If Obama gives in on this, not only will we (DEMS) have ratified the Bush Cheney war crimes system, but Obama will have also undermined the legitimacy of ALL federal criminal trials .

You CANNOT politicize prosecutorial decisions–once you let that genie out of the bottle you can never got back

It’s done. It is gone. This was over with the passage of the MCA in late 2006 and then the PAA in 2007. All this crap now is just gilding the lilly.

From Spencer’s Washington Independent post on this topic:

“If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder told The New Yorker’s Jane Mayer, adding that he was “distressed” that people “who know better” were demagogically and speciously claiming civilian courts are incapable of trying terrorists.

Even if our federal courts actually are, or were, incapable of trying such suspects, the only thing such a fact argues for is that the nation ought to act to ensure – since we (including people who ought to know better, like former Marine Jim Webb) refuse to use our UCMJ-established, regularly-constituted, law-of-war military courts-martial for the purpose of trying alleged war criminals – that the courts of our independent judiciary are capable of trying such suspects, without needlessly and recklessly abandoning or marginalizing our Judicial Branch of government, as provided for in the Constitution, in the process.

So my question is this, for those apparently allergic to Article III courts:

What’s wrong, specifically, with making our current independent judiciary the “system” [since supposedly none exists today] “for trying terrorist suspects that can be embraced by the courts and by Congress?”

And why doesn’t the media ever ask that question of those actively working to undermine Article III courts? [As though there's another independent judiciary hidden somewhere in the Constitution that can do its indispensable job for it.]

There’s a damn sight more to this issue than the rate of convictions in trials conducted by our independent judiciary, and it’s about damn time that practitioners in that independent judicial system started saying so, and not just those among them who professionally defend suspects for a living. “Justice” is more than “convictions”; otherwise any old Kangaroo Court would do.

Repeating part of a comment I posted in Cynthia’s Seminal thread on the same subject:

If this threatened overruling by President Obama of the Justice Department’s exercise of prosecutorial independence, and straightforward application of the rule of law, actually happens (midnight massacre-style), this nation must demand a public examination by Congress of a way to remedy the dependent and compromised position of the Department of Justice within the Executive Branch of government, short of impeachment of the president, with a view to creating shared oversight and control of the DOJ by two or more branches of government to (re-)establish its independence from the President. Impeachment as the sole remedy for the abandonment of the faithful exercise of the rule of law by the President and our DOJ has obviously failed the nation, as a direct result of the corruption and undermining of Congress created by Party dominance of that institution. A Constitutional amendment, along with one to remedy the Citizens United decision, may very well be called for here.

Quoting from Page 136 [PDF Page 150 of 213] of last year’s report “Assessing Damage, Urging Action” by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the International Commission of Jurists (ICJ):

At the heart of the concept of the rule of law is the principle of an independent and impartial judiciary. Nothing less will ensure the proper separation of powers (as between the executive, legislature and judiciary) and ensure that everyone (victim, perpetrator, or member of the public) can be confident that his/her case will be dealt with in accordance with the law. An independent judiciary enforces the law without fear or favour.

Many witnesses to the Panel reported on their serious concerns about the creation of military or special courts to deal with terrorism. Military or special courts do not necessarily violate the principle of independence and impartiality, but they pose – both in principle and in practice – a grave risk. Accordingly, international law has been moving towards strict restrictions and even prohibitions on the use of either military or special courts to try civilians.357 Since concerns about their operation were brought to the attention of the Panel in several Hearings, there is a brief discussion of the dangers they can pose.

Military courts, including Courts Martial, are a recognised form of military justice, and there are a number of good reasons to have military courts deliver justice to members of the military for military offences. Many military courts [like our own UCMJ-governed courts-martial] merit a reputation for excellence. The situation is, however, very different when such military courts are called upon to try civilians for non-military offences. The military is a closed, hierarchical institution and it stresses loyalty to the institution. For the most part, judges in military courts are military officers, appointed by the executive, and subordinate to their superiors in the military hierarchy, even though they may be independent in exercising their judicial functions. Still, the manner in which such judges conduct trials may play a role (or be perceived as playing a role) in subsequent decisions about promotions, assignments and professional rewards. Accordingly, there has been a growing consensus at the international level that military courts should be used only for trying members of armed forces for offences of a military nature.358

[...]

