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Go Home Eric Holder, Pathetic … And His Pathos Is Right There On...

THE SPINE FEBRUARY 15, 2010

Eric Holder, Pathetic … And His Pathos Is Right There On The Front Page Of The Times.

BY MARTIN PERETZ

Poor Eric Holder. The fact is that he is none too smart ... and none too versed in constitutional issues. Although Ronald Reagan did appoint him Judge of the Superior Court of the District of Columbia! Ah, those were the days when Republican presidents appointed Democrats to judicial office and Democratic presidents appointed Republicans to same. Actually, aside from his graduation from Stuyvesant High School in New York City, "second rate" is what comes to mind when you hear Holder's name.

Hey, Janet Reno wasn't so brainy either.

Holder's mental equipment matters now more than ever. After all, he is attorney general in an administration that faces so many constitutional conundrums, meshed with issues of national security, that it invites comparison to the presidency of Abraham Lincoln. And Lincoln didn't do so well either.

What's especially strange is the fervency with which Holder has been defending positions that necessity and Rahm Emanuel's political calibrations have mostly forced him to surrender.

John B. Bellinger III, the former legal adviser to the State Department during Bush’s second term, has written an op-ed for the New York Times that almost praises Obama's forced nimbleness in resorting to policies of the previous administration when his own policies have gone down in, well, tatters: Guantanamo, prolonged detentions, military tribunals, international law and international jurisdictions. Politically most telling is the nearly certain reversal of the projected Foley Square trial of Khalid Sheikh Mohammed, although Holder is still blowing hot and cold on this. Having made such a fuss about Mohammed's rights to civil jurisdiction, it must be especially painful to have off the pulpit into the real world. Pragmatism is a welcome change from ideological dogmatism and preening.

Whatever embarrassment these jumbles have caused the attorney general (and his boss), the true shame must have come from a sharply drawn article by Jodi Kantor and Charlie Savage in today's Times. It is called "Getting the Message: After 9/11 Trial Plan, Holder Hones Political Ear." The headline is very soft. The article is very stiff.

As it happens Holder apparently still does not grasp what has happened to him. "I have to do a better job," Holder whines, "in explaining the decisions that I have made." Since Obama has already withdrawn his support for many of these decisions--and the Congressional Democrats, as well--Holder might just think about taking a long holiday in Barbados, where he is slated to be honored as the first of the “100 Great Barbadians.”

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62 comments

Every once in a while Marty goes a spell without saying anything too offensive and I forget what an utter jerk he is. BTW Marty, I missed your take on the Andrew Sullivan controversy. As Dan Rather would say, "Courage!"

- Lymon1

February 15, 2010 at 5:20pm

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Marty, are you aware that we also have a war of ideas going on? If you are, do you have any clue as to what is needed to even show up to the conflict? The objective should be to get KSM executed AND have that execution received in our target populations the way the executions of Hans Frank and Hideki Tojo were received in their day. Trial by military commission will just about guarantee that anyone not already convinced that KSM deserves to die will be convinced by the trial, or, as our target audience would put it, the "trial." As for your preference for military commission, what is your basis for concluding that it is even a forum more likely to convict and hand down a death sentence? The only difference between civilian court and military commissions that points in that direction is the looser rules for evidence. If you insist on operating with those rules, you are essentially to those who claim that we are just killing Muslims who offend us that they are right, in other words you are surrendering in the war of ideas. On the other hand, civilian prosecutors are actually experienced in prosecuting terrorists, experience that can overcome the evidence that the civilian forum would disallow. As for holding the trial at Foley Square, what are the actual security reasons for moving it and do they outweigh the security features that the Foley Square courthouse has for such trials? What do people who are actually competent at evaluating security issues and who don't have political constituencies say about conducting the trial in Foley Square? Ray Kelly counts on the first, given the hysteria filling his constituents' minds does not on the second. It should also be noted that all the local officials signed off on holding the trial at Foley Square. That is before all the pundits who have absolutely zero credentials on security affairs, and politicians with agendas other than maintaining public safety, started whipping up the masses with scare stories about what holding the trial in Manhattan would mean. For more information, listen to http://www.npr.org/templates/story/story.php?storyId=123493667 or read http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer Suggestion, when someone argues for something and invokes security as a reason for his position, ask "does this person have an ulterior agenda?" If so, do not necessarily reject their conclusions, but seek out reasonably credentialed security experts who do not have such agendas. If their lines of reasoning reasonably line up, even if their conclusion diverge, the conclusions can be considered valid. However, if the neutral expert's line of reasoning goes completely against the former's, the former's reasoning and conclusions should be dismissed.

- sighthnd

February 15, 2010 at 9:23pm

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I suppose it is just too much to expect from this man that someone can take a principled - and defensible - stance, that just happens to be at odds with what the grudgeholder believes, and that does not warrant baseless accusations of "pathetic" and "2nd rate". peretz always goes after those who have the temerity to oppose His Word but there is something of the Sharpton, Annan, & Jackson flavor to the recent posts about Holder. I'm just sayin...

- MrCookie1

February 15, 2010 at 11:30pm

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sighthnd: I’m not sure what you are arguing from your post—it’s fairly oblique—but I could make some guesses. You ask a lot of questions. Let me reciprocate. What war of ideas are you referring to? And if you mean one that I think you mean—some kind of clash of civilizations—do you really think Peretz is less aware of, less sensitive about, less engaged in that conflict than are you? Do you really think that because you imagine Peretz rejects what I make a leap of faith is your argument for civil trials, he somehow hasn’t the “clue” you seem to think you have? In fact Peretz has in the recent past said he doesn’t really care which trying jurisdiction hosts the KSM trial. And if you read his post carefully you will see that that is not an issue he takes up as such. Rather, more than anything, he takes his Holder to great task for what he says are Holder’s series of egregious political errors. What are you saying in your second paragraph? It’s pretty incomprehensible to me. What “target audience/populations” are you referring to? Whose objective is it to get KSM convicted and executed? Shouldn’t an important objective be ensuring that he gets a due and appropriate hearing and that he be seen to be getting one by Americans first and then by others too? Isn’t that objective tainted by members of the administration before the fact pronouncing on the certainty of his conviction and execution while at the same time arguing that civil trials for KSM will show case American justice? (BTW, the last sentence in your second paragraph makes no sense at all to me.) Getting to your third paragraph, I can’t put it together with what I thought you were saying about the “war of ideas” and I can’t put that latter notion together with your vaunting of the objective of getting KSM executed and that execution properly received. You have in your post these notions swirling around and blindly bumping into each other. And are you seriously saying that the military commissions’ (that got redrawn after SCOTUS said they needed to be, that your Congress passed and that Obama affirmed and said he would try some enemy combatants before) rules of evidence, which I understand allow for some hearsay, are tantamount to losing the “war of ideas”? How can the wider latitude under these rules of evidence come to mean surrendering to those who say Americans simply kill Muslims who offend them? (This part of your post is virtually indecipherable.) If I understand what you are saying, then it follows that for you Obama is as guilty and clueless as is Peretz when it comes to the “war of ideas” since, as I noted, Obama has stamped the commissions kosher, has committed to trying some Gitmo detainees before them and since under his aegis Holder is now open to the possibility of trying KSM before by way of them. I’d say that’s quite a high horse you have been shot down from. The primary reasons for trying enemy combatants before the commissions and not by civil courts is that it is inapposite to give them all the constitutional protections American get, to assimilate their actions to a criminal justice model rather than a law of war model. They should get the hearings that befit their status. The failure to understand that reflects a failure to understand fully enough that America is at war (of more than ideas, but those too) with Islamic Jihad.

