enemy combatants

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

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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.

A response to the Department of Justice ‘Fact Sheet’ on Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

In Washington today and tomorrow, the DOJ’s Office of Justice for Victims of Overseas Terrorism (OVT) is briefing American family members of those murdered by terrorists, as well as those injured during terrorist attacks. The stated purpose of the briefing is to:

…[offer] those interested the opportunity to meet task force members, hear an overview of task force work, and express views about the policy questions the Detention Policy Task Force is studying. Please click on the link for the Detention Policy Task Force to see some of the questions that the task force is considering. [password required] … For those unable to attend the meetings, but still interested in expressing views, we welcome written submissions. Please send your written comments via email (nsd.ovt@usdoj.gov) or fax (202-514-4275) to OVT by June 19, 2009.

In advance of the briefings, the Department of Justice issued a press release on June 9, 2009 that is posted below (in black). A response from 9/11 Families for a Safe & Strong America is interjected in red and blue.

Department of Justice Press Release Tuesday, June 9, 2009
Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

I. Terror Prosecutions in the Southern District of New York
Since the 1990s, the U.S. Attorney’s Office for the Southern District of New York (SDNY) has investigated and successfully prosecuted a wide range of international and domestic terrorism cases — including the bombings of the World Trade Center and U.S. Embassies in East Africa in the 1990s.
FACT: From 1993, starting with the first World Trade Center bombing, to the attack on the USS Cole in 2000, Al Qaeda killed 265 people and injured another 5,496. In the same period, a total of 29 people were convicted in major terrorism trials, only a handful of which were high-level operatives. Many of those responsible for the deaths of Americans and others were never apprehended. Those who were tried received platinum due process. And yet, 9/11 occurred. 3,000 more deaths in one day. The criminal justice system is not designed to protect American citizens from future terrorist attacks by covert, militant wahhabi organizations operating in global networks, carrying out martyrdom operations, with assistance from foreign states (Sudan, Saudia Arabia, Syria, Iran, Somalia, former Iraqi regime) and like-minded terrorists organizations (Hamas, Hezbollah). These are not street criminals who plague individuals. These are committed jihadists who pose an existential threat to the United States. When captured, Al Qaeda members are dedicated to continuing jihad, whether through propaganda or physical assaults on their captors. They are proud of their crimes, and are not interested in American justice. They are interested in undermining American justice. They are war criminals. Criminal indictments issuing from U.S. federal grand juries in the 1990s did not stop Osama Bin Laden or make the world a safer place.

Major Historical Cases in SDNY:
1993 World Trade Center Bombing: After two trials, in 1993 and 1997, six defendants were convicted and sentenced principally to life in prison for detonating a truck bomb in the garage of the World Trade Center, killing six people and injuring hundreds more. One of the defendants convicted at the second trial was Ramzi Yousef, the mastermind of the attack.
1994-95 Manila Air Plot: Ramzi Yousef and two others were convicted in 1996 for plotting to plant bombs aboard a dozen U.S. commercial aircraft that were timed to go off as the planes were flying over the Pacific. The defendants were sentenced to substantial prison terms. Yousef concocted the plan with Khalid Sheikh Mohammed, who is currently detained at Guantanamo Bay and has been indicted in SDNY for the Manila Air conspiracy since 1996.
1995 “Blind Sheikh” Trial: Ten defendants associated with a mosque in Brooklyn, N.Y., were convicted of plotting to blow up the World Trade Center, United Nations headquarters, and various bridges, tunnels and landmarks in and around New York City. The lead defendant, Omar Abdel Rahman, also known as the “Blind Sheikh,” was sentenced to life in prison, while his co-defendants were sentenced to prison terms ranging between life and 25 years.
Bin Laden Indictment and Embassy Bombings Trial: Shortly after the August 1998 bombings of the U.S. Embassies in Kenya and Tanzania, SDNY indicted Usama Bin Laden and approximately 20 alleged al-Qaeda loyalists for conspiring to murder Americans worldwide. Many of the defendants were also charged for their roles in the attacks on the U.S. Embassies in East Africa, including three defendants who were convicted after a six-month trial in early 2001. Those three defendants, and a fourth al-Qaeda member who was tried with them, were all sentenced to life in prison.
FACT: The conspicuous absence, after nearly nine years, of any USS COLE prosecutions. The imminent trial of ABD AL-RAHIM AL-NASHIRI under the Military Commissions Act was suspended by President Obama.FACT: The total number of convictions in major terrorism cases in federal court, after hundreds of millions of dollars in litigation costs, from 1993 to 2001, was 29 people, most of whom held small roles in the larger conspiracies. In fact, some of those who participated in the bombings were never apprehended or tried. There was virtually no intelligence value to these prosecutions. Indeed, due to federal discovery rules, sensitive classified information deemed “material to the defense,”was ordered by the presiding judge to be handed over by prosecutors. In the Rahman “Blind Sheikh” case, a list of 200 un-indicted co-conspirators was given to the defense and in Osama Bin Laden’s hands within days. This told Al Qaeda who was known to U.S. law enforcement authorities, and who was not. See, former SDNY prosecutor Andrew C. McCarthy, “The Intelligence Mess: How the Courts Forced Me to Give Osama Bin Laden Sensitive Information,” Wall Street Journal, Sept. 20, 2006
FACT: The federal rules for handling classified evidence in criminal trials continues to be a problem for prosecutors. The Classified Information Procedures Act (CIPA) was written to prevent defendants in espionage cases from engaging in “graymail,” threatening to reveal classified evidence in open court in order to pressure the government to drop charges. Prosecutors were faced with the choice of “disclosing or dismissing.” The current problem involves terrorism defendants who use discovery rules to force the government to disclose classified information which can be conveyed to their confederates. Disclosure of classified evidence, e.g. sources, methods, names of infiltrators, strains relationships with foreign intelligences services who want their counterterrorism operations and cooperation with the U.S. to remain secret..