The Panel notes, on the basis of its findings, that military and special court systems easily lead to abuse: the tribunals often fail to meet the requisite standard of independence and impartiality and do not offer due process guarantees. The temptation appears to be great to extend the system to try non-terrorist offences, because of the lower safeguards which make convictions easier. If the rationale for their use is that the ordinary criminal justice system is considered slow, inefficient or corrupt – the rationale most often proffered – it would surely be better to tackle these problems directly rather than create a parallel justice system with its own problems.

And from Page 123 [PDF Page 137 of 213]:

The Panel starts from the premise that all acts of terrorism are crimes (see Chapter One). Take away the terrorist label and these acts – murder, hostage-taking, hijacking, and violence against civilians – are all very serious criminal offences under any legal system. If the criminal justice system is inadequate to the new challenges posed, it must be made adequate.

In fact, it is a misconception that the law enforcement and criminal justice system is only or largely reactive. Conventional law enforcement work has a long history of tackling terrorist and other organised criminal networks and of conducting proactive investigations and prosecutions (including the use of informants) to prevent terrorist attacks before they are committed. At various Hearings, current and former prosecutors confirmed the preventive capacity of the criminal justice system, and practical examples abound of law enforcement interventions successfully preventing terrorist attacks. Of course, like all other crimes, a law enforcement model cannot tackle terrorism on its own; it must however be a key component within any counterterrorist programme.

The criminal justice system has evolved over the generations to ensure that innocent people are allowed to go free, guilty people are properly punished for their crimes, and society can rely confidently on the rule of law to protect it against wrongdoing. The system needs to be resourced to perform its functions effectively; it must not be undermined, as is often the case in connection with terrorism.

This nation must focus on bringing a halt to both Congressional and Executive efforts, aided by the national media, which are becoming increasingly ingrained, to undermine the absolutely-indispensable role of an independent judiciary [Judicial Branch of government] if we want the rule of law, not men, in this nation – whether that undermining is in service to selfish politics and Party, or merely fronting, as for Cheney & Graham & apparently Emanuel, for a seething hostility to the fundamental human and Constitutional rights and liberties that form the foundation of this nation and its (limited, accordingly) government.

[For an example of Congress and the Executive quietly working in tandem to undermine long-established safeguards for the rights of all persons accused and brought to trial before our independent judiciary, via military commissions (for non-citizens only, at least for now, whether genuine "armed conflict" fighters, or not, at the unchallenged whim of the President and his military chain of command), see this successful 2009 MCA rewording that created a cleverly-written loophole to allow coerced (in all but name) detainee statements into evidence in Guantanamo Military Commissions - where the Executive Branch alone is prosecutor, judge, jury and executioner.]

Damn, this is bad. I hope that you, Wheeler, bmaz, Kouril and everybody else keeps after it.

This is a great post. The only thing I would add is that we need to move past the wishful idea that we have one party that is hostile to the rule of law and civil liberties and one that supports it and defends it, however meekly. What we actually have is one party that is hostile to the rule of law and civil liberties, and one that is at best ambivalent about them, taken as a whole (it has some heroic champions, but they are balanced by some baddies just as bad as any in the other party, and the majority have no real commitment to the issue beyond the shifting politics of it). Right now we have a ConLaw professor for a president who I believe in my heart would like to do what is right, but is at the same time far too guided by pragmatism, and, yes, politics to really walk the straight line the issue requires on the merits. I don’t want to let people unduly off the hook, but I do think it is necessary to give some consideration to the political environment in which these actors — especially a president — must operate (granting entirely that they each play their own role in shaping that environment). There is something close to a one-and-a-third-to-half party consensus right now in a two-party system against the actions we here consider just unambiguously required by the Constitution. That is a historically depressing reality when you stop to think of it a second. But it is also the reality in which this president has to operate — and he’s a member of one of those parties to boot.