- basman

February 15, 2010 at 11:39pm

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lymon 1 are you saying that Peretz not weighing in on the argument between Sullivan and Wieseltier betokens a lack of "Ratherian courage"? If so, what is your warrant for that conclusion? There may be a million and one reasons for him not to involve himself and you don't, I imagine, know any of them. So how does it come to you to accuse him of cowardice on this score?

- basman

February 15, 2010 at 11:47pm

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Basman -- if there ever was a pundit who takes note of any whiff of unfairness towards Israel (let alone anything "something much darker") by any public figure in the news or news media, it is Marty Peretz. So yeah, it's quite hypocritical for Marty to turn his withering laser on, say, Nick Kristof when he rights an occasional, standard lefty piece on Israel, but not utter a single word about Sullivan, especially given their shout-outs over the years. That he can write crude attacks like this one on Holder, which he does regularly, just heaps onto the pile of non-objectivity.

- Lymon1

February 16, 2010 at 6:06am

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Holder is pathetic, no doubt. What does this say about our President?

- tatertot

February 16, 2010 at 7:37am

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It's not KSM's right to a fair trial that is in question here. It is my right as the victim of KSM's serial attacks on all Americans to see him brought to justice and executed in accordance with the laws he has violated. Marty seems devoted to denying Americans our legal vengeance; in this he sides with the jihadists, who also have contempt for the civil law of the United States and who wish to be recognized as soldiers rather than criminals. KSM is not an enemy general; he was not captured on the battlefield or by American soldiers; his crime was not military in nature. His case demands civil justice, and execution by civil authority. If a change of venue is required to a part of the country where cowards like Marty are fewer in number, fine, and on that score I'm willing to give Holder low marks for assuming that New Yorkers had the guts to stand up to al-Qaeda. Given the relatively widespread nature of Marty's cowering in the face of captured terrorists, another knock against Holder may be a lack of imagination. In order to do the justice he has sworn to, he may need to create a system whereby trials can be conducted on-site at a maximum-security prison, so that the terrorists can be housed, tried, and either jailed or executed at a single secure facility. That need should probably have been obvious to anyone who heard the cowardly quavering of Krauthammer, Marty, and basically every elected Republican in the country (and a shameful minority of Democrats as well). And it could probably be done by executive authority alone, and so Holder bears full responsibility for the failure to find an appropriate solution to the problem of Marty's - and America's - spinelessness.

- rhubarbs

February 16, 2010 at 8:34am

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"Holder is pathetic, no doubt. What does this say about our President?" It says our President is strong enough to have an independent-minded attorney general and Justice Department. The political tone-deafness of Eric Holder should, at least, be applauded even if one disagrees with some of his decisions. Would you prefer a puppet like, say, Alberto Gonzalez?

- scrubby

February 16, 2010 at 8:41am

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Yo, Itzik.

- scrubby

February 16, 2010 at 8:46am

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basman: What war of ideas are you referring to? And if you mean one that I think you mean—some kind of clash of civilizations ... No it is not a war pitting us against another civilization, it is war in which we are competing for the allegiances of varying degrees of that other civilization. From Morocco to Pakistan, al Qaeda is pushing a narrative that the West is at war against Islam with the objective of keeping Muslims as a subjugated people. Their success at peddling that narrative will determine how much money flows into AQ's coffers and how many recruit AQ gets to its camps. It does not affect what level of training AQ can provide to those recruits which is more a function of the territory the AQ controls allowing it to maintain effective training programs, hence the value of the conventional war as well. When I complain about lack of awareness of the war of ideas, I mean the indifference to whether our actions work for or against promoting AQ's narrative. Sometimes actions will be necessary that bolster that narrative, however, this is one case in doing so provides no advantage in restricting AQ's ability to mount an attack or build its forces. basman: Rather, more than anything, he takes his Holder to great task for what he says are Holder’s series of egregious political errors. A political error says nothing about whether an action is superior or inferior in the war on terror. basman: What are you saying in your second paragraph? It’s pretty incomprehensible to me. What “target audience/populations” are you referring to? The target audience is anyone who might be persuaded to send a substantial donation to AQ or give it to a secular school for Muslims instead/join the jihad or find some other way to help downtrodden Muslims. basman: Whose objective is it to get KSM convicted and executed? The DOJ clearly wants to secure the death penalty for KSM. Note the talk of the legal requirement to hold the trial in a state connected to the crime in order do so. Is there anyone opposed to the trial being in civilian as opposed to military court who does not share that objective? basman: Shouldn’t an important objective be ensuring that he gets a due and appropriate hearing and that he be seen to be getting one by Americans first and then by others too? Americans should look for the results of the trial and results in the battlefield of ideas. basman: BTW, the last sentence in your second paragraph makes no sense at all to me.) I'll grant that it is a bit unclear, not helped by some grammatical errors. The point is that from the standpoint of the war of ideas, one function of showcasing our justice system is to persuade those who believe that the US is right to be aggrieved by 9/11 but consider at least some of our actions done in the name of 9/11 to be nothing more than seeking scapegoats for the event, that KSM is a rightful target of our retribution. Doing so will require a transparent process, subject to as little security redaction as necessary, and reliance only on evidence which one would have to be willfully blind to not see. My use of scare quotes around "trial" was to indicate that someone on the streets of Sana or Lahore would view anything less as a kangaroo court. basman: And are you seriously saying that the military commissions’ ... are tantamount to losing the “war of ideas”? Per se no. However, saying that we can't convict KSM without relaxing our rules of evidence is saying, at least to the residents of Sana and Lahore, we want a kangaroo court just to get our desired outcome. That is surrendering in the war of ideas. Yes, SCOTUS has set limits on how much those rules can be relaxed, but that won't convince anyone who isn't already on our side. basman: The primary reasons for trying enemy combatants before the commissions and not by civil courts is that it is inapposite to give them .... They should get the hearings that befit their status. By your reasoning, the appropriate death sentence at Nurenburg and Tokyo should have been a firing squad. These are not people who fight honorably on the battlefield against opposing forces and should not be glorified as soldiers. Further, trying the high-profile figures in military court does absolutely nothing to help in the battlefields of AfPak and Yemen, but it does bolster AQ's narrative.

- sighthnd

February 16, 2010 at 11:29am

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And the reasons for trying terrorists in federal court include the following: a) the federal court is traditionally the place for trying terrorism cases; b) the Al Qaeda guys are not soldiers engaged in war but civilians engaged in violent acts and should indeed get the hearings that befit their status; c) prosescuting them in federal court is one way of underlining both the criminal nature of their acts and the capacity of the U.S. to face down AQ within our constitutional framework.

- ironyroad

February 16, 2010 at 11:53am

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Malahat, the main problem with relying on the Quirin case as precedent to try Al-Qaeda leaders is that the case dealt with saboteurs sent to the US by Nazi Germany, a nation with which the United States was in a state of declared war. In that case, the Supreme Court was making the unexceptional distinction between uniformed Nazi German soldiers, sailors and airmen who could be taken prisoner and treated as POW's under the laws of war and spies and saboteurs who were posing as civilians while engaged in military acts against the US. Unlike Nazi Germany, there is no Al-Qaeda state that is recognized as such by the US or any other country; there are no uniformed Al-Qaeda personnel with whom the US can be engaged in combat to the distinction of Al-Qaeda saboteurs who wage violence dressed as civilians. Thus, notwithstanding the "declaration of war" declared by Bin Laden against the US in 1996 (which is basically what any group of foreign malcontents is free to do at any time), all Al-Qaeda members are basically saboteurs without a state. Which is the same thing as international criminals, like drug or arms traffickers or members of other terrorist gangs like Abu Nidal, the Tamil Tigers, the Shining Path or FARC, none of whom have been given the privilege of status as "unlawful combatants" by the US.

