Comments on AverageBro.com: The Problem With... Terrorists And Guys Named Rudy...

@ Spool I do have to concede your Constitutional ...

2009-11-18T18:13:23.613-05:00

@ Spool

I do have to concede your Constitutional Rights argument though... well put, I think I agree, even though you mostly are saying "we have done it before", not "this is why we SHOULD do it".

Well thank you. It's always refreshing to debate with somebody knowledgeable on the subject of the law beyond what appears in the news or on talk shows.

Until the next one...

First off, I'm not an attorney or a law 'student' ...

2009-11-18T16:56:35.406-05:00

First off, I'm not an attorney or a law 'student' though I am a student of the law... I suppose you could call me a legal hobbyist. By trade I'm an InfoSec professional, which leads me naturally to questions of law and legality, but I suppose I really began this hobby when copyright intersected with computers in the late 80s and early 90s around questions of "piracy".

To answer your last question first, Yousef was captured by a foreign government and extradited, whereas KSM was captured by US military in a nation where no legal government existed even before we invaded, and no extradition treaties governed his removal.

One interesting thing her is that you're arguing that we MUSt do this through a criminal trial in Federal court, but Holder himself has said that 9/11 was both a criminal act and an act of war, so he had his choice.

Eric Posner's argument to this point suggests a less than pleasant possibility, one that has little to do with actual considerations of justice.

I think the argument really turns on whether we think 9/11 was an act of War. The constitutional argument is a stand-in for this actual position.

I do have to concede your Constitutional Rights argument though... well put, I think I agree, even though you mostly are saying "we have done it before", not "this is why we SHOULD do it".

@ Spool: Aren't the rights to a jury trial, to fa...

2009-11-18T11:40:36.733-05:00

@ Spool:

Aren't the rights to a jury trial, to face your accuser, to innocence until proven guilty, and to refuse self incrimination all Constitutional guarantees that these foreigners will be afforded in a Federal court? How does that square with your argument that they aren't being granted rights that should be reserved to US Citizens?

I am glad you phrased your question this way, because it narrows this discussion down to what we're really talking about: the basic rights associated with a CRIMINAL trial in America. When people hear "we're giving terrorists constitutional rights" they start thinking about all the freedoms that they normally enjoy in their day to day. And politicians know this!!! That's why to phrase it that way, without more, is disingenuous. You'll have every Tom Dick and Harry in middle-America believing that we are somehow elevating terrorists to full-blown U.S. citizenship status. Hardly the case.

Once we cut through all the BS soundbites and actually get down to brass tax, all we're talking about are the basic Constitutional rights associated with a criminal trial.

Two points:

(1) We apply these so-called "rights" to people accused of crimes in this country everyday, and we do so across the board and nobody in the media has ever said 2 words about it until now when politicians have made it into a soundbite. We apply these criminal trial rights to U.S. citizens, to illegal immigrants, to people we capture or abduct illegally in foreign nations and bring to stand trial in the U.S. (See U.S. v. Alvarez-Machain for a prime example of this), and yes, that includes so-called "terrorists" too. You don't get to skip trial in this country just because you label yourself a terrorist. You do the crime, you will stand trial. Period. So for those who take issue with with how we run our trials with respect to terrorists, then what they are really saying is that they have an issue with how we run our trials, period, because we don't make exceptions for anybody. Not even KSM.

(2) My second observation on this "giving terrorists rights" issue is this: If the only argument against federal court, as opposed to a military tribunal, is that there are no constitutional rights afforded in a military tribunal then there is no argument at all b/c that argument fails. Suspects standing trial for crimes in military tribunals DO have constitutional rights. In fact, in Boumediene v. Bush last year, the Supreme Court declared the military tribunals in Gitmo unconstitutional for this very reason. So in other words, if you were hoping to, for lack of a better word, "cheat" the terrorists out of any constitutional rights afforded to defendants during criminal trials by sending them to military tribunals, then save your energy. So to recap - not only are Military Tribunals slow and inefficient at convicting terrorists, they also afford terrorists constitutional rights. Go figure.

In closing, a challenge to Spool or anybody reading this blog:

How is the criminal trial of KSM in federal court today any different from the criminal trial of Ramzi Yousef in federal court that took place back in the 90's?

@ Spool: Interesting link re: the Erie doctrine. ...

2009-11-18T11:13:38.145-05:00

@ Spool:

Interesting link re: the Erie doctrine. So you're arguing that this is basically the most high-profile of a long string of cases already done the same way?