Don’t get me wrong: on the path he’s on, he’s going to go down as the guy who took a look at the Bush terrorism approach and said, “Well, except for the torture I don’t think we can really do much better.” But that will have been the result of forces acting on him as much as it will have been his own independent actions. The failure to transcend.

Not to assume anyone particularly cares about my view, but let me just preempt one response to what I’ve written ( or more corretly, addend to what I’ve written the following, as I think it would be a fair response): by pointing out the thick political morass in which these decisions are made, i don’t mean to defend this (potential) decision as a political decision any more than i do as a legal one. This TPM post nails down the backwardness of the thinking, and I associate myself with David Kurtz;s analysis there. But good political decisions aren’t always easy political decisions. This is clearly a case where showing a bit of spine in the short term would have enormous political benefits in the long run, but for reasons I fail to understand it appears the spine in question is going to give like Jell-O to the political pressures of the moment. I think they could find the resolve to make the right move here. But in saying that I think it is important not to dismiss the strength of the political current running in the opposite direction at this time. It would have taken considerable political fortitude to have seen this decision to its conclusion through the unceasing resistance it would have faced at every turn.

It is also worth pointing out that, though ultimately blame lies with the administration for not doing the right thing (renouncing MCs and moving to federal or UCMJ trial or release of all detaiees forthwith), the administration ultimately had little reason to stick with its use of Art. III courts in the cases it chose to pursue them, because it received no blessing nor indeed credit from its most vocal civil libertarian critics for that decision (again, with justification). One could equally say — as those critics did — that because the initial decision (some civ trials, some MCs) was not based in the legal specifics of each case, it was never going to withstand the political pressure it would come under to be reversed.

Here’s how Glenn Greenwald puts it, and I think it’s worth saying how I place myself within his construct:

First, although they will try, it will be extremely difficult even for his most devoted loyalists to deny the fundamental cowardice of Barack Obama.

I’m not sure if what I’ve written can be said to deny Barack Obama’s fundamental cowardice, but by no means do I think it would be fair to say that I have here denied his cowardice in this matter. But let me say to be clear: if Obama reverses Holder on this decision, it will be cowardice. It is not denial of cowardice to point out that it has been revealed in the face of a challenge, a threat even, that is in fact daunting, which is the point I have been attempting to make while stopping short of a defense or apologia.

This guy‘s with me.

I think this column fairly summarizes the core issues at hand (at least as the Obama administration has communicated it), however you make some erroneous assumptions.

1. No torture ever took place at GITMO. I understand you may disagree with this, but even Obama has been careful to distinguish between “torture” and “waterboarding” (see his national security speech dated 21 May 2009).

2. The military-tribunal system that was leftover from the Bush admin was ultimately approved by the SCOTUS and even Senator Obama didn’t have a problem with it, as long as the detainees were granted habeas corpus (which is really a separate issue from the tribunals).

If you’re willing to set aside the torture/waterboarding question for a moment, then you’re left with the dilemma of granting habeas corpus to detainees who constitute a clear threat to the USA but who you could not convict in a US federal court. For example, what should the US do with a detainee whom al Qaeda trained in nuclear explosives as well as dirty bombs, but who also could create a reasonable doubt in a US court of law? Do you free them on principle — or do you detain them to prevent them from attacking Americans?

Obama noted this dilemma in his 21 May 2009 speech, saying that there were no easy answers, which is another way of saying that he had to swallow his principles in the interest of protecting the American people, because it would be impossible to justify releasing these individuals given the enormous damage they could cause and probably would attempt to cause.

So this is the first question that must be answered by those who would see a more “civil” approach to handling terrorists — what do you do with those people who may not have committed an atrocity but who intend to commit one and who possess the ability to commit one? And when you answer this question, you’ll see that American is at war and that the category “enemy combatant” makes perfect sense.

Thanks!

Get tough or die, politically speaking.

The odds favor the latter.

No lesser authority than the Convening Authority for the Gitmo Military Commissions has said torture occurred at Gitmo.

