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By Mandy Simon, Washington Legislative Office

Today the ACLU, along with a broad coalition of human rights and civil liberties groups, sent a letter to the Senate urging senators to defeat a bill that would force the Obama administration to try terrorism suspects in the unconstitutional military commissions. The bill was introduced earlier this month by Sen Lindsay Graham (R-S.C.) and is almost identical to an amendment the senator offered last year (which was defeated soundly). The bill, S. 2977, would prohibit the use of Justice Department funds to prosecute the alleged 9/11 plotters in federal criminal court. The intent of the bill, in the end, is to force the administration's hand. Rep. Frank Wolf (R-Va.) has introduced a similar companion bill in the House.

Why this resurgence of mistrust in our federal court system?

You'll remember that last November, Attorney General Eric Holder announced that these trials would be held in federal court in Manhattan. It was the right thing to do. But the right thing isn't always the easiest thing. Holder has been under intense pressure from some members of Congress and NYC Mayor Michael Bloomberg to reverse his decision. These members of Congress are now pressuring the White House itself to transfer the cases to the unconstitutional military commissions system.

I think you know how we feel about those military commissions (second-class system of justice, created to guarantee convictions not justice — all that).

Sen. Graham's bill is dangerous because it will not only derail the administration's current plans and tie the president's hands, it will likely serve to delay justice even further. Not only that, it challenges the idea that our criminal justice system can handle terrorism cases. The facts, however, are against Sen. Graham. The military commissions have successfully prosecuted three (THREE) terrorists since 2001. Our federal criminal courts have convicted 300 (THREE HUNDRED!) in the same time frame. Oh, and those three military commissions-convicted terrorists? Two have already served their time and are currently free. If I was a betting woman (and I am), I'd put my money on our federal courts to get the job done. Why is Sen. Graham betting against us?

We and our coalition partners believe in the U.S. justice system and we believe that that is exactly where those accused of crimes belong. Call your senators and ask them to oppose Sen. Graham's bill.

For more information, we've just launched this handy landing page on the use of federal criminal courts for terrorism prosecutions. Enjoy!

Originally posted to ACLU on Fri Feb 19, 2010 at 12:19 PM PST.

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Comment Preferences

  •  My only question is (4+ / 0-)

    Why did it take so long to send the letter out?

    Thank you guys for doing this.

  •  If the security for downtown (2+ / 0-)
    Recommended by:
    zdefender, Kimball Cross

    Manhattan would be too disruptive, why can't the Southern District of NY establish a special tempoarary courtroom on Governor's Island.  It would be expensive, but, quite frankly, our system of Rule of Law is worth it.

    (BTW, as a resident of the Southern District of New York, I volunteer to be a sequestered juror for that trial).

    Wurzelbacher/Prejean in 2012 -- No wonder the Mayans were scared!

    by Its the Supreme Court Stupid on Fri Feb 19, 2010 at 12:30:27 PM PST

    •  They had no problem with trying (2+ / 0-)
      Recommended by:
      zdefender, Kimball Cross

      terrorists and real enemies during WWII - pushed the 1942 "sweep" through the regular court system before the end of 1942 - either released or imprisoned.  Funny how the previous administration liked to call up the memory of WWII without following any of the procedures used at that time (from trials for possible spies to taxes to pay for a war between the military fight of multiple nations, declared by Congress as required by the Constitution).

    •  if Obama said we were going to try them in Kansas (1+ / 0-)
      Recommended by:

      the right wing would be complaining about how Obama was insenstive to the victims' relatives and witnesses who all live in New York and would have to travel so far to attend the trial.

      "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

      by zdefender on Fri Feb 19, 2010 at 01:14:34 PM PST

      [ Parent ]

  •  It's the constitution stupid! (2+ / 0-)
    Recommended by:
    Kimball Cross, davidseth

    Why are we fighting terrorists, if not to defend the constitution?

    "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

    by zdefender on Fri Feb 19, 2010 at 12:37:10 PM PST

  •  Terrorists are criminals. They should be (3+ / 0-)
    Recommended by:
    zdefender, Kimball Cross, ColoTim

    tried in the appropriate criminal court.  They are not warriors or soldiers or otherwise official military service members of some national state.  They are thugs committing crimes.  Anytime we seek to try them as war criminals, we equate their thuggery to military service.  Our own military deserve better than to have their service so demeaned as to be equated with terrorist thugs.