Not exactly, and my bad for not stating my point more clearly in plain English; once you raised the point about the distinction between Federal Court and State Jurisdiction I assumed I was talking to an attorney/law student familiar with this issue & the Erie Doctrine. If not the case then my bad.

With re to the state jurisdiction issue, what I am saying is that federal courts apply state law all the time. This is extremely common. Thus, the fact that this is a federal court will not matter because unless the issue is purely a federal question, federal courts, pursuant to the Erie Doctrine, must apply the state substantive law of the state in which they sit. Tort law, Contract law, Property law, Family law, Trusts & Estates law and Criminal law (ie. murder) are all state substantive laws, thus a federal court faced with a case involving a state law claim, for example, would be bound by the criminal/property/contract/etc. law of the state where it is located. Thus, state jurisdiction is key.

On a related note, this issue also goes to why the Federal Court chosen for this trial is the Southern District of New York, and why the two prosecutor's offices handling this case are the US Attorney's Office for the Southern District of New York (NYC) and the US Attorney's Office for the Eastern District of Virginia (Arlington). These were the two states literally hit by 9/11.

Can you point me to some previous cases that tackle the same legal issues?

As I was saying, this is extremely common. Simply google "Erie Doctrine" in parenthesis and "state substantive law" also in parenthesis and I'm sure you will find hundreds if not thousands of cases dealing with this issue. I came across one in a CLE the other day that you could look at:
In re DES Cases, 789 F. Supp. 552 - US: Dist. Court, ED New York 1992

@AB: Not all around the world. Eastern Europe ha...

2009-11-17T21:38:56.007-05:00

@AB:

Not all around the world. Eastern Europe has been solidly behind us all the way, as has India, most of Australia... I could go on. Basically, the "lack of popularity" boils down to Western continental Europe (mostly in the media), 60% or so of Central/South America, and Islamic nations that aren't called Dubai or UAE. The African nations that aren't utter disasters loved Bush and the USA, and continue to.

Moreover, unless you've been under a rock you might've noticed the French president pwning Obama on the national stage recently. Gordon Brown is cool to The One and David Cameron will likely be the next British PM... he's no Obama fan either. Merkel rebuffed him already before he was even elected, and he snubbed the Germans in return by not showing up for the Berlin Wall anniversary. The Polish are pissed at how we pulled out of missile defense on the anniversary of the Russian invasion, the Russians are laughing into their fur hats at us, and there are a few thousand dead Iranian democracy protesters who, if there is any justice in the world, will never know how Obama abandoned them to seal a nuclear deal that the Iranian regime promptly doublecrossed us to back out of. That's some popularity. Maybe if he falls on his knees instead of just folding himself in half when he meets the next Head of State, things will get better.

But hey. Somebody took a poll and 74% of the world loves us again! Even though we're doing basically the same thing we were doing on the world stage, except in the places where we don't hang tough and get walked over by Russia and Iran.

You're presenting a false dichotomy. I'd rather be hated for doing something worthy than loved for being a 'team player' on the wrong team.

Popularity ain't everything, especially when being popular means appeasing dictators who massacre their own people. Do you really want a President who cares if he's popular in Paraguay when that conflicts with US national interests?

If you REALLY wanted America to be popular on the world stage again, petition Hollywood to make a dozen good movies that don't portray America as the root of all evil. How many "we suck" Iraq war movies have flopped at the box office in the last 8 years? Six I think?

Our popular culture is a lot more powerful abroad than our President is.

@Janitor

Interesting link re: the Erie doctrine. So you're arguing that this is basically the most high-profile of a long string of cases already done the same way? Can you point me to some previous cases that tackle the same legal issues?

Aren't the rights to a jury trial, to face your accuser, to innocence until proven guilty, and to refuse self incrimination all Constitutional guarantees that these foreigners will be afforded in a Federal court? How does that square with your argument that they aren't being granted rights that should be reserved to US Citizens?

What's this I'm seeing? Substance! A debate with...

2009-11-17T21:14:41.163-05:00

What's this I'm seeing? Substance! A debate with substance!

Clearly, I can't possibly be watching television news....

@ Wave: don't give in to the dark side, my brother...

2009-11-17T20:26:51.642-05:00

@ Wave: don't give in to the dark side, my brother.

The political pundits on the Right would have you believe that taking the terrorists to trial for murder in federal court somehow equates to giving terrorists "Constitutional Rights."

