Dealing Away Civilian Law

In her piece on Holder’s efforts to uphold the rule of law last week, Jane Mayer explained that Rahm Emanuel opposed the idea of civilian trials for the 9/11 plotters because it would piss off Lindsey Graham.

Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

Josh Gerstein has two pieces (one, two)–elaborating on the WaPo’s piece this morning–describing the degree to which the Administration may well be in the process of dealing away civilian trials in exchange for Lindsey Graham’s love (and with it, a means to close Gitmo, Rahm believes).

Josh has the full quote of something Holder said to the WaPo, which seems to show Holder setting up a rationale for using military commissions.

WaPo: When you talk about the symbolic nature of such a trial, both to al Qaeda and maybe as importantly to the allies and to the nation having gone through what it has gone through for 10 years – 8 years, is it eroded somewhat if this trial winds up happening on a military base or in a federal prison complex instead of a federal courthouse?

AG: No, I don’t think so. I think that at the end of the day whether, wherever this case is tried, whatever forum, what we have to ensure is that it is done in as transparent a way as possible with as close as is possible adherence to the rules that we traditionally use in criminal cases. And if we do that, I’m not sure that the location or even ultimately the forum is going to be as important as what it is the world sees when whoever it is stands up and says I represent the United States, what the world sees in that proceeding.

WaPo: Is that an opening to say this may not be an article III court trial after all?

AG: I expect it’s going to be in article III court but what I’m saying is that if for whatever reason, I don’t know what it would be, but if for whatever reason it ended up as a military commission trial, given the reformed status of those military commissions, I think that we could have a trial that would be, that would stand up to the test that I was talking about before, in terms of transparency, adherence to the traditions that we have a nation. I continue to think though that this case, to bring the strongest case, there are reasons why you want to bring it in an article III setting. [my emphasis]

And against the background of Holder seeming to cede on the issue of civilian trials, Josh describes Lindsey Graham meeting with Rahm on this issue.

Sen. Lindsey Graham (R-S.C.) has told colleagues that he’s negotiating with the White House over legislation aimed at heading off the possibility of civilian criminal trials for suspects in the Sept. 11 attacks, according to congressional sources.

Graham met White House chief of staff Rahm Emanuel last week to discuss the issue, sources said.

[snip]

Several leaders of groups who favor civilian trials said they were aware that Graham was in discussions with the White House about a legislative proposal that would effectively force the Sept. 11 suspects into military courts by barring civilian trials. The proposal failed on a 54-45 vote in November, but Graham and other senators held a news conference last week vowing to introduce the measure again in the near future.

So among all the other reporting on Rahm’s central position on issues best left to the Attorney General, it appears he’s trying to craft a deal with Lindsey Graham on where and how to try Khalid Sheikh Mohammed.

Remind me. Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

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  1. PJEvans says:

    Why is Rahm involved in policy issues?

    Shouldn’t jobs involving policy-making require Senate confirmation?

    Is Rahm impeachable, or do we have to find a prosecutor with enough guts to indict the [email protected]#$%&^*(?

      • MadDog says:

        I’m guessing the answer is “no”.

        From Article II, Section 4 of the Constitution:

        …The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors…

        (My Bold)

        From Wiki on Impeachment:

        Officials subject to impeachment

        The central question regarding the Constitutional dispute about the impeachment of members of the legislature is whether members of Congress are “officers” of the United States. The Constitution grants the House the power to impeach “The President, the Vice President, and all civil Officers of the United States.” [3] Many believe firmly that members of Congress are not officers of the United States.[5] Others, however, believe that members are civil officers and are subject to impeachment…[citation needed]

        • kindGSL says:

          I will add my opinion that they are officers, but I can also see the utility of arguing about it.

          For example if they are not officers, would it shield them from covering up this?

          Brice Taylor:GHW Bush-PEDOPHILE
          http://www.youtube.com/watch?v=G_c7JTADT_k

          Do you think that is what our founders intended?

          I’d like to see the man who will stand up in public and say that it is.

  2. DWBartoo says:

    You certainly are busy today, Marcy.

    How much “trouble” did Rove and the Bush White House get into for tampering with DOJ issues?

    I guess my memory is deficient, but damned little, actually.

    Oh, there was some noise and Rove was invited to appear before Congress …

    Pretty serious consequence, I’d say.

    But I prolly missed something.

