhaps deliberately so. I think it’s a way of avoiding debate more than anything else.
Transplanted Lawyer says:

November 19, 2009 at 1:48 am

CB, I’m happy to leave you the last word and thank you for an interesting exchange.
Eric Holder’s Very Bad, Posterized Day says:

November 20, 2009 at 1:41 pm

[…] — we on the right are somehow frightened of Khalid Sheikh Mohammed — fully deployed. Sister Toldjah and Monque Stewart each run that argument, such as it was, through the Cuisinart of Reason and […]

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