- wildboy

February 16, 2010 at 12:33pm

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I don't understand how we can hold a fair trial for this man anywhere. What untainted evidence against him can be brought to a jury? The whole world knows we have tortured the guy, and just about every other person in our custody -- so who is going to believe that any evidence used to convict KSM is not the product of illegal interrogations? What is the point to a trial when the rule of law has been flagrantly flouted by the state? If we want to execute the man, let it be done without the pretense of legal proceedings. Let the Tea Party gang have at him in a football stadium, preferably in Texas or perhaps in Dick Cheney's favorite undisclosed location. Maybe John Yoo would be willing to remove KSM's head with a sword on the Tonight Show. We do not deserve the faux dignity and sham ritual of a trial, to elevate this drama in the final act would be ridiculous and profoundly cynical. Would it make anyone feel better about America to hold civilian trials of people we have tortured? Wouldn't even the most minimally informed and sensitive among us recognize the farce, and turn away? What harm has not already been done to the American traditions of justice and rule of law by 7 years of illegal detention, rendition, and torture will be completed with the charade of a trial. It is incomprehensible to me how anyone can think that a trial now will have any legitimacy in light of all we have learned about the operation of American justice under Bush and Cheney, and their fellow war criminals, whose actions will never be weighed in any American courtroom. It is all shameful, and the trial will just make it even more so. If we must have a circus, let it be in a tent and not in a courtroom. Neil

- purcellneil

February 16, 2010 at 1:21pm

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purcellneil: Any evidence gathered before KSM was captured, such as the news dispatch to Al Jazeera, would be untainted.

- sighthnd

February 16, 2010 at 2:09pm

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hey neil, good to read yah. To be honest, I actually would love to see that circus and would enjoy watching KSM be ripped to shreds by an angry mob, so I gotta tell you, be careful what you (sarcastically) wish for. If you were to offer the American people your circus, then they would probably take it, and then where would we all be?

- blackton

February 16, 2010 at 2:46pm

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Hey Scrubs and a yo to you too. Where ya' been?

- basman

February 16, 2010 at 3:25pm

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I dunno Lymon 1. That Peretz is staunchly, to his very core, pro Israel, I grant you. Good on him for that. She can use a few unbridled champions who know whereof they speak. And if he goes overboard at times, as he surely does, he should be called on it when he does, as he is on this site and witheringly so. For myself, for these particular warts, I’m not trading him in. But your reasoning is getting more difficult to understand with your second post. Because he attacks Kristoff, which he does supplying reasons you can agree or disagree with—the pieces I read that Peretz took up here led me to agree with Peretz’s criticism—how can it conceivably follow that he should be called a coward for not going after Andrew Sullivan? Surely it’s not within his job description that he needs to go after every single Israel basher that he has had an association with. Same flaw attends your argument from the example of Holder. Stipulating for the sake of argument that it was the crude attack you say it was—I think in fact it was a substantive post marred by too much needless, ludicrous really, name calling—that I say becomes no premise from which it inexorably follows that he must take a whack at Sullivan, let alone it being *cowardly* for him not too.

- basman

February 16, 2010 at 3:41pm

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"[C]ouldn't Al Qaeda be considered to be merely using 'civilian' as a putative legal flag of convenience, when in essence, they are members of a military organization? Do they really consider themselves as civilians?" I don't think they do, malahat, they regard themselves in fact as soldiers in an Islamic warrior tradition. This would be equivalent to an insurgent army in a country building itself a status by way of using military ranks, minimal uniform standards, and the like. I think we have to make a distinction between someone captured on or near a battlefield -- for whom the enemy combatant status might well apply -- and someone taken into custody far from any military engagement (e.g. with a hidden bomb on an Amsterdam-Detroil airliner) who is observed in a clearly criminal act in civilian circumstances. We have tried both Richard Reid and Moussawi in federal court. Should we really have given them the cachet of being considered part of "a military organization," in your words?

- ironyroad

February 16, 2010 at 4:20pm

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Malahat, if a group could be classified as "unlawful combatants" solely on the basis of a militaristic structure or a belief that they are engaged in combat against US authorities, then all sorts of groups would be subject to military detention and trial -- organized crime and drug gangs (which, of course, have hierarchical structures), citizen "militia" groups hoarding guns, millinarian religious cults that detain their members against their will, etc. But the Quirin decision doesn't apply to any of them -- it applies to members of the military or intelligence service of an acknowledged foreign nation-state (Nazi Germany) who attempt to wage war disguised as civilians. On that basis, the holding doesn't really provide a clear guide for how to deal with Al-Qaeda, which is a stateless gang of radicals bent on terrorism and the overthrow of existing legitimate governments. If Al-Qaeda's assaults were undertaken on behalf of an existing state (e.g., a Taliban-ruled Afghanistan) then the Quirin case would be more apt. But they were simply assaults on Americans by a stateless criminal gang, which is why in my opinion members of Al Qaeda who are captured and brought into US custody on the charge of committing crimes against the US should be treated as criminals. Until there is an Al Qaeda "state" whose violent acts against American military personnel could legitimately be construed as "war" under US and international law, Al Qaeda members should remain criminals in the eye of US law.

- wildboy

February 16, 2010 at 4:21pm

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Rhubarbs, your reasoning on this occasion is from hunger. You start with a false choice between KSM’s right to procedural dueness, which he has, and the more attenuated notion of your (Americans’) *right* to see him brought to justice and executed according to law. These are not exclusive and in fact they are two sides of a just coin. Unless KSM is accorded a lawful hearing, passing constitutional muster, your demand for justice in his conviction and execution will not be vindicated. I cannot follow your strange argument that Peretz is siding with the Jihadists by, let’s agree for the sake of argument, wanting a military commission to deal with him rather than a civil criminal court. (I actually read him to be indifferent as between the two.) How does wanting a military commission, which all three branches of your government have marked kosher and which Obama has affirmed and said he will use and is now considering using for KSM, equate to: 1. denying vengeance—which is, granted, a policy goal underlying sentencing; 2. despising your system of civil justice; and 3. most bizarrely, siding with the jihadists? There has been argument on these points before but to repeat even Goldsmith and Comey who have been cited on this site on this subject-- http://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html--and argued for a civilian trial said: … Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs…. So you are flat wrong in your assertion, be it legal or just plain saying or confusingly some of both, that KSM “is not an enemy general”—whatever you mean by “general” I’m not sure. His case doesn’t demand civil justice, just because you say so. Your concern that he gets glorified as a soldier by military processing when he is just terrorist scum is a factor some may take into account in assessing the strengths and weaknesses of where to try him—the weighing approach Goldsmith and Comey argue for—but really this factor ranges from being of mild interest to entirely irrelevant in any serious consideration of these matters. Hardly the dispositive, coup de grace argument you want to make it out to be. From your entirely misconceived premises you wind up with the weird notion that Peretz is cowering before terrorists if he favors military commissions. Do you feel a warm surge of bravado in spouting such nonsense so glibly? An irony is that your declamation is based on such an analytically impoverished foundation.

- basman

February 16, 2010 at 4:23pm

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Sighthnd I appreciate your comprehensive response. I’ll only respond to what I take to be its pith. I’ll stipulate to what you said in your first post that essential difference between the commissions and a criminal trial is greater latitude in the former’s reception of evidence. From that stipulated difference, it does not follow, and in any event it is not the case, that the former are kangaroo courts. The perception of kangaroo courts has a better chance of emerging from Obama and Holder assuring America and the world, in arguing for criminal trials, that “conviction and execution are foregone conclusions and we’ll arrest him again in a nano second if they are ever acquitted.” I paraphrase of course. But what I find most disconnected in argument is that idea that a certain amount of relative laxity in commissions’ rules of evidence, but which don’t impugn their constitutionality, means big talking points for the al Qaeda narrative. I suggest to you that the difference in the rules of evidence or the differences in the legal fora means fuck all to that narrative will do quite nicely regardless.