    I am relieved to learn that it is not Obama but that loose-cannon, Rahm who is behind this.

    Obama, clearly, is above such behavior.

    (Such snark as I have mustered, is for those entertainment porpoises I keep for the purpose …)

    DW

  3. Jim White says:

    Remind me. Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

    You beat me to it. Who needs a Supreme Court? Let’s just let Rahm and Lindsey decide everything.

    • emptywheel says:

      What an excellent idea!! Because there are no two people I believe the world will trust more in meting out justice than Lindsey and Rahm.

      Remind me again … the Israeli citizenship thing isn’t really active or anything is it?

  4. bobschacht says:

    This is ridiculous. Graham should be treated like a fear-mongering crybaby.

    Its just this kind of thing that always makes Democrats look weak. They won’t stand up for anything.

    Thanks for showing us behind the curtain again.

    Bob in AZ

    • rosalind says:

      Its just this kind of thing that always makes Democrats look weak.

      respectfully disagree. i’m done grading the Dems (and Obama) on a curve. It doesn’t make them look weak, it shows them to BE weak.

    • readerOfTeaLeaves says:

      This is ridiculous. Graham should be treated like a fear-mongering crybaby.

      I wish that I’d been this succinct.

      But it just galls me that we have Senators sticking their fingers in DoJ processes, and feeding the egos of criminal punks into the bargain.

      More evidence that government is broken.
      No health care, no global warming legislation, no Wall Street fixes, but Rahm can find time to meet with Lindsay Graham on whether or not we are going to feed the egos of little criminal punks.

      Crazymaking.

  5. Mary says:

    In your 54-45 link, damned if LG doesn’t say outright the thing that I think is the best political argument to hammer home against the commissions.

    He wants to make KSM a “warrior” not a criminal.

    “These people are not criminals. They’re warriors — and they need to be dealt with in a legal system that recognizes that,” Graham said.

    What an idiot.

    • readerOfTeaLeaves says:

      Mary,

      Thanks for keeping this one simple.
      Wouldn’t these lousy, creepy little thugs love to imagine that they are ‘warriors’, that they are in some kind of newMillenial ‘networked military’ organization that is ‘decentralized’. I’m sure that it’s a tempting delusion for these guys to view themselves as ‘warriors’ in some global conflict, but they’re punks.

      Well, I guess that we have at least one US Senator, who is willing to make an ass of himself by feeding the egos of punks by suggesting that they should be treated as ‘warriors’. (Why am I not surprised that this US Senator has a long association with the neocons? Hmmmm… is Liz Cheney writing Lindsay Graham’s Talking Points these days?)
      The collassal stupidity of allowing little criminal punks to parade themselves as some kind of New Agey Globalizish Warriors is breathtaking.

      Sen. Lindsey Graham (R-S.C.) has told colleagues that he’s negotiating with the White House over legislation aimed at heading off the possibility of civilian criminal trials for suspects in the Sept. 11 attacks, according to congressional sources.

      Graham met White House chief of staff Rahm Emanuel last week to discuss the issue, sources said.

      Okay, so WTF is Rahm doing spending his time with Lindsay Graham, the neocon enabler and abetter?

      Who is this good for?
      The US?
      Or the neoFeudalists and Certain Other Nations?

      Lindsay Graham is dumber than soggy toast to spend his time on aggrandizing the likes of that poor, pathetic trust-fundie with the toasted testicles of last Christmas.

      But for Rahm to spend one minute on this – particularly when health care, global warming, and other key legislation has not made it across the President’s desk in over a year – is appalling.

      What an unbelievable waste of resources.

      And that doesn’t even scratch the surface of prima donna senators intervening in what is supposed to be an Exec branch agency decision (!).
      What a mess.

      • Mary says:

        it’s a tempting delusion for these guys to view themselves as ‘warriors’ in some global conflict, but they’re punks

        Amen.
        And @20 – their followers and those who are on the fence – the rhetoric of supporting infant murdering criminals vs that of supporting “warriors” strike very different chords.

        I think of things like the Pearl murder and the children on those airliners and there’s Graham, calling the plotters of that kind of horror “warriors.”

        [email protected] – I think you and lealex are on to something. From incompetence to incontinence. *sigh*

    • PJEvans says:

      I wonder what it would take – how big a clue-bat we’d need – to get through that calling them warriors, treating them as such, cowering in terror at the thought of giving them a fair trial in court, raises the opinion that their followers have of them. And makes us look even weaker and more useless to the rest of the world.