So, uh, you’re just flat out wrong on that count.

In response to mythomsongitmo @ 9, you present a false choice based on the inability of Our Beloved Leaders to address Root Causes.

It’s: Innocent or Guilty.
Not: Innocent, Guilty, and suspect.

An “enemy combatant” is a fancy way of saying suspect.

The category of suspect will grown and consume the others. Al will become suspect, and because the penalties for being a suspect is worse than guilty, why even have trials?

Dissent make one suspect. This we know from our Governments behavior in the past.

This is the apparatus of a totalitarian state, an absolute kingdom, fascist or communist state.

In this case of the US, the apparatus is based on having made enemies of billions of Muslims, some of whom are prepared to act, by supporting inequality and apartheid (brought into focus by Carter) in Israel.

All is left is to speculate on the speed at which the Judiciary will wither and become unimportant.

# 1 until the missing thoraxes are returned and examined you should withhold judgment on weather torture occurred. Quite a broad statement about that sticky torture thing, once loosed it’s not easy to put back in it’s box.
That’s the point it’s anywhere and therefore everywhere.

What we are being served is, imo, exactly what the economic elites need to buttress their ill begotten gains against the rising probability of domestic dissent.

Please, Obama was never a ConLaw professor, just a measly lecturer.

If a Democrat proposed the Republican party’s eact platform, they’d reject and revile it. They do not want to allow any Democrat any claim to accomplishment. Their tactic is “obstruction” in the strictest sense of that term.

that’s quite a mouthful there. quite a load.

I’m almost beginning to wish that Attorney General Lindsay Graham and Defense Secretary Joe Lieberman were trying to get support for President John McCain’s detainee, torture, and Gitmo policies from Senators Barack Obama and Joe Biden so they wouldn’t vote to shut down funding for those policies.

Would America be better off?

A good or bad load?

that’s about right.

neither good nor bad, merely a bunch of not fully digested stuff.

Obama wants to leave behind a system for trying terrorist suspects that can be embraced by the courts and by Congress. To create a new, stable consensus that everyone can embrace.

I seriously doubt this. Obama always starts out giving 2/3 of the farm away to conservatives and then negotiates the remaining third away. This isn’t cowardice. It’s standing operating procedure. So if everyone existed on a spectrum from the right to the far right, maybe everyone could embrace his final sellout. I don’t see anyone on the center-left being happy with Obama’s efforts to ratchet away major chunks of our Constitution or accepting the substitution of kangaroo military commissions for Article III courts.

2. The military-tribunal system that was leftover from the Bush admin was ultimately approved by the SCOTUS…

Where and when last year, exactly, did the Supreme Court do that, ‘mythoms on gitmo’? [And did it cause them to thus revoke their 2008 decision that a challenged portion of the Congressional/Presidential 2006 MCA - that tried to remove the right to habeas corpus review for Guantanamo detainees - was UnConstitutional?]

…then you’re left with the dilemma of granting habeas corpus to detainees who constitute a clear threat to the USA…

And how, exactly, do you know that we’re “left” with “detainees who constitute a clear threat to the USA” if no independent judiciary, or even military law-of-war court-martial, is to be allowed to examine such an assertion by state secrets-hoarding Executive Branch officials? [Applying a much, much, lower standard to adjudicate the right to merely detain armed conflict fighters (for the duration of conflict), most Guantanamo detainees whose habeas appeal merits have finally, glacially started reaching the courtrooms of federal district judges since June, 2008 have nevertheless been ordered released by those judges, despite the Executive Branch fighting every inch of the way to continue imprisoning those individuals.]

For example, what should the US do with a detainee whom al Qaeda trained in nuclear explosives as well as dirty bombs, but who also could create a reasonable doubt in a US court of law? Do you free them on principle — or do you detain them to prevent them from attacking Americans?

[...]

…because it would be impossible to justify releasing these individuals given the enormous damage they could cause and probably would attempt to cause.

So this is the first question that must be answered by those who would see a more “civil” approach to handling terrorists — what do you do with those people who may not have committed an atrocity but who intend to commit one and who possess the ability to commit one?