- basman

February 16, 2010 at 4:39pm

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Irony, I don’t agree with your ironic presentation of the arguments pro and con. If you don’t start from the premise that America is at war with Islamic Jihad, and that KSM et al are not enemy combatants (see Goldsmith and Comey)—as well as technically being criminals—then nothing I can say at this point will convince you otherwise and we will have to agree to disagree. We’ve trod down this unironic road once before and before I wearied of it. But your assignment for tomorrow is to review our exchange, take two aspirins and call me in the morning.

- basman

February 16, 2010 at 4:46pm

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wildboy, malahat: I'm a lawyer but what I know about american law on these matters could fit inside a small thimble. But isn't this dispositive as to the lawfulness of the military commissions, and trying KSM before them, Quirin notwithstanding: '...Any alien unlawful enemy combatant is subject to trial by military commission under chapter 47A — Military Commissions (of the Military Commissions Act of 2006 (10 U.S.C. 948a (Section 1, Subchapter I))). The definition of unlawful and lawful enemy combatant is given in Chapter 47A—Military commission: Subchapter I--General provisions: Sec. 948a. Definitions "The term 'unlawful enemy combatant' means — (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." ... "The term 'lawful enemy combatant' means a person who is — (A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States." The Act also defines an alien as "a person who is not a citizen of the United States", and a co-belligerent to mean "any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy."

- basman

February 16, 2010 at 5:12pm

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True, Basman, all true -- the Military Commissions Act is a legitimate procedure set up by Congress to regulate the military trials of Al Qaeda members. There is also a legitimate question as to whether KSM could be tried by such a court, as he was captured in 2003 and the military commissions that existed at that time had been formed by executive order rather than an act of Congress. So the Quirin case, today, is something of a theoretical issue regarding how to try terrorists for their crimes. But recall that the Military Commissions Act was passed only after a series of legal reversals put into question the basis for the then-existing military commissions, which had been created on the basis of the Quirin decision. Of course, the Military Commissions Act doesn't mandate that Al Qaeda suspects be tried by military commissions -- it only leaves that open as an option. The debate, as you well know, is between those who think that civilian courts are the most appropriate venue and those who think military commissions are. Marty's view is the latter, mine is generally speaking the former -- especially for people like KSM, who was arrested in a hideout far from any battlefield, and for Abdulmutallab, who was arrested on board a US-bound airplane in the course of committing a terrorist act. A military commission would be more appropriate for someone like Mullah Baradar, who was captured while directing conventional Taliban military operations, or a Taliban leader captured in the field. Similar to Irony's view of the matter.

- wildboy

February 16, 2010 at 5:46pm

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Let's put our political/legal positions aside and consider the man's judgment. On his last tour of federal duty he advised his then client president there was no reason not to pardon Marc Rich. On this tour, he advised his now client president to make closing Guantanamo in one year flat one of the first acts of the new administration. Then he decided to try the mastermind of an attack that killed around 3,000 Americans in our largest city in civilian court right next to the scene of the crime. But not to worry! He --and his client-- assured us that the "accused" would never spend a day out of federal custody. Next, he decided to Mirandize the would-be Christmas bomber after a fifty minute interrogation, while the "accused" was heavily sedated, without consulting the rest of the national security apparatus. If necessary, keep on crapping on the fools who ran Bush's Justice Department, if that will help you recognize that that one set of fools has been replaced by an opposite set of fools. The Department of Justice is a serious institution. It should be insulated from ideologues and hacks. The Attorney General is supposed to protect his president. How many truly distinguished and generally admired Attorneys General have we had in the last four or five decades? I'll nominate Ed Levi (Ford administration). Anybody else?

- lsernoff

February 16, 2010 at 8:19pm

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"Then he decided to try the mastermind of an attack that killed around 3,000 Americans in our largest city in civilian court right next to the scene of the crime." A small point: around 3,000 individuals, most but by no means all of whom were Americans. But the thing that I find distinctly odd, lsernoff, is that we indeed appear to judge the AG's judgment very differently. Your comment above seems to almost peremptorily demand the response "How idiotic! That proves the man is incompetent!" whereas my response is, in fact, "Exactly! That is precisely where this m-f should be tried." I'm curious about the roots of our diverging perspectives here. basman: I'll be taking the aspirin for the damned tendonitis in my left foot aaaarrgh! but I'll chew on what you say.

- ironyroad

February 16, 2010 at 8:36pm

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blackton, I have no sympathy for KSM, and I have no doubt that my fellow Americans, despite their ongoing guilt and regret for Abu Ghraib, would gladly pay to watch him torn to bits by Michael Vick's dogs. I am proud of America, but not so much of Americans I have to say. Being proud of America, for me, is basically being proud of the Constitution and the rule of law, so the trial nonsense is a source of no small grief. If they go through with the trial, I hope it ends in a mistrial -- that is what it will be in any case. In my opinion, you shouldn't torture anyone, but if you do torture them, then you should have the decency not to try to prosecute them too. The world was appalled that we violated treaty obligations and the law so flagrantly in these acts of torture; now the world will hold its nose while we pretend to carry out the process of justice within the law, as if we were not tainted by our own crimes. Neil

- purcellneil

February 16, 2010 at 8:48pm

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Yeah, he has to do a better job "in explaining the decisions that I have made." Holder really screwed up on the KSM Decision. Holder stopped a Military Trial that was already in progress where KSM had admitted in open court that he had committed the attacks he was accused of and wanted a Death Penalty. I am pretty sure the Military Commision could have delivered Justice there. Now Holder is searching for a life line after he sank the ship. Here's the microphone Eric, explain to us how you made your decision. He's lucky he got the NYT Reported who was pitching the softballs. Maybe Oprah is open next week. Holder went out on his own and made a bad call. Two years later will he go back to a Military Commision and admit he made a mistake and cost the country two years? We'll see.

- CRS9TNR

February 16, 2010 at 9:00pm

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ironyroad: I think the "roots of our diverging perspectives" lie in diverging views of what has happened and who did it. The terrorists aren't criminals, within any familiar American legal definition. Not are they a "state" within any familiar American legal definition. They are something new in our experience: an organization (or organizations) which house themselves within failed states and whose ambitions are "state-like" in the most malignant sense: they seek to cripple or destroy real states. They aren't mafiosi; they aren't bolsheviki; they aren't Nazi saboteurs; they aren't even kamikazi. The issues they present are novel and they aren't easy. My problem with Holder is that he seems to think they are easy. Whatever the last administration did, always march in the opposite direction(except where the prior administration's early gropings with the issues appear to support you). That isn't judgment; it's ideology.