    • ANOther says:

      Last week, Andrew Sullivan had a post on this subject which quoted the judge in the Richard Reid case. Lindsay Graham should read, mark and learn.

  6. MadDog says:

    Totally OT – For those with a hankering for reading about secrets from the past, the National Security Archive today released:

    Project Azorian

    The CIA’s Declassified History of the Glomar Explorer

    For the first time, the Central Intelligence Agency (CIA) has declassified substantive information on one of its most secret and sensitive schemes, “Project Azorian,” the Agency codename for its ambitious plan to raise a sunken Soviet submarine from the floor of the Pacific Ocean in order to retrieve its secrets. Today the National Security Archive publishes “Project Azorian: The Story of the Hughes Glomar Explorer,” a 50-page PDF article from the fall 1985 edition of the Agency’s in-house journal Studies in Intelligence. Written by a participant in the operation whose identity remains classified, the article discusses the conception and planning of the retrieval effort and the creation of a special ship, the Glomar Explorer, which raised portions of the submarine in August 1974. The National Security Archive had submitted a Freedom of Information Act (FOIA) request to the CIA for the document on December 12, 2007…

    This particular secret held much interest to me, both then and now, since I was stationed on a ship in Naval Station – Long Beach during that exact period, and I could see the Glomar Explorer tied up at a pier across the small Navy harbor from my ship on a daily basis.

  7. JohnLopresti says:

    54-45, measure failed. I take it this refers to Graham*s proposal needing 15 senators to change votes, so he would have cloture proof majority.

  8. behindthefall says:

    These people have no concept of leading or governing. To them, being in office is one long bout of dealing, dealing, and more dealing. I wonder what they think their principles are. Perhaps they are pleased to know that they have none. But no one better be comparing him- or herself to Lincoln.

  9. koshembos says:

    We may all sternly disagree with Rahm on the trials (provided the information provided to us it true), but he is just a foot soldier. We give Obama a much longer rope to hang us if we don’t realize that this post and all the other MSM reports, which we suddenly love, should be attacking the president and not his minions.

  10. PJEvans says:

    Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

    Not nearly as much trouble as they should have gotten into. Or the current batch of politicians idjits would know to think at least twice before they try it.

    Is it time for the pitchforks and torches?

  11. lexalexander says:

    Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

    Not nearly enough trouble, clearly.

  12. orionATL says:

    emanuel is, fundamentally,

    a c-o-s who is afraid of things.

    he is not reported to say “we can make this happen”.

    he is reported to say “this might be a problem for us”.

    that personality type will leads directly to presidential inaction and timidity.

  13. ezdidit says:

    New York City is precisely the wrong venue for a “fair trial.” A New York jury has been vastly too prejudiced by the events of 9/11 to render an “impartial verdict.”

      • MarkH says:

        U.S. jury pools may be tainted, but would YOU trust a jury from Buenos Aires or Tokyo or Sydney to try people we really really really want to put away?

        If you want justice you want the best system with an untained jury.
        If you want it away from Americans, then you’ll send it anywhere.
        If you want them found guilty, then you can send it to our paid friends.

        If you want to avoid having Democrats applauded for catching the bad guys, then you’ll jaw it to death.

        • canadianbeaver says:

          In other words, they don’t need trials because they are already guilty…cuz we say so. Same thinking as every man, woman and child killed in Iraq were terrists, and every man woman and child killed in Afghanistan are evil Taliban?

    • jawbone says:

      Actually, NYC juries of terrorism cases affecting the NYC area have been eminently fair.

      However, I does seem to me that increasingly it is becoming almost impossible for a person of seeming Arab or SEAsian Muslim background to get a fair trial. The concept of reasonable doubt no longer seems to exist for such cases.

      And if juries are hung, the government just keeps trying them over and over, even moving from, say, FL, to the Midwest in order to get their desired outcome.

      But I do believe NYers would be able to judge fairly.

  14. DWBartoo says:

    Those who wish Americans ill or would kill Americans are “punks” or “scum”?

    How is that different from the dehumanizing process the neocon media made use of in the run-up to the “war” in Iraq, with the use of terms like “towel heads”, “camel humpers” and worse?

