We need a ‘Rule of War Act’ (Graham negotiating 9/11 trial, Obama steps in, paging C-SPAN)

Colleagues of Senator Lindsay Graham have leaked that he and the White House are negotiating over where and how to conduct the 9/11 trial of Khalid Sheikh Mohammed and his four co-conspirators. In additional, President Barack Obama will apparently take a personal role in the negotiations and may overrule Attorney General Eric Holder’s decisions to this point.

We need a statute, a ‘Rule of War Act’, with no special date, sunset provisions, or naming it after some personage or group.

It would be the civilian authority providing for the common defense, while informed by the governed.

First, the entire negotiation and [formalized, federal debate *] needs conducted in the open — televised on C-SPAN — over the course of this year.

The top issues should be placed in simply, uniform terms on the November 2 national election ballot to express the people’s will. Congress should then create the statute in 2011 and the President can veto or sign it.

We should learn from the past, cover those enemies we now detain, and keep in mind this war may take some time and there will be future wars.

Here is my further two cents, my general thoughts on the statute’s provisions, for what they are worth.

When enemy war criminals are captured, we should prosecute them by military tribunal solely based upon our national security, what protects our people;

Lawful enemy belligerents should be detained for as long as hostilities last;

Unlawful enemy belligerents should be detained for as long as each remains a threat;

America’s foreign enemies should be afforded none of our Constitutional rights;

The Judiciary’s sole role should be classified detention review akin to determining probable cause;

and all long-term enemy detentions should take place isolated far from the civilian populace.


Note: * revised text.

New York Daily News: Keep 9/11 trial ‘the hell out’ of New York City (we say ‘not in America’)

The New York Daily News nearly matched their title ‘Keep the hell out: Obama must stop waffling and move 9/11 terror trial’ with the content of their editorial:

One of the most astonishing aspects of Obama’s struggle to find a location for perhaps the most important trial in American history is that the Justice Department got around to considering those “practical, logistical issues” only after Attorney General Eric Holder decided on New York.

Without consulting Mayor Bloomberg or Police Commissioner Ray Kelly in advance.

Without figuring the cost of security, estimated at $200 million a year, or making provision to pick up the city’s tab.

Without taking into account the extreme, long-term disruptions a trial would visit on downtown neighborhoods.

Without remembering the elemental truth that New Yorkers refuse to be played for chumps — a fact that puts Obama deep in the hole.

We’d be near full agreement with the Daily News had they not hedged by using ‘preferably’ in their closing line.

Since AG Eric Holder’s November 13, 2009 announcement, all major, national polls have shown a wide majority of Americans think that not only should the 9/11 trial not be conducted in New York City, foreign terrorists should not be afforded the Constitutional rights a federal court trial would provide them. Yes, some politicians would foolishly endanger the safety of their constituents and disrupt thousands of lives in their communities for years by inviting terror trials and detentions; they are the exception, not the rule.

Gitmo is no “black eye” on America; it is a uniquely suited, heavily defended, remote terrorist detention facility. Last year, during a meeting with 9/11 and U.S.S. Cole families, President Obama said Gitmo has been “confused with Abu Ghraib.” Our troops there are closely supervised by the DOJ and highly disciplined. The propaganda from the Left and al Qaeda would only move to the new locale if it is closed.

DOD sources have told us that had Khalid Sheikh Mohammed and his four fellow 9/11 conspirators been allowed to plead guilty and refused to appeal, the remaining prosecution costs for them would have been approximately $50,000. Had they not pled guilty and if they and all the other prosecutions were done by military commission at Gitmo, it would likely add tens of millions of additional dollars. Yet the total costs of prosecuting and detaining those now at Gitmo in the United States would run into the billions of dollars.

Detaining America’s enemies should never become a jobs program. Our valiant troops are already doing that tough and thankless duty for a hell of a lot less; it costs $100 million per year to operate the detention facility at Guantanamo Bay. Thomson Correctional Center alone will cost three times that much to purchase and twice as much to operate as a detention facility.

Last February, President Obama promised 9/11 and U.S.S. Cole families that “swift and certain justice” would be brought against those who had slaughtered our loved ones. Yet no one credible has disputed former U.S. Attorney Mary Jo White saying it will likely take three years just to prepare federal trials against the 9/11 conspirators. And last July, it was reported that military commissions for 66 detainees there were ready to proceed. Even with the revisions Congress made to military commissions, which the President signed into law this past October, they would surely get underway much sooner, at Gitmo, than by a federal trial.

We keep hearing that military commissions are untested. They’ve been around in some form since General George Washington used them during the Revolutionary War. Lincoln used them. Not including the Nurnberg trials, more than 1,100 were tried by military tribunal during and after WWII with an 89% conviction rate. The judges, lawyers on both sides, and legal assistants are well-experienced at conducting military trials.

What is really untested is successfully trying dozens of Gitmo’s terrorists in federal court, with trial and appeal judges accustomed to applying our Constitution. Why? Because there will be hundreds perhaps thousands of motions about delaying “their” speedy trial due to national security concerns, not reading them “their” rights, and not offering them “their” right to remain silent and the opportunity to speak with “their” attorneys before deciding if to speak at all. And here is news that perhaps you have read nowhere else: All those same Constitutional challenges would occur if military commissions are conducted on U.S. soil.

Non-New Yorkers are also not chumps.

With thanks for their editorial and due respect to the New York Daily News, the vast majority of those out here in fly-over country say no federal trial for those at Gitmo should ever happen inside the United States; all their trials should be by military commission, at Guantanamo Bay.