This is a misrepresentation of the facts to say the least.

By making the terrorists stand trial in US courts the terrorists:
do not get the right to vote
do not get the right to free speech
do not get the right to bare arms
the list goes on...

All we're talking about is making them stand trial for their crimes the same way anybody would stand trial in our courts, whether they are a US citizen or an illegal immigrant. It doesn't matter who you are, there is ONE law in America; our law is consistent across the board. By saying we are "giving the terrorists rights," the FoxNews machine is attempting to exploit this fact for political gain.

As much as I hate to admit I kind of have to agree...

2009-11-17T19:55:09.469-05:00

As much as I hate to admit I kind of have to agree with Spool on this one. Since when terrorists captured on foreign soil get US Constitutional rights. The whole point of the jury trial seems to be a big show since everyone is already talking conviction and execution.

Wow those prison videos are crazy. Maybe we do really need a death penalty because these guys seem like their lost to humanity.

@ Spool: Note also that it's Federal court... no ...

2009-11-17T17:52:56.388-05:00

@ Spool:

Note also that it's Federal court... no state jurisdiction is in play here.

Actually, pursuant to the Erie Doctrine and all of its progeny (which I'll spare the readers of this blog) Federal Courts must use the State substantive law of the state in which they sit. So state jurisdiction actually does matter here.

Moreover, the State Law for Murder in New York specifically includes Terrorism among its list of acts that will get you Murder in the First Degree.

So, do you know what these 5 will actually be charged with?

Yes, the charges include 2,973 individual counts of murder - one for each person killed in the 9/11 attack.

@ Spool So, this means you'd much rather be hated...

2009-11-17T17:36:31.492-05:00

@ Spool

So, this means you'd much rather be hated and despised around the world, as we have been for much of the last decade. Right?

Uhh, would you venture to tell me exactly how that's BENEFITED the US?

@Janitor Interesting angle. Your argument turns o...

2009-11-17T17:28:21.110-05:00

@Janitor

Interesting angle. Your argument turns on what exactly we're charging these guys with... is it 3000+ counts of Capital Murder? Or is it a terrorism charge? That would seem to make a difference, as a terrorism charge IS an act of war committed against the USA where murder, even lots of them, doesn't rise to that level. Moreover, terrorism charges don't meet your 'requirement to stand trial' standard, though I think it's a good one and a legit argument if we're talking about murder charges.

Note also that it's Federal court... no state jurisdiction is in play here. So, do you know what these 5 will actually be charged with?

@AB:
Yes I can! It really depends on who is approving of us and why. Do 'they' like us better because we're being humble and apologetic, or we're getting our supposedly deserved comeuppance? Everybody likes seeing a winner get taken down a peg, because it makes them feel better about sucking. Are you saying you want to the USA to be less awesome so people don't look at their piece of crap spot on the globe and feel inferior?

Is that what the polls reflect?

Or is it just liking Obama? I really could give a damn how Black Jesus is polling in Greece.

Or do they like us more ecause we're trying to adopt policies they think are good even as the same policies annihilate their economies and kill their citizens?

Europe would like us even more if we stopped giving money to Colombia so that Hugo Chavez could dominate central America. Is that a good reason to do it?

There are all sorts of very legitimate scenarios where the 'approval of the world' isn't terribly desirable or very good for the USA. Nevermind the fact that a poll claiming to know the opinion of 74% of the world population any given question is inherently bullsh!t. What did they do, call five guys from each nation on the planet? I wonder how the Burmese dude voted? The guy in St. Kitts?

Please. It's just a political flag to wave, with no basis in reality.

@ AB - your argument is the bigger picture for sur...

2009-11-17T17:16:04.693-05:00

@ AB - your argument is the bigger picture for sure. Andrew Sullivan (who I don't always agree with) actually has a pretty well written summary of the same argument HERE.

Furthermore, who the hockeysticks cares what RUDY ...

2009-11-17T17:15:34.017-05:00

Furthermore, who the hockeysticks cares what RUDY thinks? Does anyone ask/care what George Bush currently thinks about Guantanamo? No. Bloomberg says it's ok, so it's ok. Moving right along...

Strangely, a GOP Congressman is playing "right wing fearmongering 101" and suggesting that Mike Bloomberg should be against this trial because his "daughter Could be ‘Kidnapped at School by a Terrorist’". What an a-hole!!!

http://chattahbox.com/us/2009/11/17/gop-rep-shadegg-ny-mayors-daughter-could-be-kidnapped-at-school-by-a-terrorist/

@ Spool Well, obviously it's not a "predetermined...