  •  It should be obvious that the federal courts (0+ / 0-)

    can try whoever they want to.  They've done it before; they can do it again.  

    If there's a rational reason for not holding the trial in downtown Manhattan, fine, move it elsewhere in the Southern District.  Maybe White Plains?

    Graham and Bloomberg are trying to scare the trial into a military commission and out of court.  They have yet to explain why that's such a great idea.  I bet they cannot.

  •  Wrong audience for this. (1+ / 0-)
    Recommended by:
    Kimball Cross

    Everyone here already knows this is the right thing to do.  But we also know this not about what's right or wrong.  This is about scoring political points by opposing everything that comes out of our Administration no matter what.  Our President must not be allowed to take any action at all without being vehemently opposed, and I would think that we all know that by now...

    No politician ever lost an election by underestimating the intelligence of the American public. PT Barnum, paraphrased...

    by jarhead5536 on Fri Feb 19, 2010 at 12:45:50 PM PST

  •  KSM's treatment precludes civilian trial... (0+ / 0-)

    Based on precedent, even denying someone of Miranda warnings can be cause to dismiss criminal charges.  KSM was tortured repeatedly.  Perhaps there was evidence extranious to this that could be cause for conviction, but it doesn't matter.

    The mere fact that he was tortured, showed that he was guilty in the eyes of the executive branch, and was punished for his guilt.  To add to this the president does not used the world "alledged" which is integral to the purpose of an Aricle 3 trial which is to determine guilt or innocence.

    An event held that does not have this function is known as a "show trial" and actually debases the judiciary of a country that sponsors it.

    KSM, has been tried, more accurately his guilt has been affirmed,  and punished.   This can not be undone by any trial after the fact.   If such a trial is held it will taint our system of justice.

    Sorry, that where we are.  The toothpaste can't be pushed back into the tube.

  •  To spur some thoughtful discussion... (0+ / 0-)
    jarhead stated this is the wrong audience for the conversation.  Maybe correct.  However, not all Progressives have a laize faire attitude about national defense. I'm certain that the HR's will be plentiful because I've found an abundance of stone throwers on the site, rather than those that want to have an intelligent debate.

    Consider this: Jihadists declared "war" against the West and took decisive military action, therefore we are at "war" (whether officially declared in writing or not).  

    During World War II, our Soldiers, Sailors, Airmen, and Marines fought with allied nations against Nazi Germany.  The Germans were state-sponsored, highly organized, wore uniforms, carried out military maneuvers, and killed allied soldiers.  In that situation, we did not try to capture every Nazi soldier and put them on trial to see if they were guilty or not.  We shot them or they shot us, plain and simple - that's war.  Compare that to today's "War on Terror" (or whatever the current Administration calls it.)  We are fighting against a self-declared enemy that is not state sponsored (yeah-right) and do not wear uniforms, but are highly organized, carry out military operations and kill westerners.  For the same reasons as with the German soldiers, we don't put every enemy soldier "on trial" - regardless of that enemy's citizenship.

    Al Qaeda soldiers are combatants NOT criminals and therefore not entitled due process under the 14th Amendment unless captured (like Abdulmutallab) and then they should be interrogated for intelligence by the military and not read the Miranda rights like a common drunk driver.

    For a prior post (same subject), see

    Let the insults begin...

    •  YOU ARE RIGHT..,... (0+ / 0-)

      Well said....and you are correct....

    •   I disagree because of some of your (1+ / 0-)

      assumptions.  Germany and the other Axis powers had command structures in place with whom we could hold negotiations to end the war (as well as agree on how to treat prisoners, exchange prisoners, conduct cease fires, etc).  When they surrendered, their entire fighting force laid down their weapons and accepted the terms of surrender that their leaders agreed to.

      I submit that Al Quaeda has no such central structure and they, like the Republicans, will not accept any deal that their "superiors" negotiate that doesn't satisfy all of their needs as well.  Even if the United States forces should capture Osama, that won't mean the end of fighting for Al Quaeda.  Even if Muslim clerics were to declare an end to hostilities, there would still be battles raging between different sects.  