    Lindsey Graham called them “warriors” when he would probably rather have called them “savages” (a term well-polished in our illustrious past – it was most useful in clearing the land of our nation of its somewhat earlier inhabitants) implying, somehow, the notion of at least a modicum of respect for the prowess of these people who would kill, who would engage in organized mayhem …

    The further implication therein contained, is that Graham and those who agree with him intend to get rid of these “savages”. In point of actual fact, however, Lindsey and his ilk (which is truly “bipartisan”, in fact it is as bipartisan as it is possible to get as human beings. and it is a very large ilk, as well) NEED these “savages”, for war is the essential underpinning of their entire “philosophy”. The “practical” result of our current “method” of getting rid of these “warriors”, is to create new “savages”.

    At first appraisal, this would appear to amount to failure, but is it really so? Actually, it is a most successful “policy” for an “endless” war, as I’m certain all here may easily realize, requires an “enemy” who is enthusiastically willing to “play”, preferably, by “our” rules.

    I know, this is a bit confusing, at least on the surface, as the “conventional wisdom” is that war is bad or, at least, messy, and generally to be avoided and seen as a “last resort”.

    Recently, under the influence of Bush-Cheney, that wisdom has been successfully challenged, and now the merest of suspected “possibility” warrants, theoretically, a war-like response.

    Our last two “responses”, in Iraq and Afghanistan, (and in a couple of places not yet “officially” recognized as receiving our “attentions”) have cleared the land, to some degree, if not the “air”. That human beings, having been killed in rather impressive numbers, so far, are not part of any meaningful equation is a curious, albeit “understandable” thing, apparently.

    The larger question that sits in front of us like a lump, an uncomfortable lump, at that, is this:”What would compel or impel other people to kill Americans?

    “They hate us for our freedoms” does not seem sufficient alone, but if one adds, “and our ‘free enterprise'”, we might begin to have a clue.

    Why do they hate us? Whatever have we done to them?

    Forgive me if I do not elaborate, as I’m rather certain everyone here well knows our history (unlike most of our fellow citizens, I fear).

    The “warriors” were (and are) by our definition not soldiers, primarily because they don’t wear uniforms and are a rag-tag bunch kind of like the Minute Men … oh dear, did I just say that? … So they were deemed to not have the protections of the Geneva Conventions … but also, because they fell or were placed in a “special” category, all legal protections were simply tossed into special basket, full of limbo and excessive, inhumane mistreatment. Which, is of course, all quite irrelevant to the notion of bringing them to justice.

    I suppose I should find some solace in the fact that if the situation were reversed (quite unthinkable, I know) they would not treat us any better.

    So we have found a common denominator of the lowest kind. In the history of humankind, this amounts to “progress” of a sort, unless we forget, which actually seems the most powerful common human “reaction’ except for “remembering” why we or “they” hate specific people for a very long time, hundreds, perhaps even a thousand of years.

    To my feeble mind the fate of those who we will try, convict and punish is of less import than the nature of the system which we call “the law”. It is in serious disarray, if not dis-function, and it has been hijacked quite as much as certain civilian airliners were.

    DW

    • skdadl says:

      Yes — to me, the language of “punks” and “scum” removes U.S. foreign policy as a factor from the calculations.

      “Scumbags” — a favoured term of our own former CDS, his description of Taliban, except to him just about any Afghan is Taliban — “Oh, sure, farmers by day, Taliban by night.” It never seemed to cross his mind that they were Afghans in, y’know, Afghanistan, and he … wasn’t.

      And today a huge offensive has begun in Hellmand province, U.S., British, and yes, I regret to tell you, a small contingent of our guys. So often when I’m reading the officers’ descriptions of what they’re planning, it sounds to me as though anytown anywhere could look like Fallujah to them. And they contradict themselves: they’re taking such care to minimize collateral damage, but yes, they are using drones, but they’re going to use the drones carefully, and besides they’ve dropped leaflets to warn the townspeople of Marjah to get out, thus causing a huge refugee problem.

      I should think that at this very minute, your country and mine are creating more “punks” and “scum,” to our eternal shame.