- lsernoff

February 16, 2010 at 10:15pm

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The issues are easy. Bush and company just made them far more complicated than necessary and Obama and Holder have done a piss poor job of sorting out the mess they inherited. Soldiers cannot be tried as criminals. Criminals cannot be tried by military courts. But we do have here a relatively new phenomenon, at least since much of the law of war was written down, unlawful combatants. What our law should provide is that, in the case of an unlawful combatant, the USG can elect to treat the person as either a criminal or a soldier, after a suitable status hearing that establishes the individual's status as an unlawful combatant. If the government elects to treat the person as a criminal, then normal criminal process must apply. If the government elects to treat the person as a soldier, then the the law of war applies, including the ability to detain indefinitely as a POW, provided the person is treated as such under the Geneva Conventions, and the right to try the person as a war criminal in a case in which those laws of war apply. I would not think that an Afghan combatant in Afghanistan who is guilty of killing our soldiers would qualify as a war criminal under any normal interpretation, particularly since we invaded their country. Soldiers are in the business of trying to kill each other. They don't become war criminals by doing the one thing they are supposed to do which is kill the soldiers of the other side. We seem to have forgotten that the Geneva Conventions were written largely by our own government with, among other things, the protection of the status of our own soldiers in mind. Under the Bush abuse of war crimes definitions, the Viet Cong would have been war criminals for resisting the foreign invasion of their own country. There should be no trouble under normal interpretations of law in treating SKM as either a criminal or a war criminal. I would opt for the latter which would make trial by military tribunal appropriate and put SKM where he belongs in history -- in the company of those tried at Nuremburg. I have never heard it said that the Nuremburg tribunals were a kangaroo court, but they were also invested with great stature by the judges who served there and the scrupulous effort to accord a fair trial. We can do the same again, but we need a decent statute to sort out the status issue. Naturally, we couldn't get anything remotely sensible out of Bush and Cheney who were more focused on covering up and obtaining immunity for their own war crimes than anything else.

- roidubouloi

February 16, 2010 at 11:49pm

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Oops. KSM, not SKM. Damn those fingers!

- roidubouloi

February 16, 2010 at 11:51pm

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Roi, you aren't worthy to shine Bush or Cheney's shoes, you America hating little POS.

- bulbman1066

February 17, 2010 at 3:26am

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Stay classy, Mr. Peretz

- miceelf

February 17, 2010 at 9:32am

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Bulbman, coming from one such as you, I can think of no higher praise. If you thought anything else, I would begin to worry about myself. Thanks!

- roidubouloi

February 17, 2010 at 10:59am

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Perhaps I should have added, bulbman, that I wouldn't allow Bush or Cheney to lick the soles of my shoes let alone shine them. It would disgrace my shoes.

- roidubouloi

February 17, 2010 at 11:01am

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I have never heard it said that the Nuremburg tribunals were a kangaroo court Actually, roid, I have heard Conservatives make that claim as it violated German sovereignty, ie. trying people for crimes that we not illegal in their home country. Imagine if we arrested a Saudi for polygamy visiting America because he had many wives in Saudi Arabia. I don't agree with the Conservatives, the concept of international crimes against humanity is fine by me, but not the whack job conservatives. Not for them international courts of justice.

- blackton

February 17, 2010 at 12:28pm

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Could I add my soles to roids in the "No Licking by Bush or Cheney" group? Thanks. Incidentally, it was Winston Churchill who thought the Nuremberg Trials a waste of time and that the Nazi leaders should just be taken out back and shot. It was the U.S. that wanted a formal process at law that the world could observe. Those damned Americans and their principles!

- ironyroad

February 17, 2010 at 12:35pm

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Well, blackton, I am not surprised, although I recall that anything for which the Nazis were tried was also a crime under German law as written. The only justice that Conservatives approve of is the kind that comes out of the barrel of a gun. They are authoritarians, at best. They don't really believe in law (domestic or international), courts, formal justice, or civil liberties. They believe in power. I suspect that the Conservatives who were offended by the Nuremberg trials were Nazi sympathizers. They probably thought the Nazis had "gone a little overboard," but were basically on the right track, their kind of people. Stands to reason they would be offended by the very notion that people like themselves should be held to account for the insanely brutal exercise of power. irony, all are welcome to the "Bush and Cheney are Not Fit to Lick the Soles of my Shoes" club. You can be president.

- roidubouloi

February 17, 2010 at 2:38pm

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In Churchill's case, I think it was that he thought that the Nuremberg Trials (a) could make political reconstruction of Germany more difficult, because you were going to need people who had been Nazis, as starting with a totally clean slate was impossible, (b) they might open the door to prosecutions at a later date of, say, British imperial administrators or military commanders who had used harsh tactics against an anticolonial insurgency, and (c) they were just feeding some naive American desire for political virtue.

- ironyroad

February 17, 2010 at 2:54pm

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Let's say that Churchill was wrong on (a) as there were plenty of Nazis left to staff Germany despite the Nuremberg trials, wrong on (c) as the political impact of the trials vindicated the American view, and right on (b), although British justice seems more concerned with trying Tzipi Livni for defending her country from attack than in trying Tony Blair for waging aggressive war against Iraq in violation of the UN Charter and the law of war as it currently exists.

- roidubouloi

February 17, 2010 at 3:00pm

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malahat, there's a legal affairs blog that I found fairly quickly that quotes Churchill more or less in the mode of deep skepticism that I outlined above: http://lawofnations.blogspot.com/2006/01/churchill-on-war-crimes-trials_23.html However, your question has brought me to thinking. It may well be the case -- and here I'm just speculating on the basis of what the blog author says -- that Churchill revised his opinion as the Nuremberg Trials proceeded down the road. Perhaps he came to see more value in the legal framework than previously. Here I have to defer to you or anyone who knows Churchill's postwar writings. I don't think it's controversial to say, however, that Churchill was very unwilling to have an international legal regime established that could be used against imperial powers at some future point. Remember, in 1945 in Asia, for example, the main British ambition was taking back British overseas possessions so that the defeat of Japan didn't give nationalist parties in Burma or Malaya an opening they might use.

- ironyroad

February 17, 2010 at 5:28pm

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What is with liberals like roi and Saddam Hussein? I guess committing genocide, starting two major wars and seeking nuclear weapons is no crime so long as the perpetrator is anti-American. I note that most of the Democratic leaders in Congress supported the liberation of Iraq at the time. Of course when the going got tough and they sensed an opportunity to weaken the Bush administration they jumped ship. Cowardice and lack of principle seem to be part of the Democratic DNA. For most Democrats it's party over country every time.

- bulbman1066

February 18, 2010 at 11:43am

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Bulb, Just as a thought experiment for you, consider this: What do you think the reaction of the American people would have been if Bush had said he wanted to take the country to war in Iraq to remove Saddam Hussein because Hussein had committed genocide, started two major wars, and was "seeking" nuclear weapons although he had no ties to 9/11, no involvement with international terrorism, no WMDs and no capacity to produce them in the foreseeable future -- the war to cost 4,000 American lives, many times that more grievous injuries, $1 trillion or so, and still be going on eight years later? Do you think he would have had their support or been run out of office? That is what actually occurred. The only reason Bush had political support is because he lied about Saddam's connections to 9/11 and terrorism and about the imminence of WMDs in Iraq. In fact, it is safe to say that the only think sufficient to motivate the country to war was the phony claim that Iraq was in imminent possession of nuclear weapons, which is why Bush told that very lie. He wanted the war to demonstrate American power. Dummy that he is, he succeeded only in demonstrating the limits of our power. Now, you think love of country means sending its sons and daughters to a pointless death in the desert, and not doing so is cowardice and lack or principle. What principle is it exactly that makes you love America but hate its children so much? And, by the way, a majority of the House Democrats voted against the war resolution.

