Gitmo

Vote out those House Democrats who flip-flopped to give KSM a civilian trial (Updated)

Updated, 4:55 a.m. Eastern. Nov 25:

While the win-loss tally for the Gitmo switchers was close to an even split, the Democrats lost the House and their vote to bring terrorists into U.S. federal courts for trial contributed to that loss.

In addition, a significant number of House Democrats who consistently voted to bring Gitmo detainees to the U.S. were defeated. They are:

Joe Sestak, PA-7, lost to Pat Toomey in the PA Senate race.

Bob Etheridge, NC-2, lost to Renee Ellmers

John Spratt, SC-5, lost to Mike Mulvaney

Rich Boucher, VA-9, lost to Morgan Griffith

Scott Murphy, NY-20, lost to Christopher Gibson

Steven Kagen, WI-8, lost to Reid Ribble

Phil Hare, IL-17, lost to Robert Schilling

James Oberstar, MN-8, lost to Chip Chavaack

Travis Childers, MS-1, lost to Alan Nunnelee

Gene Taylor, MS-4, lost to Steve Palazzo

Chet Edwards, TX-17, lost to Bill Flores

Ciro Rodriguez, TX-23, lost to Francisco Canseco

John Salazar, CO-3, lost to Scott Tipton

Steve Driehaus, OH-1, lost to Steve Chabot

Solomon Ortiz, TX-27, lost to Blake Farenthold

So far, 41 Democrats who voted on October 15, 2009 to bring Gitmo detainees to the U.S. for trial have lost their congressional races. There remains one undecided race (NY-1).

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Original Post, October 31, 2010, 7:11 AM:

President Barack Obama has indicated he will again attempt to bring Khalid Sheikh Mohammed into the U.S. for a federal trial after the midterm elections. The good news is the House Armed Services Committee cut off the funding this past spring when poll after poll showed a strong majority of the American people are opposed to the plan. If the House shifts to a Republican majority, it is unlikely the funding will be restored. We will be watching for the reelection results of those Democrats who first voted, in a non-binding vote on October 1, 2009, against authorizing the President to bring Guantanamo detainees into the U.S. for trial and then, when it counted a mere two weeks later, they switched their votes.

Two-thirds of these flip-flopping Democrats are in toss up, leans GOP, or likely GOP races with Election Day nearing. One particularly arrogant Congressman, Baron Hill of Indiana’s 9th District, is in a leans GOP race against Todd Young, a former Marine and Deputy Prosecutor in Orange County, IN. Congressman Hill had this to say last October after switching his vote:

“I haven’t had one person ask me about Guantanamo,” said Rep. Baron Hill, D-Ind. He added that he does “not in the least” fear it as an issue in next year’s elections.

Maybe Hill is correct; his votes for the health care, stimulus, and energy bills are perhaps why he is behind in the polls.

Yet in comparatively liberal New York, Congressman Daniel Maffei (NY-25) made those same votes, including switching to allow civilian trials for terrorists, and he has lost his lead against challenger Ann Marie Buerkle. Maffei had this to say about his Gitmo switch:

It’s a non-issue. Inside the beltway stuff,” said first-term Rep. Dan Maffai [sic], D-N.Y. “People care about jobs, the economy, health care.”

A third example is Congressman Brad Ellsworth (D, IN-8) in a likely GOP race for that open Senate seat against Dan Coats. While Ellsworth voted for both the health care bill and TARP, Coats slammed Ellsworth for his Gitmo vote in his very first television advertisement.

There are others, like Melissa Bean (IL-8) in a tight race against Joe Walsh, Gabrielle Giffords (AZ-8) in a toss up race against Marine veteran Jesse Kelly, and Ron Klein (FL-22) in a leans GOP race against retired Army veteran Lieutenant Colonel Allen West.

To be clear, we would like to see every Congressman who voted to afford the enemy a civilian trial voted out of Congress. But for now, we will be watching the Gitmo flip-floppers listed below (on the left). We urge our fellow Americans to vote for their opponents (listed on the right).