2009-11-17T17:09:07.866-05:00

@ Spool

Well, obviously it's not a "predetermined" verdict (sorry if I used that word) or there'd be no need for due process. But I seriously doubt Holder (and ex-Fed judge, and therefore more knowledgable of the law than all us combined) would risk a trial if there weren't sufficient evidence. Clearly, we aren't privy to all of this evidence, so it's a wee bit premature to assume what it might entail. But again, the Feds usually get their guy. This ain't Judge Joe Brown.

So, yes, trying a suspect, and having a jury of reasonable adults find him guilty BASED ON EVIDENCE PRESENTED sends a message to the world about our concept of fairness. Far more than waterboarding and military tribunals. I don't need to remind you where that approach got us.

When Obama gets shoes tossed at him, maybe I'll reconsider. For now, I'll put stock in the 74% favorable rating (double Bush's final number) of the US by other countries. Whether or not you think Obama is some apologist empty suit, you can't possibly tell me that having an improved image abroad is somehow a BAD thing.

Can you?

@ Spool I'll play. We'll skip down to point 3, w...

2009-11-17T17:03:02.530-05:00

@ Spool

I'll play.

We'll skip down to point 3, which encompasses 1 and 2: if 1 and 2, what is the real point of this trial? Certainly not 'justice', as we've tried over 100 other gitmo detainees through the tribunal system since Obama took office.

It appears you may have your facts wrong. In the 8 years since the U.S. established the military commission, we have convicted a grand total of THREE (3) terrorists. By comparison, do you know how many terrorists we've convicted in our Federal Courts? One Hundred Ninety-Five (195). And as AB pointed out, in the Southern District of New York, where the KSM trial will take place, they're batting 1000. Given those numbers, who the freak would seriously push for military tribunals as the way to go here??? That flies in the face of logic. Do you want to convict these cats or not?

foreigners who committed their crimes outside the USA aren't entitled to a federal jury trial. End of discussion.

With all due respect, that is blatantly FALSE.

First of all, it's not about being "entitled" to a federal trial, (as if being placed on trial for your life is some kind of reward people dream about). Who gives a damn what these people feel they are entitled to? It's not about entitlement, it's about being required to stand trial for crimes committed against the U.S in a U.S. court of law.

Military tribunals, by contrast, are traditionally used for captured enemy combatants who have allegedly violated the Articles of War. KSM doesn't fall into this category. He and his 4 amigos specifically killed citizens of the State of New York. This is not some foreign combat situation between our troops and the troops of some other nation; this was a crime perpetrated against the people of New York (and DC), and just like ANY crime perpetrated against the people of New York since New York came into the union, New York has the right to make the accused stand trial for those crimes in its own courts. This is somehow a brand new concept to political pundits in 2009? Would you or anybody else argue that New York has no right to bring people to justice who killed nearly 3,000 of its own citizens?

When changing the status quo, the burden of explanation rests on he who advocates change.
On this point, we agree. The charge here is MURDER. And as discussed above, there is absolutely no change to the status quo in bringing murderers to trial in a state where they murdered the citizens of that state. This is a well established principle of American law as old as the country itself.

So to answer your question:
what is the real point of this trial? Certainly not 'justice'

Damn right it is!

So we do a little kabuki show to convince the worl...

2009-11-17T17:03:00.038-05:00

So we do a little kabuki show to convince the world that the bad old days of waterboarding are behind us now, and in the Age of Obama we give people a proper fair trial before we reach the predetermined verdict.

That's supposed to help our image?

lololol! Which nation we care about is going to say "Well hey, they used to be bad but now they have trials and everything again!"?

Basically you're saying we're doing the wrong kind of fakery now, and so we need to go back to lying in internationally acceptable ways again.

Note: we're not talking about all the gitmo detainees here.. we're talking specifically about the 5 guys responsible for 9/11. Arguments about fair trials for the other people are beside the point here...

Do you really think these five guys are innocent?

@ Spool Here's a VERY SENSIBLE explanation of why...

2009-11-17T15:32:03.558-05:00

@ Spool

Here's a VERY SENSIBLE explanation of why a fair trial is necessary. Did you ever for once consider the possibility that innocent people were indeed rounded up?