      • Mary says:

        besides they’ve dropped leaflets to warn the townspeople of Marjah to get out, thus causing a huge refugee problem

        And also except that they are now telling everyone still there to stay inside – the “insides” being the “hard targets” for bombs and other fire, bc Taliban might be “holed up” in there. I watched on BBC a British CO telling his guy to be sure they “knew” the enemy, but didn’t really tell them much about how to know them. Meanwhile, a day or so after the stories come out about all the “Taliban escape routes” from the area being blocked, there are now stories of a huge civilian exodus out, by those same routes. So what’s the gameplan on that? Let them all go with probably a fair chunk of embedded Taliban? Bomb them all? Anyone have any kind of real long term game plan for what the hell they are all doing there anyway? All of this to turn the area over to a corrupt central gov? Yippee.

        • PJEvans says:

          I dunno, but if I were Taliban in Marjah, I’d have left, and advised all my associates to leave, as soon as I heard rumors of an assault in the area. And made sure than families also got out.

          I’m wondering if one of the criteria for becoming a staff officer is complete lack of functional thought processes.

  15. realitymatters says:

    Should the government be allowed to track a person’s movements based on cell phone records, without evidence of criminal wrongdoing?

    Law enforcement agencies hope to obtain cell phone location data from cellular providers without first showing probable cause of a crime — and without the customer’s knowledge. The data comes from cell phone towers, and in densely populated cities can pinpoint a person’s location to within a few hundred yards.

    The issue is not whether the government can obtain the information, but whether a probable-cause warrant should be required first.

    Link

    • IntelVet says:

      What was the “probable cause” that allowed wire-tapping Eliot Spitzer’s phone calls?

      BTW, I was a juror on a trial (late ’90s) that depended, in part, on data derived from cell towers. The potential for abuse (political or otherwise) is very high (with increased accuracy-even higher), as we jurors found out.

  16. ezdidit says:

    In a similar context where “The Government says they’re terrorists, so they must be terrorists,” Glenn Greenwald calls the perversion of law and justice “faith-based reasoning.”

    res ipsa loquitur The damning article of faith, that our government and its political leaders cannot be trusted, is proven over and over.

    Thus, we are left in 2010 with a Republican Party that, by design, is dominated by its loudest base, the most troubled, extreme and obsessed paranoiac minority, and they are challenged by a feckless Democratic majority that cannot send a message to its own [email protected]@hole with both hands; Democrats only appear to govern in the murky shadows of bipartisanship, since they are lost in the abysmal darkness which is of their own creation.

    Hubris blinds them. Their success remains their secret: Only 12% of the people know that they got a tax cut. Over 50% think Obama raised their taxes. By any measure, Congress led by Democrats, has been more productive – NOT LESS PRODUCTIVE – than any other Congress.

    We’re f**ked without a good pr firm to get the message out.

    • MarkH says:

      Only 12% of the people know that they got a tax cut. Over 50% think Obama raised their taxes. By any measure, Congress led by Democrats, has been more productive – NOT LESS PRODUCTIVE – than any other Congress.

      We’re f**ked without a good pr firm to get the message out.

      Excellent point.

  17. Mary says:

    You cover a lot of ground and leave a lot for thought there, DW.

    Along a little different track, there’s a set of questions about the military commissions as an option that should be asked, but never seem to be. What are those commissions rights and duties with respect to US war crimes they are exposed to in the trials of their detainees?

    We know that Khatani’s case was dismissed specifically because Crawford found he was tortured. No one seems to mention this to Graham when he talks about the military commissions – not about the fact that far from ‘working’ the Khatani military commission had to cease because of his torture and nothing about the other elephant in the room from that decision.

    If Khatani was tortured, what is the military doing about that torture? Was he tortured by “warriors” and do the MCs have jurisdiction? Are Bush Obama and Graham and Emmanuel going to say (if anyone with MSM would ever go so far as to ASK) that while the military commissions can try terrorism “suspects” if that commission determines crimes and war crimes were committed against a detainee, they are powerless?

    If they aren’t – why have there been no charges in the Khatani case? If they are charged and empowered to deal with war crimes committed against detainees (and btw – Congress could amend the MCA and MAKE that the outcome) as well, then what will happen with respect to Article 147 violations, torture, threats against family, hostage taking, etc. Will the commissions have jurisdiction over members of the CIA and intelligence services or are they not “warriors” and if not, who will have jurisdiction over crimes referred out? Who has jurisdiction over the recent revelations by Britain that GrahamWarrior Binyam Mohamed was tortured? If there is not person or entity who can pursue the now universally acknowledged torture that the US used against GrahamWarriors – then what are countries that are parties to CAT supposed to do with respect to the US? Can they turn over persons or info? It’s one thing for the US to make threats about how it will stop sharing info, but that’s a big distraction from the real point – if the US is a torture regime (and it is if, despite Obama’s supposed disavowal, it’s policy is to take no action against torturers) then what information can other countries share with it; what prisoners can they extradite to it; what can they do with info the US does try to share with them which has no assurances of not being torture derived because of its sourcing?