What do we do with all the suspected Mob bosses and/or drug kingpins walking the streets in this country (many of whom we are legally actively collecting intelligence about and monitoring)? Why aren’t we – either military police authorities or civilian police authorities – detaining and never releasing them [besides the fact that right now the military powers do it because they can without immediate intervention by the Judicial Branch, while the civilian powers can't avoid immediate Judicial Branch scrutiny and pushback]? What’s the principled distinction between those categories of threatening individuals? Where is the line drawn, and by whom?

…you’ll see that America is at war and that the category “enemy combatant” makes perfect sense.

“Makes perfect sense” in what context, and for whom?

In the context of detaining properly-classified POWs for the duration of an armed conflict? Or in the context of utilitizing UCMJ-created military courts-martial for POW war crime suspects? For anyone the President or one of his military commanders decides to finger, unchallenged and unreviewed? Or just for those individuals caught actually engaging in activity that the Congress issued an AUMF to violently confront and overcome, as determined by a fair and immediate post-capture (Geneva Convention Article 5-compliant) hearing? [Thanks to the original absence and/or rigged process of such hearings (paired with the bounty-bought kidnapping of many of our detainees), federal judges in the D.C. District are now, years late, having to pinch-hit for the military, and in the process have discovered to date dozens of individuals (in addition to the hundreds already released during the Bush presidency) who were deprived of their liberty for years by our military without legitimate cause - and without consequence to our military chain of command, so far, thanks to our corrupt and Party-strangled Congress.]

Is trusting implicitly in unchallenged and unmonitored authority figures – perhaps especially those wearing uniforms – all it takes to cause you to willingly abandon your fate, your responsibilities as a citizen, and our liberty, to unknown individuals wielding the police powers of our federal Executive Branch however they please, behind closed and locked office and prison doors, and within isolated and heavily-barricaded military bases, unquestioned and unhindered by Judicial Branch jurisdiction?

Book Salon up at the Mothership with Frank Schaeffer’s Patience with God: Faith for People Who Don’t Like Religion (or Atheism) hosted by Peterr

EmptyWheel,

Regarding torture at GITMO: My apologies for not being clearer. Though I did not write this, I meant to say that the US did not practice torture proper as a matter of policy at GITMO. I am aware of the WaPo piece and I note that the incident was brought to the public’s attention by the Bush admin. One incident, however, does not a policy make.

Synoia,

You are wrong. “Enemy combatant” is a legal term with a legal definition.

Tjbs,

You are privy to information unknown to me. I welcome enlightenment.

PowWow,

The military tribunal system has successfully tried three terrorists since SCOTUS insured the right of habeas corpus for detainees (see Obama’s speech dated 21 May 2009). This is exactly three more cases than was the case on September 28, 2006, when Obama argued for habeas corpus before the Senate.

Your second paragraph asks a loaded question and I will not grant your assumption. So I’ll try it from another angle: We are at war with radical Islam. Put another way, radical Islam has declared war against the USA. And when enemy combatants for radical Islam slip into the US with the plain intent of killing civilians (such as the Christmas Day bomber), it is the responsibility of the US government to capture & detain these enemies, in order to protect innocent lives. Furthermore, if the detainee gives US intelligence actionable intel vis-à-vis pending attacks, it is the responsibility of the government to act on that intel, which may require grabbing someone before they act.

Now, persons in this category present a real problem to the likes of Synoia, because Synoia has only two categories — innocent & guilty — and he/she does not recognize “enemy combatant.” I suppose Synoia would have a much different position if the enemy combatant had planned to detonate a dirty bomb near Synoia’s home. But I digress. The point is that, like it or not, regular rules don’t apply when your enemy has no boundaries. And if you don’t believe me, just look at this video and tell me exactly how society in general should deal with the KSMs of the world. Should we wait for them to commit their atrocities or should grab, detain, and interrogate them, in order to protect innocent life?

The military tribunal system has successfully tried three terrorists since [June, 2008] SCOTUS insured the right of habeas corpus for detainees (see Obama’s speech dated 21 May 2009).