30 such prisoners have been tried (and released) to date.

http://trueslant.com/rickungar/2009/11/15/30-gitmo-detainees-freed-by-u-s-district-court/

A much as it might pain me to say this, reality is, if these guys are innocent, and there isn't ample evidence to convict, send them home. In many of the cases of those tried and released, this is precisely what happened.

Then again, if you think the US is on its own planet, feel free to disregard all of this.

@ Spool It's very clear that this is a politicall...

2009-11-17T15:22:20.871-05:00

@ Spool

It's very clear that this is a politically calculated move to show THE REST OF THE WORLD, not just America, that we aren't BS'ing around. This guy will be given a "fair" trial, but yes, the final result is very much decided already. However, considering how badly our image worldwide took a battering with waterboarding, Gitmo, forced admissions of guilt and whatnot, it's little more than a show of good faith to everyone else that we are playing by the rules.

Like it or not, the US doesn't exist on a planet of its own. The cooperation of trust of other countries is essential, and this trial is merely another link in the chain. You can like it or dislike it, and deliberate all day about whether these folks are entitled to a free trial (I think they are, many of them have been found not guilty and returned home) but it's going to happen.

Again, I think this is much ado about zilch.

Ha ha, I went a whole post and didn't mention the word "Bush" once. Nice, eh?

Further point. If any of you disagree with point 1...

2009-11-17T15:20:44.750-05:00

Further point. If any of you disagree with point 1 above, only one of two things can be true:

1a) you think some / all of them are innocent and they SHOULD walk. This is where I tell you to stop being a Truther and learn to think critically. Moron.

2) For whatever reason, you're OK with the possibility of a travesty of justice and an insult to the memories of tens of thousands of soldiers and civilians, one that could have been avoided with the status quo Tribunal. To what end would you come to hold this opinion? The mind boggles.

@poopyman: Foreign terrorists don't get US Constit...

2009-11-17T15:16:23.462-05:00

@poopyman:
Foreign terrorists don't get US Constitutional rights.

I find it absolutely incredible how often liberals think that everyone in the world is entitled to protections granted by the US Constitution.

@marbles:
The left is engaging in a false argument to support the idea. Follow me along here:

1) There's no way these guys will walk. Obama would never risk it. No matter what happens at this trial, the defendants are getting convicted. Agreed?

2) If there's no way the guys will walk, what's the point of a trial? We already established that the outcome is predetermined.

3) if 1 and 2, what is the real point of this trial? Certainly not 'justice', as we've tried over 100 other gitmo detainees through the tribunal system since Obama took office. Did none of them get 'justice'?

4) The question shouldn't be 'why not do it?'. The answers are blatantly obvious... foreigners who committed their crimes outside the USA aren't entitled to a federal jury trial. End of discussion. The question is 'why do it?'. When changing the status quo, the burden of explanation rests on he who advocates change. I don't have to make ANY argument for why we should use the status quo Tribunal system... you have to make an argument explaining why we shouldn't.

Given 1 and 2 above, the answer is very unclear to me.

@Poppyman Where in the NYC area will you find an i...

2009-11-17T09:39:20.039-05:00

@Poppyman
Where in the NYC area will you find an impartial jury?

@ Daedalus: Uh...yeah. What the Janitor said. W...

2009-11-16T20:47:30.441-05:00

@ Daedalus:

Uh...yeah. What the Janitor said. Who mentioned Obama?

(The "Baraquis"...? Well, that's somewhat better than "B-A-R-A-C-K Do you know what THAT means?")

And who mentioned racism? (!?!)

At least use the right straw man at the right time! XD

I think I agree with everyone about the trials, bu...

2009-11-16T18:37:27.009-05:00

I think I agree with everyone about the trials, but I'm am sitting here thinking about showing these videos to some mentees. The fact that both of these cats are just upfront and honest about how it goes down. Sad. Kinda funny, bt I'm glad I'm doing right.

Plus I don't want all of those prisoners here in Illinois. Who decided to put them here?

OK I gotta jump in here and say that the tossed sa...

2009-11-16T18:30:34.385-05:00

OK I gotta jump in here and say that the tossed salad man is dead wrong. All gay men DO NOT do that. In fact, in my experience, the overwhelming majority do not do it. Maybe that's true in prison, but not out here.

Everything The Janitor said, plus: "In all crimin...

2009-11-16T17:44:08.661-05:00

Everything The Janitor said, plus:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

- Sixth Amendment to the US Constitution. Let's start to follow it again, shall we?