- roidubouloi

February 18, 2010 at 3:51pm

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I realize I'm rather late to the party, but I wanted to pose a response to Isernoff's comment about terrorists not being criminals, but instead "something new in our experience," something so novel and different and terrifying that we must shed ourselves of the rule of law and standards of decency to deal with them. This entire line of argument appalls me, because it is now the standard party line from the Republican party, and isn't just wholly incorrect, it is bizarrely, freakishly, and mind-bogglingly self-evidently incorrect. Terrorists, Al Qaeda or otherwise, are absolutely not something new in our experience. They are a fairly common, if often troubling, kind of problem in the history of not just our experience, but the experience of governments throughout known history. What other organizations play at being "state-like" and "seek to cripply or destroy real states" while hiding themselves among friendly or easily cowed populations such as failed states? Why don't we go by era: Current: Hamas in Israel/Palestine (since 1987). Basque separatists in Spain (since 1959). The (latest incarnation of the) IRA in Great Britain (since around 1870). 1970s-2000s: The Tamil Tigers in Sri Lanka. 1960s-2000s: UNITA in Angola. 1960s-1990s: The PLO. 1950s-1980s: The Flemish Militants Order in Belgium. 1960s-1970s: The Quebec Liberation Front in Canada. The Baader-Meinhof Gang in Germany. The Weather Underground in the United States (who actually did issue a declaration of war against the United States government). 11th Century to 13th Century: The Hashshashin, in the Fatamid Caliphate and across the Mediterranean. 1st Century AD: The Zealots of Judea. So long as there have been states, there have been bitter people who have wanted to topple them, and some haven't been able to raise armies to do it. Sometimes, they gather very small but very loyal groups and commit violent crimes in pursuit of their political ends. It's what you have to deal with if you're a state. So no, terrorism isn't a new concept. It's very, very old: self-important criminals trying to cloak their crimes in a veneer of political intent, sure that they will one day be recognized for their greatness. To shred our laws, trample on fundamental human rights, and create new institutions because of their supposed "new" and "special" and "unique" status is to give them the recognition their narcissism craves-and to damage what makes our society worth defending. Or, in other words, why can't we just deal with it the way Nixon did? Or Belgium?

- janus

February 19, 2010 at 10:44am

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And may I point out that many who have been designated terrorists have indeed been "recognized for their greatness" within their own countries? They include the IRA in the War of Independence 1919-1921, the Jewish armed resistance in the British Palestine Mandate, the Yugoslav Partisans in WW2 the Soviet Partisans in WW2, the Viet Minh etc etc. The list does not include Ulrike Meinhof or The Shining Path. I think that it's important to distinguish between those groups who use force to achieve a potentially workable political objective -- usually national or ethnic liberation from a stronger power -- and those who have a peculiarly ideological or abstract goal that in any real world can only be imposed by dictatorial authority or in a non-existent ideal world.

- ironyroad

February 19, 2010 at 5:40pm

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Irony: there you go, against point to "Jewish armed resistance". Expect the usual, "it always comes back to the Jews, doesn't it" and the usual charges of anti-Semitism and so on ... my one advice, leave them out of it and talk about Tito's partisans. dimBulb: "What is with liberals like roi and Saddam Hussein?" Roid talked about a "thought experiment" with bulbie - a challenge, at best, given that that would require the tools of engaging in a thought experiment, but ... be that as it may ... "liberals like ... Saddam Hussein"? I mean, it's one thing for the average Tea Partier/Fox groupie to call Obama Socialist and Fascist in the same breath, or for Goldberg to conflate liberalism and Fascism. But, to call Saddam a "liberal" cannot be done (hat tipped to WSLC) without some risk of terminilogical inexactitude. Alternatively, it demonstrates a remove from reality that can only be called either extreme, though unfunny, satire or sheert psychosis.

- icarusr

February 19, 2010 at 6:36pm

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OK, take out Soviet Partisans. But I don't think Stalin's personal and deranged reaction is a model for all Russian attitudes over the last 60 years. Add in the Mau-Mau in Kenya -- much villified by the Brits in their day.

- ironyroad

February 20, 2010 at 1:21am

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Basman to rhubarbs: "From your entirely misconceived premises you wind up with the weird notion that Peretz is cowering before terrorists if he favors military commissions. Do you feel a warm surge of bravado in spouting such nonsense so glibly? An irony is that your declamation is based on such an analytically impoverished foundation." Do you recall some time ago taking me to task for employing "psychological" arguments? Rhubarbs' words are the kind of hyperbole that Peretz and others here use all of the time. I take rhubarbs to be saying that the desire to avoid trying the alleged terrorists in civil courts is a result of allowing ourselves to be intimidated by the terrorists, and that categorizing them as "enemy combatants" rather than accused criminals gives them an undeserved elevated status in their own eyes and in the eyes of much of the world. You may reasonably disagree, but that hardly renders rhubs' analysis "impoverished."

- dhurtado

February 20, 2010 at 7:56am

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Basman- Goldsmith and Comey do not, in the article you reference, conduct any analysis of why KSM and the other Gitmo detainees can legitimately be regarded as "enemy combatants." They merely assert that the administration could chose to treat KSM as an enemy combatant. It is hardly uncontroversial that the admin could legally do so.

- dhurtado

February 20, 2010 at 8:06am

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The problem with the Military Commissions Act's definition of "unlawful combatant" is that it is not necessarily consistent with that of international law and, to the extent it permits someone not captured on the "battlefield" to be deemed an enemy combatant and therefore deprived of constitutionally due process, of questionable constitutionality as well.

- dhurtado

February 20, 2010 at 8:53am

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I agree, dhurtado. The major problem with the Bush approach, continued thus far by Obama, is the lack of a good, legislatively-sanctioned definition of "combatant" and the unwillingness then to treat those classified either as criminal or combatant according to the law that applies routinely to that status. I maintain that all we need to get out of the legal thicket is a law that states that, in the case of an "unlawful" combatant, as also suitably defined, the government should have the option to declare the individual either a criminal or a combatant, upon the finding of a competent tribunal as to the individual's status. But once the status is decided, the body of law that already applies to that status should apply. This means normal criminal trials for criminals, detention in accordance with the Geneva Conventions for combatants, with the possibility of trial for war crimes in those cases where those extraordinary measures apply. If we were forced to define unlawful combatant, i expect it would make it extremely difficult, although not impossible, to so classify someone who is arrested in bed away from a battlefield. But is we captured some terrorist paymaster in bed, we would have the option of indefinite detention so long as the war lasts -- potentially through our lifetimes -- or of criminal trial, or of both if we can establish a war crime. If we are going to have war crimes trials, then, instead of low-level tribunals hidden in Guantanamo, we should establish a war-crimes tribunal with the stature and prestige of Nuremberg to express the gravity of the offenses. This alone would largely preclude trying 15-year old Afghans who attacked US soldiers, in Afghanistan no less. We would be a laughingstock for trying such a case as a war crime in the historical shadow of Himmler and Goebbels.

- roidubouloi

February 20, 2010 at 9:44am

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dhurtado, thanks for your comments, which I just now saw. I'll try to answer them as soon as I can--maybe later tonight. (I note that you saw--post scriptedly, I think-- my reference to the military commissions legislation.)