Michael Arcuri, NY-24, versus Richard Hanna *

Melissa Bean, IL-8, versus Joe Walsh *

Tim Bishop, NY-1, versus Randy Altschuler u

* Sanford Bishop, GA-2, versus Mike Keown

John Boccieri, OH-16, versus Jim Renacci *

Rick Boucher, VA-9, versus Morgan Griffith *

* Dennis Cardoza, CA-18, versus Michael Berryhill

* Russ Carnahan, MO-3, versus Ed Martin

* Ben Chandler, KY-6, versus Andy Barr

* Jim Costa, CA-20, versus Andy Vidak

* Jerry F. Costello, IL-12, versus Teri Newman

* Henry Cuellar, TX-28, versus Bryan Underwood

Kathy Dahlkemper, PA-3, versus Mike Kelly *

Lincoln Davis, TN-4, versus, Scott DesJarlais *

* Peter DeFazio, OR-4, versus Art Robinson

Brad Ellsworth, IN-8, versus Dan Coats (for U.S. Senate) *

* Gabrielle Giffords, AZ-8, versus Jesse Kelly

Alan Grayson, FL-8, versus Daniel Webster *

Debbie Halvorson, IL-11, versus Adam Kinzinger *

* Martin Heinrich, NM-1, versus Jonathan Barela

* Brian Higgins, NY-27, versus Leonard Roberto

Baron Hill, IN-9, versus Todd Young *

* Jim Himes, CT-4, versus Dan Debicella

Paul E. Kanjorski, PA-11, versus Lou Barletta *

* Larry Kissell, NC-8, versus Harold Johnson

Ron Klein, FL-22, versus Allen West *

Suzanne M. Kosmas, FL-24, versus Sandy Adams *

* Daniel Lipinski, IL-3, versus Michael A. Bendas

* Stephen Lynch, MA-9, versus Vernon Harrison

Daniel Maffei, NY-25, versus Ann Marie Buerkle *

Betsy Markey, CO-4, versus Cory Gardner *

Jim Marshall, GA-8, versus Austin Scott *

* Jim Matheson, UT-2, versus Morgan Philpot

Kendrick B. Meek, FL-17, versus Marco Rubio (for U.S. Senate) *

* Mike Michaud, ME-2, versus Jason Levesque

Scott Murphy, NY-20, versus Christopher Gibson *

Patrick Murphy, PA-8, versus Michael Fitzpatrick *

Glen Nye, VA-2, versus Scott Rigell *

* Ed Perlmutter, CO-7, versus Ryan L. Frazier

Tom Perriello, VA-5, versus Robert Hurt *

* Collin Peterson, MN-7, versus Lee Byberg

Earl Pomeroy, ND-1, versus Rick Berg *

* Mike Ross, AR-4, versus Beth Anne Rankin

* Bobby Rush, IL-1, versus Ray Wardingley

* Loretta Sanchez, CA-47, versus Van Tran

Mark Schauer, MI-7, versus Tim Walberg *

* Kurt Schrader, OR-5, versus Scott Bruun

* Allyson Schwartz, PA-13, versus Dee Adcock

* Heath Shuler, NC-11, versus Jeff Miller

Ike Skelton, MO-4, versus Vicky Hartzler *

* Adam Smith, WA-9, versus Richard Muri

Dina Titus, NV-3, versus Joe Heck *

Charlie Wilson, OH-6, versus Bill Johnson *

* John Yarmuth, KY-3, versus Todd Lally

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Note:

See RealClearPolitics.com for election race assessments.

November 2 is also All Souls’ Day and we remember 2,976 of those who departed on 9/11.

Holder holding KSM death penalty hostage for 9/11 civilian trial? (Update: plug these other damn holes!)

One April 21, 2010, I took issue with this (now repeated) assertion by Attorney General Eric Holder before the Senate Judiciary Committee:

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

In fact, 949i(b) of the Military Commissions Act indicates an accused may plead guilty and specifically states that a guilty plea is the equal of a finding of guilty by a panel (a military commission’s jury):

Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

Sec. 949m(1) “Numbers of votes required” elaborates

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(1) No person may be sentenced by a military commission to suffer death, except insofar as–
“(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
“(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
“(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
“(D) all the members present at the time the vote is taken concur in the sentence of death.

It is clear that subsequent to a guilty plea, a finding of guilty by a military judge is commensurate with a unanimous guilty verdict vote by a panel. If that were not true, then a military judge also may not assume lesser thresholds were meant should an accused plead guilty in order to impose any penalty requiring lesser minimums. For example, The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

Yet AG Holder is not arguing that a military judge does not have the authority to sentence Khalid Sheikh Mohammed or any of his four lieutenants to life imprisonment, should they plead guilty to charges carrying that as the maximum penalty, without the concurrence of “three-fourths of the members present.”

As Debra Burlingame stated back in April:

“Congress could clear up any ambiguity by amending the statute.” She added, “Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty.”

But let’s back up to the summer of 2009 when, after a 5-month review by the Department of Justice’s Task Force, the White House announced it would ask Congress to “fix” the Military Commissions Act. Why did they not state then that the death penalty verbiage needed fixing?

If they discovered a problem only after Congress passed legislation last year, then Mr. Holder should stop fear-mongering on TV and ask President Obama to ask Congress to again fix the MCA.

Update: During his November 18, 2009 appearance before the Senate Judiciary Committee, Holder gave no indication that the death penalty subsequent to a possible guilty plea in the bombing of the U.S.S. Cole might not be within the authority of a military judge:

“We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.”

Which prompts me to point out that just last week the Military Commissions at Gitmo were restarted, Ibrahim Ahmed Mahmoud al Qosi pleaded guilty to conspiracy and material support charges, and, according to the Department of Defense, procedures remain in place to impose the fullest sentence allowed by statute:

Al Qosi faces a maximum penalty of life in prison on the two charges, Iglesias said. His sentence will be determined by 12 military officers as part of the commission at an Aug. 9 sentencing hearing, he said.

So, why is it even an issue over whether a military judge may impose the death penalty, should Khalid Sheikh Mohammed plead guilty before a military commission, when his sentence would be decided by a 12-member panel and the MCA gives them full authority to determine his sentence? If, as Holder says, there is a “real problem,” he should spell it out to the President and Congress and they should plug the damn hole in the statute.

In addition, there has been no “swift and certain justice” for the Cole bombing that President Obama promised last year:

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’ ” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

At best, al-Nashiri was placed on the back burner of Guantanamo’s military commissions calendar.

Yet what if the answer to Commander Lippold’s question is elected and appointed government officials were hoping for a swarm of appeals over whether Constitutional rights attached to the case the moment al-Nashiri set foot on U.S. soil, those appeals would tie up the case for years, and ultimately the courts would destroy military commissions?

The President and Attorney General can begin to prove their words are their bonds by both restarting al-Nashiri’s military commission immediately, at Gitmo, and asking Congress to take any ambiguity out of the MCA before the summer recess begins.