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Wednesday, June 18, 2008

Usama Bin Laden in Federal Court?

That was the basic jist of a very provocative question from Bill Sammon of the Washington Examiner. Here is how John Kerry replied.

Let me answer that on several levels. This is John Kerry. First of all the Supreme Court of the United States has ruled that they have those rights. This is not Barack Obama. This is the Supreme Court of the United States. If John McCain were president, he would have to give them those rights. This is a phony argument. And it is typical of what the Republican playbook is, which is say anything no matter what the other side has said. Just say it. And enough people may believe it unless you folks write the truth and write it boldly and clearly.

This maybe the basic debate in the aftermath of the ruling by the Supreme Court that allows detainees at GITMO to get hearings in U.S. Federal Courts. If you think this is far fetched, keep in mind former Al Qaeda number three, Khalid Sheikh Muhammad, is now in GITMO and may very well use this ruling himself to have his own case heard in U.S. federal court.

In the aftermath of this ruling, Barack Obama and his surrogates have indicated a philosophy that treats the GWOT as a criminal matter rather than a matter of war. Here is how Obama recently responded.

And, you know, let's take the example of Guantanamo," Obama said. "What we know is that, in previous terrorist attacks - for example, the first attack against the World Trade Center - we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

"And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims....

"We could have done the exact same thing, but done it in a way that was consistent with our laws," Obama said.

Let's leave an argument about whether or not what Bush is doing is in fact consistent with our laws for a minute. When the World Trade Center was first bombed, President Clinton turned the matter over to the Federal Prosecutor in New York's norther district, where the bombing took place. The investigation was handed to the FBI. In other words, Clinton treated the first bombing as a matter of criminal prosecution.

When the World Trade Center was bombed on September 11th, 2001, President Bush treated it as an act of war. He didn't merely hand it over to prosecutors and have the FBI investigate it. He used the full power of the military to go after the perpetrators, all the perpetrators, and he didn't merely go after them within our borders.

Furthermore, Barack Obama's statement is simply factually inaccurate. For instance, Ramzi Yousef fled the U.S. and eventually wound up in Iraq. He continues to remain at large. Furthermore, this operation was financed by Al Qaeda and thus Usama Bin Laden was ultimately responsible. He was never even charged. By narrowing the scope to those perpetrators that actually came to America to perpetrate the deed, the Clinton administration only punished a narrow group of folks for the act.

This is the mindset that Barack Obama wants to go back to. Furthermore, Obama has made another error of historical fact in placing this decision in context.

that principle of habeas corpus, that a state can’t just hold you for any
reason without charging you and without giving you any kind of due process —
that’s the essence of who we are. I mean, you remember during the Nuremberg
trials, part of what made us different was even after these Nazis had performed
atrocities that no one had ever seen before, we still gave them a day in court
and that taught the entire world about who we are but also the basic principles
of rule of law. Now the Supreme Court upheld that principle yesterday

There are two major fallacies with this statement. The Nazis were tried only after a formal treaty was reached ending the war with all of the Axis powers surrendering to the Allies. Furthermore, Nuremburg was an international criminal court. The Nazis weren't given access to U.S. courts. Al Qaeda has not surrendered, and in fact, they continue to be motivated to attack again. While the MSM has not done much with all of these multiple errors of fact and logic, they are the nexis of what the McCain should make as the centerpiece of a debate on GWOT philosophy.

Now, Obama and his surrogates have used the same attack on this that they will on everything. They will attack Bush...

These are the same guys who helped to engineer the distraction of the Iraq war at a time when we could have pinned down the people who actually committed 9/11."


This is the same kind of fearmongering that got us into Iraq. It's exactly that failed foreign policy I want to reverse.

Of course, this is a silly argument. We haven't been attacked since 9/11. In fact, since 2004, attacks on American interests outside of Afghanistan and Iraq have been nearly nonexistent. Calling these policies simply belies the facts.

Frankly, I was under the impression that this debate had ended. I thought that it had been established that the country has seen that treating this as a criminal matter is the wrong way to go. Yet, that appears to be the debate that Barack Obama wants to have again. If he does, that should be a debate that McCain should welcome.

The problem with treating this as a criminal matter is that it opens up a pandora's box. If habeas corpus is sacrosanct, and thus, it should be given to anyone in U.S. custody anywhere in the world, then where does it stop? Isn't the right to a lawyer also sacrosanct? Isn't the right to Miranda sacrosanct? Isn't the right to remain silent sacrosanct? Wouldn't this limit the manner in which we can interrogate captured terrorists?

I continue to believe that the fallacy of this ruling is that it treats terrrorists like criminals rather than enemy combatants in a war. Habeas corpus is NOT a privilege we have ever given to the enemy during war. None of the rights extended to criminal suspects have ever been extended to the enemy during war. If Barack Obama believe we must extend the right of habeas corpus then the natural next question is what other rights should terrorists get.

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