- basman

February 20, 2010 at 1:49pm

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But as Basman points out, the Military Commissions Act of 2006 does in fact provide for a Combatant Status Review Tribunal to determine whether a person is a “lawful enemy combatant” or an “unlawful enemy combatant.” The Act also defines both of those terms. It defines “lawful enemy combatant” in essentially the same way that I understand the Geneva Convention to define the term – as a uniformed soldier in the armed forces of a sovereign nation with whom we are at war. Constitutional due process would not be applicable to lawful enemy combatants who are captured on the battlefield because: (1) the exigencies of the battlefield render it impracticable; (2) there is no genuine issue that the combatant, being in uniform and captured on the battlefield, is in fact an enemy combatant; and (3) there are strict standards as to how POWs can be treated, including that they must be released as soon as the war is over. The Act’s definition of “unlawful enemy combatant” is, in my view, a self-serving one that removes the detainee from both the protections of the Geneva Convention and the protections of the U.S. Constitution: “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces)” OR a person who has been adjudged an unlawful enemy combatant by the Status Review Tribunal or similar tribunal. Note that there are no apparent standards for an adjudication of “unlawful enemy combatant” status by the Tribunal, nor is it clear who gets to decide that a person is an unlawful enemy combatant in the absence of a determination by the Tribunal. Note also that mere membership in Taliban or al-Qaida renders a person an unlawful enemy combatant, regardless of whether that person has ever engaged in “hostilities” toward the United States or was captured, as roi says, in his bed. The term is so broad as to include citizens of the United States, e.g., Timothy McVeigh. An “alien” unlawful enemy combatant is merely one who is not a citizen of the United States, and therefore the term would include someone like McVeigh who is a non-citizen, but legal resident of the United States. Now, I don’t have a problem per se with an “unlawful enemy combatant” being subject to trial by military commission, provided that the commission affords constitutional due process. But I do have a problem with using the categorization of a person as an “unlawful enemy combatant” to imprison that person indefinitely without a hearing or without a constitutionally adequate hearing. None of the circumstances that justify summarily and indefinitely detaining an enemy combatant under the Geneva Convention exists here. The Gitmo detainees have not, for the most part, been captured on the battlefield, there is no “war” among sovereign states as contemplated by the Geneva Convention, and there has been no direct observation, at least in most cases, that a given detainee is a member of Taliban or al-Qaida, much less that he has engaged in “hostilities” toward the United States. I do not believe that it is constitutionally permissible, whether Congress authorizes it or not, to imprison a person indefinitely without constitutionally adequate process to prove that they have in fact committed acts of “hostility” toward the United States. Re-defining a process as being something other than a criminal proceeding, or defining an accused criminal as being something other than an accused criminal, does not cut it. It’s Humpty-Dumpty time. A proceeding in which an accused person’s life or liberty is at jeopardy is a criminal proceeding, and there is nothing in our Constitution that permits it to be defined otherwise, particular when the purpose of re-defining it is to dispense with constitutional protections. That said, trial by a military commission would be fine, as long as the commission affords constitutional due process, except that the 6th Amendment of the U.S. Constitution provides that “[i]n all criminal prosecutions, “ the accused shall have a right to, among other things, trial by an “impartial jury of the State and district wherein the crime shall have been committed[.]” The crime that KSM is alleged to have committed occurred in the Southern District of New York (which includes more than just New York City). So Mr. Holder is/was constitutionally correct in seeking to hold the trial of KSM in the Southern District of New York.

- dhurtado

February 21, 2010 at 9:56am

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Dhurtdao, I’m going to confine my remarks your last post which takes on the legislation –which I have not and won’t read in toto—regarding unlawful enemy combatants. I take your very last sentences to mean that KSM must be tried in a civilian court. I’m wrong please correct me and I take your post to express the argument that anyone held as an unlawful enemy combatant from KSM—or bin Laden, if he were apprehended— to the innocent unfortunate who is wrongly swept up in his sleep must be afforded all the constitutional protections available to a American criminal defendant in America. That will include self incrimination privileges and limited rights of interrogation falling short, if I understand correctly, of those provided by the Army Field Manual, immediate rights to counsel and all the available rights of appeal. And if I’m wrong about that please correct me. At bottom the question seems to me to be a policy choice of how to think legally about the processing of people assimilable to jihadists such as ate typified by organizations like al Qaeda. What makes these organizations relevant to American concerns is their desire, where it exists, to do terrorism on American soil or to American targets off American soil. They wish to do terrorism when they can as part of their attempt to weaken, hurt, destroy America and terrorize Americans for their own ends. So not distinguishing between civilians and non civilians, they will do what they can to accomplish their ends be it by suicide killing, flying planes into buildings, driving cars into civilian institutions, setting off bombs in planes, leaving bombs to explode in places like subways and hospitals, and taking such further measures as their technological capabilities will allow them. Those capabilities foreseeably may include dirty bombs and biological warfare. Criminals, who may seek organizedly to profit, or expiate frustration in one off situations, and so on, do not, generally, have as their ends the terrorizing of a society with the goal of weakening it or even destroying it. So, for me, there is a valid distinction to be drawn as between a military and a criminal law paradigm as applicable to jihad like fighters and their top ranks. And I believe that distinction and the applicability of the military paradigm to such folks runs through the SCOTUS decisions such as Hamdi, Rasul and Boumediene, even when SCOTUS handed the Bush Administration a series of legal setbacks. For example in Boumediene, the plaintiffs would have been denied habeas if the DTA hearing provisions would have allowed for an adequate substitute incorporating more of the elements of natural justice. But unless I am mistaken or read that decision incorrectly, that adequate hearing structure did have to be the equivalent of the all constitutional rights accorded to criminal defendants. So I am not sure that what vexes you, among other things, and rightly so—“imprisoning a person indefinitely without constitutionally adequate protections”, and “adequate” is the operative word, has to compel the application of a criminal law paradigm. In fact I think it does not; and you assert, rather than make a case for your own conclusion that: “That said, trial by a military commission would be fine, as long as the commission affords constitutional due process, except that the 6th Amendment of the U.S. Constitution provides that “[i]n all criminal prosecutions, “ the accused shall have a right to, among other things, trial by an “impartial jury of the State and district wherein the crime shall have been committed[.]” The crime that KSM is alleged to have committed occurred in the Southern District of New York (which includes more than just New York City). So Mr. Holder is/was constitutionally correct in seeking to hold the trial of KSM in the Southern District of New York.” (BTW, if I understand you right, Mr. Holder and Mr. Obama are “constitutionally incorrect “in believing that the military commission hearings will be perfectly fine for those whom the Administration choose to put before them. And I guess for the ranters, in which group I do NOT of course include you, Obama and Holder must be the same quivering, spineless cowards as are Krauthammer and Peretz.) Simply put your conclusion does not necessarily follow from the inadequacies you argue exist in the small parts of the legislation I before referred to. I don’t know why the category of “unlawful enemy combatant” is “self serving” or what exactly you mean by that. What the legislation aims at is setting up a structure to deal adequately on a military paradigm the modern phenomenon of irregular, non state actors with tremendously growing lethality at their disposal meaning as much damage as they can to America. Naturally the legislation will be drawn broadly to have as wide a sweep as possible subject to being overbroad, and the courts can define those limits. Next time an alien Timothy McVeigh plans some terrible havoc with more developed means than what McVeigh used, I’d be happy, if I was an American, to have processed by constitutional adequate military justice, and I’d be happy if Army Field Manual techniques before the fact could apprehend the plot, or HIG if it was implemented and could be used. (By the way, I don’t read the legislation as ipso facto equating a member of a terrorist group like al Qaeda or the Taliban as an unlawful enemy combatant. I read its bracketed portion as making clear that members of al Qaeda or the Taliban can be unlawful enemy combatants.)

- basman

February 21, 2010 at 4:11pm

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p.s. admittedly not the most elegant thing I have ever written, but, poor thing that it is, t'will serve.

