Military Commissions

9/11, al Qaeda, Khalid Sheikh Mohammed, Military Commissions

Former military commission judge Keith Allred: ‘Military Commissions: The Right Venue for KSM’

by  • 

Keith J. Allred presided over the military commission trial of Salem Hamdan. His piece on military commissions is the lead commentary in this morning’s Wall Street Journal. Mr. Allred points out the greatest harm, should Khalid Sheikh Mohammed and his fellow co-conspirators be tried in federal court.

Unlawful combatants are entitled to be tried in a forum that meets the standards of the Geneva Conventions Common Article 3: a “regularly constituted court that afford[s] all the judicial guarantees … recognized as indispensable by civilized peoples.” A military commission meets this standard, and trying unlawful combatants in a military commission advances important national interests in encouraging compliance with the laws of armed conflict.

Much has been said to impugn the military commissions as unfair, inadequate forums for the trials of these and other unlawful combatants. But the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants. Congress understood this scheme when it established military commissions to try unprivileged belligerents, as contemplated by Common Article 3. Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war. [emphasis added mine] This is a dangerous precedent, and there is no need for it.
…
The president has suggested we need these trials in federal court because Guantanamo Bay has left a sour taste in the mouths of some of our allies. Even if this is true, selecting a few defendants to be tried elsewhere will not change that perception. But giving civilian trials to these worst-of-the-worst unlawful combatants upsets the important and longstanding Geneva scheme for encouraging compliance with the laws of war. … READ THE REST

Providing war criminals with Constitutional protections undermines the Geneva Conventions and rewards terrorists for targeting civilians; al Qaeda targeted civilians on 9/11. Unnecessarily affording unlawful enemy combatants with a federal trial increases the danger to civilian non-combatants.

9/11, al Qaeda, Barack Obama, Eric Holder, Guantanamo, Keep America Safe, Military Commissions

The ‘Al Qaeda Seven’ should testify before the Senate this Friday

by  • 

The critics of last week’s Keep America Safe ‘Al Qaeda Seven’ ad missed the point.

We believe the American people should be told if current DOJ lawyers once freely defended enemy belligerents, advocated for providing them full due process, and are now making detention and prosecution recommendations to President Obama and Attorney General Eric Holder.

Instead, the critics attacked the messenger, Liz Cheney .

It somewhat reminded me of March 13, 2007, when the ACLU released a statement that, in part, reads as follows:

“Congress made a mistake when they supported the MCA in 2006. But the ultimate responsibility lies with us, the people. We know what America stands for, at home and abroad. We have the power and the obligation to call on Congress to correct its mistake and restore habeas corpus and all the constitutional and due process rights they took away.”

Took what, when, and from whom?

This coming Friday, March 12, Holder is again scheduled to testify before the Senate Judiciary Committee. He should bring with him those DOJ lawyers and advocates. There is no use asking them the details of the advice they gave concerning where to prosecute Khalid Shiekh Mohammed for the 9/11 attacks; they will only go off on dissertations about lawyer-client privilege, executive privilege, and run out the 5 to 7 minutes of each Senator’s time. Instead, the Senators should ask the DOJ’s top advisers some direct questions:

1) Yes or no: We owe more legal protection to unlawful belligerents than to lawful belligerents?

2) Yes or no: As civilians were primarily targeted that day, would the 9/11 attacks have been a war crime had they been conducted by uniformed foreign soldiers, subsequent to their nation declaring war upon the United States?

3) Where in our Constitution are the avowed foreign enemies of the United States afforded rights, and

4) exactly who took those rights away from them and when were they taken? *

5) Did you recommend a military commission or a federal trial for the 9/11 conspirators?

Those are straightforward questions.

If the DOJ’s top folks can not get them right or if they avoid giving straightforward answers, each American can judge for themselves if those lawyers should be providing advice about our Nation’s defense.

——

* Note: For the benefit of any ACLU lawyer reading this at home, if they answer # 3 correctly, there is no need to ask them # 4.