      The only way to deal with these fighters is to acknowledge that they're not state sponsored or directed (they may receive some funding but they're certainly not controlled by Iran, Pakistan or any other governmental group).  Once you see that reality, there's no alternative but to treat these guys like criminals.  Sure they're better armed than most, but our soldiers have been sent in for precisely that reason - the Taliban and Al Quaeda bring bombs and guns to the fight, our soldiers bring Predators, bigger bombs and better weapons to the fight.

      The reason this "war" is never going to end is because there's nobody to negotiate an end to the war with.  Your equating the soldiers in World War II to these jihadists is an insult to the soldiers of the nations (on all sides) of World War II.

      •  No insult intended to traditional soldiers (0+ / 0-)

        True, the similarities between the Axis powers and the terrorist ends in the "means" of battle.  Due the asymmetric nature of this war, the terrorist use the weapons of the weak (box knives, roadside bombs, indiscriminate killing of civilians, etc) to instill fear with hopes of causing a domino-effect in the economy and effectiveness of their sworn enemy.  But it doesn’t make them less than soldiers for a common cause.  Jihadistan is a borderless nation of Islamic extremists that constitutes al-Qa'ida and other Muslim terrorist groups around the world. The "Islamic World" of the Quran recognizes no political borders. Though orthodox Muslims (those who subscribe to the teachings of the "pre-Medina" Quran) do not support acts of terrorism or mass murder, sects within the Islamic world subscribe to the "post-Mecca" Quran and Hadiths (Mohammed's teachings). It is this latter group of death-worshipping sects that calls for jihad, or "holy war," against all "the enemies of God." (... or infidels, consist of all non-Muslims). So I still believe these terrorists are combatants not criminals.

        I will agree there seems to be no end in sight.  Even before we entered into Iraq and Afghanistan, we should've had an exit criteria and strategy.  That's what the current Administration should do for this war: define an exit criteria. (not an arbitrary timeframe)  e.g., If we meet goal X, then pull out.

      •  Furthermore (0+ / 0-)

        An impartial look at the definitions can reveal much about the terrorist when asking if they are criminals or combatants.

        Merriam-Webster defines a crime as, "an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; especially : a gross violation of law"

        Combat is simply defined as, "a fight or contest between individuals or groups."

        Jay walking, for example, is a crime but not combat.  The use of deadly weapons could be either a crime or combat.  But, the terrorist’s fight with deadly weapons against the West (group vs. group) can only be classified as the latter.

        Criminals break the law for personal gain but they aren’t organized like a military.  Terrorists are organized for political gain (whatever their stated purpose).  al-Qa'ida is categorized as a cell-organization which has leadership but not of a hierarchical nature (think starfish vs. pyramid).  Unlike criminals, terrorists have training camps, weapons supply chains, and orders.  Those who flew into the WTC, Pentagon, and PA had military "orders" to execute.  

        Terrorists are military combatants not criminals. Therefore, they should not be put on civilian trial as suggested by the author ACLU.

        •  With war, though, you can keep someone (1+ / 0-)

          in prison until the end of hostilities - where there is a negotiated peace.  That can't possibly happen here.  It was only those who committed war crimes - like the Nazi prison guards - who were put on trial for their crimes against humanity.

          I don't see any way that can be applied to this war on a tactic - and without that, without some specific side for these people to belong to, there're no real laws that can cover it as a war, but it sure can be covered under civilian law.  These are people who, whether it's for monetary gain or for spiritual gain, are breaking laws as they pursue their fight - they're killing people, destroying property, terrorizing civilians and combatants, they're stealing and looting and there's no single authority directing their actions.  Sure there's some sort of network, but that's not the same level as a government which has a country, boundaries or a particular singular organization.   We've all heard stories about how people join the terrorist cells because that's the only source of money in these devastated areas.  That's the same logic used by criminal gangs here in the US - they have no jobs, no prospects, maybe they're threatened with harm if they don't join.  

          US civilian laws, international laws and the laws of Afghanistan and Pakistan and Iraq (Spain, Indonesia, England, etc, etc) all cover what these thugs and criminals and gangs are doing.  And we're successfully able to prosecute the cases in court, except where the Bush cabal directed the breaking of laws for their own evil ways.  Sure that's screwed up the prosecutability of some of these cases, but we've seen plenty of evidence that there are many held in error, many more are held because they were victims of heresay that can't stand up in military or civilian court, and we need to get those people justice.  The fastest, most fair way is to do it in our civilian court system and not some shady court where the witness isn't allowed to see or challenge the evidence against them.