That’s false.

The first defendant (David Hicks) “successfully tried” by the Military Commissions established under the 2006 Military Commissions Act (a “military tribunal” court system Congressionally-created years after all three defendants had been captured) was already charged, sent to Australia to serve his plea-deal “sentence” and released by the end of 2007. [See the factual record, instead of carefully-spun sales pitches by the President.]

The MCA was among the last pieces of legislation the Senate enacted before adjourning to campaign for re-election in 2006 (the MCA was signed into law on October 17, 2006), and thus, obviously, no one could have been tried under it before then, which you seem not to realize by saying “This is exactly three more cases than was the case on September 28, 2006, when Obama [unsuccessfully] argued for [retaining the right to] habeas corpus [in the pending 2006 MCA] before the Senate.”

The MCA was created by Congress and the President to try to resurrect the patently-unConstitutional “military commissions” that President Bush had unilaterally created and operated until the Supreme Court finally put a stop to them on June, 29, 2006 in Hamdan v. Rumsfeld.

The same man (whose case brought an end to all prosecutions under the unilateral Bush Military Commissions in mid-2006) is one of the other two formal 2006 MCA defendants you reference (Salim Ahmed Hamdan, a citizen of Yemen); he was found guilty in early August, 2008:

On May 10, 2007, the Convening Authority referred a second set of charges against Hamdan — this time under the 2006 MCA — for conspiracy and providing material support for terrorism. On June 4, 2007, however, the presiding judge, U.S. Navy Captain Keith J. Allred, dismissed the charges for lack of jurisdiction because Hamdan had not been designated an “unlawful enemy combatant” by the CSRT in 2004. The CSRT had found that Hamdan was an “enemy combatant,” but it had not determined whether Hamdan was a “lawful” or “unlawful” combatant.

Shortly thereafter, the government moved to reconsider Captain Allred’s decision. In October 2007, relying on a ruling in another case by the Court of Military Commission Review (“CMCR”) holding that military commission judges are authorized to make enemy combatant designations, Captain Allred accepted the government’s request and agreed to reconsider the jurisdictional issue.

Proceedings against Hamdan continued in December 2007, when the defense moved for an Article 5 hearing under the Geneva Conventions to determine whether Hamdan qualified for Prisoner of War (“POW”) status. Captain Allred took the defense request for an Article 5 hearing under consideration, but moved forward on the jurisdictional issue, holding an evidentiary hearing on the question of whether Hamdan qualified as an “unlawful enemy combatant.” Several witnesses testified at the hearing, including an FBI agent who stated that Hamdan had admitted during FBI interrogations to having served as bin Laden’s driver. No evidence was presented showing that Hamdan had any operational knowledge of the USS Cole bombing, the Kenya embassy bombings, or the attacks of September 11.

In a written decision on December 17, 2007, Captain Allred made a procedural ruling in favor of the defense, finding that Hamdan was entitled to an Article 5 hearing and that the CSRT’s “enemy combatant” determination was no substitute for that hearing. On December 19, however, Captain Allred ruled against the defense on the substantive issue, finding that Hamdan was not a lawful combatant and therefore not entitled to POW status. Captain Allred further found that the government had carried its burden of proving that Hamdan is an “unlawful enemy combatant.” On that basis, he denied the defense motion to dismiss for lack of jurisdiction and held that the military commission proceedings could continue.

[...]

At additional pretrial hearings on April 28, 2008, the defense moved to dismiss Hamdan’s case based on unlawful command influence. Defense counsel called former chief prosecutor Col. Morris Davis to testify. Col. Davis served as the chief prosecutor until October 2007 when he resigned in protest. On the stand, Col. Davis criticized the government’s apparent willingness to rely on tortured evidence, and he stated that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and the members of his staff. During these same hearings, Hamdan repeatedly asserted that changes made to the military commissions system had the effect of circumventing his legal victories and emphasized the system’s lack of integrity. He eventually boycotted the proceedings altogether by refusing to return to the courtroom.

