Obama Should Be Using Military Courts to Try Terrorists
The news last week shows why the Obama administration threatens the nation's security by allowing its ideological purity to overcome the realities of the terrorism threat. Obama is committed to the notion that terrorism is best handled as a law enforcement matter; he feels that treating al Qaeda under the rules of war is illegitimate. How else to explain the administration's foolhardy and stubborn refusal to use military courts, rather than civilian courts, to try al Qaeda operatives?
Ghailani, believe it or not, was supposed to be an easy case to try in civilian courts. And the administration met with a predictable response from the federal courts. Federal judges do not understand the realities of the battlefield; they are familiar only with the rules of policing and law enforcement used against domestic criminals. It is no surprise that they will impose civilian rules on any trial and will cut the government no slack. They won't allow in any evidence that doesn't fit into standard civilian categories -- they will demand that evidence be brought from the battlefield just as it would be from a crime scene, and that all who testify have been willing or Mirandized.
This is why the Bush administration proposed military courts in the first place. Military courts have been long used -- by Washington, Jackson, Lincoln, and FDR -- by the United States to try war criminals. They have more flexible rules of evidence. Not, as the ACLUers say, because they make it easier to convict, but because they recognize the realities of warfare. Our troops' primary job is to find and kill the enemy, not collect evidence and interview witnesses. They can use information if it has a high degree of reliability, even if it doesn't meet the civilian rules.
Now some conservatives have had a chance of heart, and no longer support the military commissions that they once defended. But they are only succumbing to elite liberal opinion. Military commissions have a long history and better balance national security against civil liberties than civilian courts. In fact, they serve an important civil liberties purpose. If terrorists are tried in civilian court, and the rules of criminal trials and law enforcement are loosened in order to allow their conviction, then those changes will spread to garden variety, domestic criminal trials. Military trials will keep the demands of national security in the terrorism context from spreading to the rest of the criminal justice system.
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May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
I was disgusted by this story when I read it Wednesday, and immediately thought, "that settles it, John Yoo and Andy McCarthy are smarter than Eric Holder." No small amount of shock was involved.
I found this the most telling line from Judge Kaplan:
“But the Constitution is the rock upon which our nation rests,” he went on. “We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”
Nice, flowery words... which match the suicidal Obama/Holder position: "We must follow the Constitution when politically convenient, including when trying foreign terrorists questioned overseas to whom it was never meant to apply."
It's also interesting how NYT plays up the fact that the case wasn't thrown out for being insufficiently speedy - as if that ruling in favor of the prosecution proves Kaplan is fair and reasonable.
Re: Obama Should Be Using Military Courts to Try Terrorists
Everything that you say on this matter, John, is right.
Aug '10
Re: Obama Should Be Using Military Courts to Try Terrorists
This point sounds obvious enough once you state it, but it had never occurred to me before. Thanks.
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
But these defendants are repressed, misunderstood, tinted-skinned Muslims and those military commissions are so callous and imperialistic.
Aug '10
Re: Obama Should Be Using Military Courts to Try Terrorists
Why , oh why , do POTUS & AG want to make it easier for the people that have killed us ???? And the people that will try to kill us ??? I sure hope this is a puzzle not a problem. results the same
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
In fact, [military trials] serve an important civil liberties purpose. If terrorists are tried in civilian court, and the rules of criminal trials and law enforcement are loosened in order to allow their conviction, then those changes will spread to garden variety, domestic criminal trials. Military trials will keep the demands of national security in the terrorism context from spreading to the rest of the criminal justice system.
I've been waiting for years for someone to make this very point. Either we throw the cases, or we introduce a bunch a really bad evidentiary rules into the civilian court system.
But we proceed because this is the only bone Obama, having in effect endorsed Gitmo and secret warfare, can throw to the Glenn Greenwald wing of his Party.
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
You might not be far off. In the Black Panthers case, we all witnessed Holder let criminals go, though the case against them was rock solid, only because they are black. It is reasonable to believe Holder might be doing the same with terrorists because they are Muslim (which ranks higher in the liberal hierarchy of victimhood). The President might view such an action as diplomacy.
Yes, it is also possible, perhaps probable, that the move to civilian courts represents a belief that terrorism is a criminal act, rather than an act of war (even though the intended victim is obviously not persons, but an entire society). But President Obama and his ilk have been proving for two years that they love America only as a dream of what may be. And don't forget the President's association with Bill Ayers. It's possible they mean to lose this trial.
Unbelievable? How many unbelievable things have happened under this administration?
Sep '10
Re: Obama Should Be Using Military Courts to Try Terrorists
Professor Yoo, I'd like to hear your thoughts on the case that gave Gitmo detainees Habeas Corpus rights. I can't remember how the case was styled. (And I'm too lazy to google it) I'm not a legal expert but I believe its the worst Supreme Court decision since Dred Scott.
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
After all information of value has been extracted, they should be disappeared.
Jul '10
Re: Obama Should Be Using Military Courts to Try Terrorists
Mr. Yoo, you are right on the money (as usual).
In my own simple minded little way, I just do not get the concept the adminstration is peddling here. A guy who commits an act of war against U.S. facilities overseas, somehow gets the rights and privileges of a U.S. citizen who has committed a domestic felony. Huh?????
Not only is it completely unnecessary, it - as pointed out by you and others above - has the potential to seriously contaminate exactly that precious system that protects you and me.
Andy McCarthy has a great piece up at NRO today, in which he has this to say
"as Justice Robert Jackson later stated it with eloquence: “Put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.”
Exactly. Under no circumstances will the adminstration allow this guy go go free. That exposes this mess as the profound corruption it is.
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
But, we're not at war. There is no more GWOT, just a few miscellaneous police actions misguidedly entered into by the last administration (eager to feed our money to Halliburton).
Refer the problem to the UN General Assembly. They'll help us out.
Meanwhile, we use that magnificent system of American criminal justice on these occasional lawbreakers, because the 4th and 5th Amendments are our only protection from the fascist right-wing government.
May '10
Re: Obama Should Be Using Military Courts to Try Terrorists
I suggest we start a John Yoo Fan Club and we call it Yoo's Guys.
Sorry, John
Aug '10
Re: Obama Should Be Using Military Courts to Try Terrorists
It appears Lincoln was wrong, the Constitution IS a suicide pact.
Edited on Oct 10, 2010 at 4:04amOct '10
Re: Obama Should Be Using Military Courts to Try Terrorists
" ideological purity"....it just seems so funny to call it that esp when it has to do with our constitution