Tim Sumner

Guantanamo, Lawfare

Closing Guantanamo could release terrorists onto America’s streets

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Liberals want to move the Guantanamo terrorists onto U.S. soil and five members of our Supreme Court have granted them due process rights. The administration has attempted, without success, to send home about 80 of the 375 or so Guantanamo detainess yet many nations will not take them back. Why should Yemen, where organized escapes have already freed terrorists, to include some of those involved in the bombing of the USS Cole, want them back? From their point of view, the detainess should remain the Bush administration’s problem. In addition, our laws and legal challenges have kept us from releasing some detainees to nations where they might be treated inhumanely. Yet if Guantanamo is closed, those terrorists might someday be released to move in next store to you, as David Rivkin and Lee Casey explained today in the Wall Street Journal:

There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the “20th” 9/11 hijacker Zacarias Moussaoui.
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Despite the rhetoric of the administration’s critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.

Thus, even assuming that congressional Democrats would accommodate the administration’s request for such legislation — and they do not appear to be in an accommodating mood — the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America’s streets.

This frightening possibility is real enough, because the final option — processing the detainees in the civilian court system — is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.

Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.

CIPA permits the government to protect classified information throughout the pre-trial, including the “discovery,” phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant’s right to have the evidence against him presented in open court — another legislative option allegedly contemplated by the administration — is neither likely to be adopted by Congress nor blessed by the courts.

No problem. If terrorists are released onto America’s streets, I am sure the 50 states will just pass more watch-list legislation, sort of the Todd Beamer’s Law equivalents of Megan’s Law. Yet that will not even happen for they will not have a criminal conviction on which to base the registration.

The Democrats are tough on terror? Yeah, right.

9/11, Political wind

IAFF union disingenuous video attacks Rudy Giuliani

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The International Association of Firefighters’ video Giuliani Gets Exposed As Fraud by Firefighters is a disgusting, disingenuous, politically motivated hit piece on former Mayor Rudy Giuliani. Before you watch it on YouTube, please read and see the following.

Firefighter Jimmy Riches, of Engine 4, did not die because the FDNY’s radios did not work on 9/11. Jimmy Riches died because murdering terrorists callously attacked innocent civilians in New York City where the firefighters of the FDNY are rightfully known as the Bravest. Jimmy Riches died because he had the courage to answer the call, stand by his Brothers in a building with a huge fire burning over his head, and do what firefighters always do, their duty to community. 343 active duty FDNY firefighters died on 9/11, including 14 members of Ladder 15 / Engine 4 firehouse, among them Jimmy Riches and my brother-in-law, Ladder 15’s LT Joseph G. Leavey. They died heroes, not the victims of a Mayor who bought radios under a no bid contract.

Engine 4’s driver, Bobby Humphrey, told me 5 years ago that he heard Engine 4 on the radio, while they were upstairs and he was below at the staging area. Jimmy Riches went with Engine 4 to assist people in the North Tower. Alongside firefighters from Engine 28 and Truck 7 [Ladder 7], Engine 4 was evacuating yet selflessly stopped to search the North Tower’s lobby. Engine 28 and Truck 7 had barely cleared the building (and survived) when the North Tower collapsed. Bobby was interviewed by Dennis Smith for Report from Ground Zero and is quoted there saying much the same thing. Click on the image below.

fdny-ff-bobby-humphrey-engine-4-chauffeur-on-september-11.jpg

Click on image to enlarge

Oh, by the way, the radios used on 9/11 were not the radios Giuliani ordered; they were the old ones. The ones Giuliani ordered are currently being used by the FDNY today. Some of the firefighters did in fact hear the evacuation order that morning and either went to tell others, continued to assist in rescue operations, or hesitated while evacuating to search further. Because of the limits of the technology it took an additional 5 years — after 9/11 — to fully test, tweak, configure to speak on one channel with the NYPD in an emergency, and field those radios. Because of the limits of the technology, on 9/11 and still today, no radio currently in existence overcomes all the obstacles and atmospheric conditions that detract from communications while operating in high-rise towers.

Hundreds of firefighters were, six weeks after 9/11, crawling all over and under a very dangerous Pile. They were supposed to coordinate their search efforts with the construction workers operating the equipment to safely remove the crushed towers so those murdered could be recovered. Yet many firefighters were placing themselves and others at unnecessary risk.

While Rudy Giuliani pulled them off at that point, he did not “have them arrested” when “families and off-duty firefighters” protested “Rudy’s appalling lack of respect.” The Harold Shaitenberger organized and IAFF produced hit piece implies that Rudy Giuliani had numerous 9/11 family members and firefighters arrested when no family member was ever arrested for protesting. A few union leaders and one firefighter were arrested (the latter for punching a NYPD police officer in the face). Only that firefighter was prosecuted and he got slapped on the wrist, paying a small fine after pleading guilty to the reduced misdemeanor offense of being disorderly during the protest.

75 firefighters per shift were allowed back on the Pile a few days later when cooler heads prevailed, firefighters agreed to operate safely while on the Pile, and FDNY battalion chiefs were ordered to closely supervise their movements.

Despite IAFF Union President Harold Shaitenberger’s endorsement of John Kerry, FDNY firefighters overwhelmingly voted to reelect George W. Bush in 2004. In addition, FDNY firefighters booed FDNY firefighter union (UFA) President Steve Cassidy’s choice for 2008 [Hillary Clinton] off the stage in 2001.

It is one thing to have an opinion about Rudy Giuliani’s worthiness for President yet it is another to twist the truth about what happened on 9/11 to fit your own political objectives. Those that cry and scream that others are using 9/11 for political gain when they themselves are doing exactly the same thing are hypocrites. If Rudy Giuliani is fair game for his 9/11 related actions, then the veracity of the statements and political and personal motivations of those using 9/11 as a weapon to attack him are also fair game.

Terrorists caused the deaths of Jimmy Riches, Joe Leavey, and nearly 3,000 people on 9/11. I did not hear that mentioned once in the following video and wonder why not? I think we all know the answer to that question.

There is more to say about the lies being offered against Rudy Giuliani yet there will be more IAFF orchestrated attacks on him as the campaign heats up.