[...]

On Friday August 1, KSM submitted a four-page written statement that Hamdan “was not a soldier, he was a driver,” and countered statements made by Hamdan’s interrogators regarding Hamdan’s level of involvement in the plans for the September 11 attacks. “His nature was more primitive (Bedouin) person and far from civilization. He was not fit to plan or execute,” KSM asserted. In written testimony, Bin Attash echoed these statements, saying he knew Hamdan “was not involved in the implementation of any attack.” The defense team rested its case on Friday and closing arguments were set for Monday.

In closing arguments on August 4, the defense reminded jurors to “look at the information Hamdan provided to the United States when it mattered most” and suggested that Hamdan had offered to help U.S. forces in Afghanistan and that the government had squandered these opportunities. In his instructions, Judge Allred told the jurors that they should decide for themselves when the armed conflict between the United States and al Qaeda began. The jury, composed of a Navy captain, two colonels and three lieutenant colonels from the Army, Air Force and Marines, began to deliberate late on August 4.

After 6½ hours of deliberation, the jury announced its verdict on the morning of Wednesday, August 6: it found Hamdan guilty of multiple counts of providing material support for terror but cleared him of the crime of conspiracy. A jury then sentenced Hamdan to five-and-a-half years. Hamdan had already served more than five years in detention, so he was returned to his home country of Yemen on November 25 to serve the last month of his sentence. He was released by Yemeni authorities on January 12, 2009.

The third formal 2006 MCA commission defendant referenced (Ali Hamza al-Bahlul, also a citizen of Yemen) was found guilty in early November, 2008:

Charges were referred against al Bahlul for the second time on February 26, 2008.

Al Bahlul’s arraignment was held in May 2008. At the hearing, al Bahlul announced that he did not recognize the legitimacy of the court and that he intended to boycott the proceedings. He also rejected his lawyers, refused to enter a plea or otherwise represent himself, and said that he would not dispute any of the charges brought against him.

Al Bahlul appeared for a pretrial hearing on August 15, 2008. During the hearing, he asked Air Force Col. Ronald Gregory, a new military judge presiding over his case, to allow him to return to his cell, saying that he only wished to return to the court for sentencing. Al Bahlul also requested that Judge Gregory withdraw his habeas petition from federal court and grant him a speedy military commission trial. Al Bahlul prohibited his Pentagon-appointed attorney, Air Force Reserve Major David Frakt, from doing any work on his behalf. Frakt waived all pretrial motions and said that he would not request any additional discovery documents.

Al Bahlul appeared for another hearing on September 24, 2008. He entered a not guilty plea to conspiring with al Qaeda. He said that he would attend his trial, but he again prohibited Frakt from mounting a defense on his behalf.

On November 3, 2008, al Bahlul was convicted to life in prison on terrorism charges. During his week-long military commission trial, al-Bahlul refused to participate.

Thus, two of the only three men who have been found guilty by the (Constitutionally-suspect 2006 MCA) Military Commissions (out of hundreds of captives detained at Guantanamo) during the Bush Presidency (or since) were free men abroad by the time President Obama took office. That reality doesn’t exactly square with your ‘lock ‘em up and throw away the key’ (on the President’s say-so alone) world view expressed here:

…then you’re left with the dilemma of granting habeas corpus to detainees who constitute a clear threat to the USA…

[...]

Do you free them on principle — or do you detain them to prevent them from attacking Americans?

[...]

…because it would be impossible to justify releasing these individuals given the enormous damage they could cause and probably would attempt to cause.

So this is the first question that must be answered by those who would see a more “civil” approach to handling terrorists — what do you do with those people who may not have committed an atrocity but who intend to commit one and who possess the ability to commit one?

But none of that’s what you were discussing, nor what I was responding to in your comment @ 9, when you flatly stated (and failed to back up when challenged):

2. The military-tribunal system that was leftover from the Bush admin was ultimately approved by the SCOTUS…

[Because the reinstatement of habeas corpus by the Supreme Court in June, 2008, after our other two branches of government colluded to take it away from all Guantanamo captives in the 2006 MCA, has nothing to do with the Constitutionality, or lack thereof, of the rest of the 2006 Military Commissions Act, and the proceedings thereunder; as recent Mandamus appeals in federal court by two of the 9/11 Five, and others, that I linked here, make clear.]