          These people should be prosecuted in civilian courts, not as military combatants - we've never gone the military route in the past in similar occasions (I'm thinking both of the way that Bushco prosecuted terrorism cases, the way that we've always prosecuted cases against drug lords who have their armies (should they be given military trials?) and the way we've prosecuted people who were found as spies.

          •  You make some really good points (1+ / 0-)
            Recommended by:

            especially the parts about terror networks not being on the same level as a government. I like you, ColoTim. I appreciate your civility and well thought out arguments.

            This is a tough nut to crack, for sure. Official declaration of war is internationally recognized only between nations and forms of government.  Non-state actors and terrorist organizations don’t qualify and Congress couldn’t declare war against al-Qaida if they wanted to.  This makes a good case for "criminal" court.

            Unfortunately, Jihadists declared "war" against the West therefore we are at "war." Whether or not they are working for a government is not part of the "combatant" litmus test. If is looks like a soldier, acts like a soldier, kills like a soldier...then it's a soldier (read combatant).  As for the Drug Lord "armies," they come close but don't pass the test of taking offensive action against our government.  (Defensive? Sure) Their motivation is profit not politics.

            •  Thanks. A question for you - (1+ / 0-)

              Since Al Quaeda (whatever the spelling) has declared war against the United States, what do we do about their attack against helpless civilians?  Their first attack hit a purely civilian target on 9/11, and back in Africa, they attacked the US Embassy before they attacked the USS Cole in Yemen.

              Al Quaeda attacks civilians and military - it seems they don't discriminate, and often a civilian target is easier than a military one.  There have been many attacks on civilian targets - hotels, restaurants, market squares - and many have been conducted by groups that claim some sort of affiliation with Al Quaeda, but those links haven't been acknowledged in many instances, and if they were, there're questions as to the legitimacy of those who speak on behalf of Al Quaeda.

              Sure they've declared war on western infidels, but that's basically everyone from the west.  They're not just fighting the armies of the west, and they're not using tactics designed to win anything like territory or power - they're out to destroy everything - be it western governments, western civilians, their own governments if they don't follow sharia law, other sects than their own pure religion.  I can't see those people as warriors - I see them as forces of chaos and I consider them criminals, not soldiers, no matter how much training in a camp they receive.

  •  Right to a SPEEDY trial. (0+ / 0-)

    Since many of these defendants have been held for years without commencement of proceedings,  their charges should be dismissed, and they should be released.

    Federal Rules of Criminal Procedure 48(b)

    The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

    (1) presenting a charge to a grand jury;

    (2) filing an information against a defendant; or

    (3) bringing a defendant to trial.

    US Attorneys' Manual> Title 9 > Criminal Resource Manual 628
    A defendant's right to a speedy trial has constitutional and statutory underpinnings in addition to the Speedy Trial Act. Federal statutes of limitations provide a time frame within which charges must be filed. Moreover, Rule 48, Fed. R. Crim. P., grants trial courts discretion to dismiss cases that are not brought to trial promptly. See Rule 48(b), Fed. R. Crim. P. (authorizing trial court to dismiss indictment if there is "unnecessary delay" in presenting the charge to a grand jury, in filing an information, or in bringing a defendant to trial).

    Even if a charge is brought within the period provided by the statute of limitations, a defendant may be able to show that preaccusation delay has violated his Fifth Amendment due process rights. To obtain a dismissal of the charges by reason of pre-indictment delay, a defendant has the burden of establishing that the government engaged in intentional delay to gain a tactical advantage, and that he suffered actual prejudice. United States v. Lovasco, 431 U.S. 783 (1977); United States v. Marion, 404 U.S. 307, 324 (1971).

    I am not currently Licensed to Practice in this State.

    by ben masel on Fri Feb 19, 2010 at 01:52:10 PM PST

    •  You're forgetting the 1st clause of the 5th Amend (0+ / 0-)

      many people (who haven't actually read the Constitution and the Bill of Rights) know the 5th Amendment protects citizens from self-incrimination and due process.  But disregard the first clause which states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, <italics>except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."<italics>  The key here is this is a time of war/public danger.

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