- basman

February 21, 2010 at 4:36pm

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My point, dhurtado, is simple: An individual is entitled to either the protections of the Geneva conventions as a prisoner of war, which does not exclude liability as a war criminal, or to the protection of the criminal process required by the Constitution. The only thing that seems to me to be different about "unlawful combatants" is that we ought to be able to decide whether to treat them as criminals or soldiers because they have not done the things that entitle them to the protected status of combatant. Under the Geneva Conventions, a combatant who does not qualify as a protected person must still be tried, if at all, in a "regularly constituted court." That would appear to me to suffice to exclude some standard of criminal justice and procedure other than what is considered normal in this country. On the other hand, if they are to be treated as combatants, then we don't have the general power to try them as criminals, only as war criminals, a much more limited class. If we are to try them under the criminal laws, then they ought to be entitled to normal criminal process. Further, I see no basis for the distinction between citizens and aliens as far as the application of constitutionally required criminal procedure. The Fifth and Sixth Amendments do not speak of the rights of "citizens" but of the rights of persons ("No person shall be held to answer . . . ") and of the accused. It certainly may be the case that under the conditions of irregular war we do not have the opportunity to build the sort of case that would stand up in a criminal trial. That is precisely why we do need the ability to treat unlawful combatants as combatants. It does not follow, however, that if we are to treat them as criminals that there is any basis for inferior process, be it the process that applies to ordinary crimes or war crimes. If we don't think we can prosecute them, we can, in a proper case, hold them as combatants until the end of hostilities, which may be a very long time. Upon reflection, I don't have a problem with this definition: "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces)" so long as the parenthetical is not understood to obviate the standard of "engaged in hostilities" or "purposefully and materially supported hostilities." Seems clear enough and appropriate to the problem at hand. One would assume that the facts, including those of capture, whether on or off a battlefield, would bear on the The problems, rather, are with what follows from the finding of status. For example, there is no reason to preclude any such person from challenging the finding by habeas corpus petition. Just because you petition, doesn't mean you have any substantial claim or one that cannot be summarily dismissed for lack of a colorable basis. The circumstances of capture are surely relevant to the status. Capture on an actual battlefield while holding a weapon or having just used one should make it much easier to find combatant status than capture in bed far from any battle. On the other hand, capture on the field of battle ought to make prosecution for a war crime much less likely, as it is not a war crime to engage in combat against our soldiers. Deliberately targeting civilians, particularly away from any field of battle where there is no ambiguity about military necessity, is a war crime that makes it possible to prosecute either the shoe-bomber or the KSM as a war criminal. But again, whether the evidentiary standards need to be relaxed at all should not have to do with the status of the person but with whether the exigencies of the war make it impossible to uphold the same standards of evidence. In the case of a US citizen captured in the US committing a crime in the US, even if it is a war crime because the person is a combatant, I don't see the justification for any different practice regarding evidence. For someone whose conduct was beyond the legal jurisdiction of the US, allowance must be made in a war crime prosecution for the difficulties of assembling evidence beyond the reach of US justice. If the standards are at all times practical rather than a mere reflection of our anger at unlawful combatants, there is no reason why we have to be tied in knots by this. It is the argument, "but don't you realize this is a war" that is ultimately completely empty and unavailing. It proves nothing; it solves nothing; that fact alone does not relieve us either of the requirements of the US Constitution or of the Geneva Conventions. In fact, we can comply with both if we make it our business to do so rather than trying to evade them as the Bush administration so clearly strove to do.

- roidubouloi

February 21, 2010 at 5:32pm

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Basman- First, you misconstrue (or I mis-conveyed) my point. I think I said that I am not per se opposed to trying accused terrorists in military tribunals as long as the process afforded by those tribunals is constitutionally adequate. I am currently agnostic about whether the military commissions are in fact constitutionally adequate, but there is controversy about that in the American legal community, particularly among lawyers who have defended or are defending Gitmo detainees. But that is not my real issue here. I am making two points here. First, the 6th Amendment requires a criminal defendant to be tried in the district in which the crime is alleged to have been committed. So I am not saying that KSM must be tried in a civilian court. I believe he could be tried by a military commission if the trial were located in the Southern District of New York and if the trial otherwise satisfies the 5th and 6th Amendments. But Holder was not incorrect in planning to try other detainees in military commissions because those detainees are not alleged to have committed crimes on U.S. soil. Second, I believe that any person who is being held by the United States for committing acts of violence, and who is not an enemy combatant within the meaning of the Geneva Convention, cannot constitutionally be imprisoned indefinitely without being charged and tried in a manner that is constitutionally adequate. Now, I understand all of the policy arguments for treating KSM and his ilk as neither enemy combatants within the meaning of the Geneva Convention nor as criminal defendants to which the U.S. Constitution is applicable. But if the argument is that we need some new legal regime that excepts such people from the reach of both the Constitution and the Geneva Convention, then let’s acknowledge that that is what we are saying. Let’s not pretend that indefinite “preventive” detention, “enhanced interrogation” techniques, or summary execution (as some people advocate) are either constitutional or consistent with international law. And as we embark on this new regime, let’s not proceed cavalierly or based only on fear. Let’s be mindful of the possibility that this new regime could be profoundly counterproductive, and could undermine the Constitution and international law as it applies to people who we do not deem terrorists.

- dhurtado

February 21, 2010 at 7:05pm

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I generally agree with you roi. However, I do have a problem with the MCA’s definition of “unlawful enemy combatant.” First, I do read it as defining mere membership in the Taliban or al-Qaida as sufficient to render one an “unlawful enemy combatant.” Otherwise the parenthetical language is mere surplusage and adds nothing to the definition. It would nevertheless be necessary to independently establish that the al-Qaida member, for example, has either “engaged in hostilities or . . . has purposefully and materially supported hostilities against the United States.” Second, there is nothing about the definition that has anything to do with the exigencies of war. I see no reason that the guy who recently crashed his plane into an IRS office in Austin would not be an “unlawful enemy combatant.” I acknowledge that I am not sure of what significance the status of “unlawful enemy combatant” has in the overall structure of the MCA, other than that unlawful enemy combatants are subject to trial in military tribunals. I appreciate your point that what process is due should not superficially be determined by labels. But that appears to be exactly what some people are arguing – i.e., that we could simply choose to classify KSM as an unlawful enemy combatant, and that the Constitution would then not apply, and we could him indefinitely in “preventive detention,” or could even summarily convict and execute him.

- dhurtado

February 21, 2010 at 7:49pm

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That language is certainly inartful, but it would seem that if the intention were to make membership in the Taliban or al-Qaeda an alternative to "engaged in or materially supported hostilities," you would think it would have been stated in the disjunctive, A or B. I don't think that the guying crashing his plane could properly be classified as a combatant unless he were a member of or co-participant in some quasi-state organization and were acting violently or supporting violence that could be said to be military. Maybe that is vague, but I don't find that I have trouble classifying the shoe-bomber as an unlawful combatant and the plane-crasher as a profoundly disturbed criminal. In one way, the answer is that, even if the hostilities might never end, the possibility of their ending has to exist. It is possible that we could achieve a peace settlement with al Qaeda, however unlikely. But with whom would we settle in the case of the plane crasher? An army of one won't do. I agree that many seem to be arguing that the process due is determined by the status label. I think that is absolutely wrong. What the status should determine is whether we are operating under the criminal justice system or the law of war. Both are well-developed bodies of law that pass muster under the Constitution, as must everything undertaken by the US government. It is the claim that unlawful combatant status removes the strictures of either or both the Constitution and the Geneve Conventions that is unacceptable. This has become on its face an argument about military versus civilian courts. That only obscures the main issue which is that some regular body of law must apply or we are suddenly in a whole new legal world that we should want no part of and our Constitution does not permit.

- roidubouloi

February 22, 2010 at 12:33am

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...First, you misconstrue (or I mis-conveyed) my point... I vote for mis-convey. :-) But thanks for the clarification. I read your post differently than what you intended.

- basman

February 23, 2010 at 11:56am

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But why wouldn't the guy who crashed his plane into the IRS office be “a person who has engaged in hostilities . . . against the United States . . . who is not a lawful enemy combatant"?

- dhurtado

February 26, 2010 at 7:22am

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