So I’ll try it from another angle: We are at war with radical Islam. Put another way, radical Islam has declared war against the USA.

Who’s “we” in that sentence?? Because it sure as hell isn’t the United States Congress, or the people of this nation it represents, regardless of what your formless, shapeless “radical Islam” may have “declared” against us somewhere. Those against whom we are actually “at war,” according to the only Congressional authorization that counts in this question – the 2001 AUMF – are only those individuals and organizations directly responsible for, or associated with, the perpetration of the attacks of 9/11/2001. [Read the AUMF and see for yourself.]

The rest of that statement is pure Hollywood fantasy, akin to the make-believe fight against the many dreaded “worst of the worst” helplessly caged on a tip of Cuba, who were never anything but innocent foreigners speaking an unfamiliar foreign tongue who were kidnapped in our ‘bribes for prisoners’ campaign in Afghanistan.

The point is that, like it or not, regular rules don’t apply when your enemy has no boundaries.

Where were the boundaries of conduct for the heavily-mechanized and exceedingly-destructive war machine controlled by the sociopathic NAZI leadership, exactly, and did we and our allies make sure to copy the extremes of that leadership right behind them, in order to defeat them?

If you think abandoning the rule of law is necessary to save your life, or those of others, in a particular crisis, abandon it, and then plead your case, and throw yourself on the mercy of the court (or the president’s pardon power), accordingly – and the verdict may well go easy on the consequences for your actions, if they’re deemed to have been justified. But spare us your foolish, hyperventilating desire to recklessly destroy so much of what has made this nation what it is after centuries of careful and difficult, if halting, progress – including the sacrifice of the lives of those Americans who fought the NAZIs without becoming NAZIs themselves – solely in the name of…seemingly too much television fiction, or else please go enlist with your kindred spirits in “radical Islam,” wherever that may be. America is far more and far better than some trashy Hollywood plot.

PowWow,

Thank you for your thoughtful response, though I’m a little amused by your delineation of the “facts.” First you deny that military tribunal system has successfully tried three terrorists and second you list the names of three detainees who the military tribunal system successfully tried. It’s possible this is because I’m not writing clearly but it’s more likely that you’re misreading me.

Now, the meaning of “war” is the core issue where we apparently disagree, and it is absolutely the core issue on which every other disagreement pivots. You are correct that the scope of the AUMF is limited to the culprits behind the 9/11 attack, but that’s just another way of saying that the AUMF authorizes the president to use all necessary and appropriate force to destroy al Qaeda, which is where the tensions begin. This is an unconventional war because our enemy has no geographic boundaries. Unlike a conventional war where Congress can declare war against a nation, our enemy is not united by nationality — they are united by religion, a religion that obligates them to kill us — the infidels.

In plain English, this means that no matter how well intentioned you may be toward Islam, these enemy combatants would cut your throat and decapitate your head faster than you can say Daniel Pearl. To be sure, no matter how much you may publically disavow the US government for its alleged collusions and illegalities, these guys don’t give a rip. They’d still kill you in a heartbeat simply because you don’t bend your knee to Allah. This fact is critical for you to understand because when you finally grasp it, you will realize that it has forced the United States government to make some extremely difficult choices.

So technically the United States of America is at war with radical Islam. Or as I said before, “we” are at war with radical Islam, assuming you are a US citizen. It is a de facto war, whether you like it or not. And just in case you doubt it, which appears to be the case, al Qaeda has declared war on the United States of America, through its many spokespersons. This explains 9/11 as well as every other terrorist attack before and since then.

So how does the US government fight a war against al Qaeda when none of the founding fathers ever contemplated this kind of situation? How do you stop an enemy who has no geographical boundaries, no laws, no ability or willingness to negotiate, and no limit to their resolve to kill you?