9 search results for "lawfare"

Justice Scalia: Hamdan SCOTUS majority ‘were just kidding’ both political branches

The following is Part I of Supreme Court Justice Anthony Scalia’s dissenting opinion to today’s ruling in Boumediene v. Bush [and joined by Chief Justice Roberts, Justice Thomas, and Justice Alito]. It turns out that the majority of the Supreme Court that decided Hamdan v. Rumsfeld “were just kidding” when they ruled the political branches should set up the review process for determining what detainees to hold or release:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows.

My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” … Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

Binalshibh admits 9/11 guilt but how did Khalid Sheikh Mohammed et al plead?

At his arraignment Thursday, Ramzi Binalshibh admitted he committed an overt act in the 9/11 attack plot:

“I’ve been seeking martyrdom for five years. I tried to get a visa for 9/11, but I could not,” said [Ramzi] Binalshibh, who was a member of the German-based Hamburg cell of Al-Qaeda which planned and then carried out the attacks.

A native of Yemen, Binalshibh shared a Hamburg apartment with Mohammed Atta, a key leader of the 19 hijackers who took over four planes on the day to use as weapons, but unlike Atta and the others, he was unable to get a US visa. — Agence Free Presse (France)

Yet I looked through dozens of news reports and commentaries before determining how he and co-defendants Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi pled to the charges and specifications against them.

As former federal prosecutor, Andrew C. McCarthy noted Friday in the National Review Online:

“…the media leave us in the dark about that detail. It went unreported in breathless on-sight accounts from the New York Times, the Washington Post and the Associated Press. Instead, reporters give us dark reminders that KSM was held for years in secret CIA prisons — secret, at least, until the press exposed their existence. (Have I mentioned that he killed almost 3,000 Americans on one day?) The “black sites” may be an interesting subject, but they’re irrelevant to an arraignment. (Fear not, MSNBC: There will be plenty of time between now and the trial for jihadists and their sympathizers to contend that abusive interrogations and harrowing incarcerations should result in the suppression of evidence or the dismissal of charges).”

I wasn’t there, but we can safely assume there were no guilty pleas — the combatants, who apparently read the newspapers, are taking the tack that the commissions are illegitimate. Whether they actually entered formal not guilty pleas is unclear from the reporting, which focused instead on KSM’s courtroom antics. (We’ll come to those momentarily). Procedurally, the matter is of little moment: If getting straight answers from defendants is a problem, as it appeared to be in Thursday’s occasionally chaotic session, judges typically order that pleas of not guilty be entered for the record.

[Editor — McCarthy was the lead prosecutor of the ‘Blind Sheik’ and those who conducted the first attack upon the World Trade Center.]

It took me more than two hours online to find out how they pled — they did not.

Instead, Khalid Sheikh Mohammed et al staged one last act (for that day) of al Qaeda lawfare against the United States of America:

The session concluded with a formal reading of the charges, in which the chief prosecutor, Bob Swann, coldly read out the highlights: that the defendants did commit murder “in the violation of the laws of war” that led to the deaths of 2,970 people. The judge then asked the defendants to rise for the formal arraignment: All five remained seated. The judge then said he would defer their entering of pleas to a later date. — Michael Isikoff and Mark Hosenball, for Newsweek, in their [4-page, 1,736 word] article’s last paragraph

The mainstream media is so engrossed with repeating al Qaeda’s propaganda they all but forgot to mention an important fact about Thursday’s arraignment. Two reporters seemingly wrote the lone exception only because they had room left on the page. Yet even they failed to correctly state the number murdered: 2,973.