    I’d like to see Grahamco hit with all those and more questions, but the Sunday morning talking heads and the Gibbs confs won’t ever go there.

    And wouldn’t it be nice to have Grahamco asked if members of terrorist white supremicist groups as well should be handed over to military commissions, esp after Oklahoma City, or members of the anti-gun control groups who have threatened members of Congress, the President and our government – Teabaggers who have chanted for the lynching of the President and the AG. Or does Graham think that white American terrorists can’t be warriors, just Muslims?

    So much that is so wrong about the commissions and they just act like it will solve all their problems with no one even asking the hard questions.

    • skdadl says:

      Someone must be able to draw up a list of prisoners at GTMO who can never be tried because of their torture, beginning with Abu Zubaydah and Qatani but it must be longer than that.

      Holder and Obama never mention those prisoners. Those two in particular we know are so broken in body and mind that they must need permanent care for the rest of their lives. Why does no one with press access ever ask about them? Just raise the names in Holder’s presence, and keep raising them until something sinks in at the level of the popular culture.

  18. justbetty says:

    I know this way into EPU-land, but the hits never stop coming. Today the story is that the DOJ has to ask intelligernce officials if it’s OK to mirandize a suspecetd terrorist. Next will they ask permission to wee wee?

    • earlofhuntingdon says:

      See, Cynthia Kouril’s post this morning, reminding the tradmed blather mouths that the Miranda warning merely reminds arrestees of rights they already have. They are not conferred upon the person arrested by virtue of the warning. They are not legitimately withheld by avoiding or delaying giving the Supreme Court-mandated reminder that has become the staple of every cop show for forty years. (That is, except for CSI and its clones, where Miranda is never administered, because the cops are always right (irrelevant), they never make mistakes or get the wrong guy (uncommon), and the right bad guy always confesses (uncommon, but not unheard of).)

      Cynthia also notes that those rights apply to US citizens and any other national arrested in the US or, more arguably, subject to its arrest power elsewhere.

      The underwear bomber, for example, is a foreign national alleged to have committed a crime on board a US flag air carrier. As with US flagged ships, that is space that is traditionally considered US territory and subject to US law. He was also arrested inside the United States. That automatically confers rights of due process and other constitutional rights on the arrestee.

      If Rush Limbaugh were arrested for drugs possession in Canada or France, he would expect to benefit from the panoply of civil righs and limits on government police powers afforded Canadians or French. As a multi-multi-millionaire, his lawyers would demand it. Yet, he gleefully advocates withholding them from some people arrested here because they make him afraid, or he can use the mythology of their alleged crimes to make others afraid of them, and to make himself a lot of money.

      Newt Gingrich, to pick another example, is evil, but knows these issues well. He just viciously caters to his peanut gallery by arguing otherwise. Jon Stewart last week nicely skewered him on his willingness to ignore such realities when it fit his political priorities.

      • PJEvans says:

        Actually, if Limbaugh were arrested in Canada or France, he’d probably yell loudly about his rights as a US citizen and how he wanted the embassy/consulate notified right now and so on, ad nauseam, before the lawyers even showed up. And probably after, as well.
        (He strikes me, and Graham does also, as one of those people who is totally clueless that US law doesn’t actually apply to US citizens who are arrested in other countries.)

        • skdadl says:

          If U.S. law doesn’t, it’s still true that our Charter, like your Bill of Rights, and our ratification of a number of international treaties, guarantee certain human rights for all persons, not just citizens.

          We probably have people here too who are xenophobic enough to think that non-citizens aren’t quite entitled to be treated as persons, and a few of them may actually be in power, but they are wrong. We must shame them.

          • kindGSL says:

            That whole argument about if people deserve human rights or not arises from the Doctrine of Discovery, a document still cited in US law.

            It is like a big secret, but the first thing all the law enforcement people decide is if you have rights or not, that is where the D of D comes in so handy for them.

            http://www.lclark.edu/law/faculty/robert_miller/website/

            Big businesses back up that practice by maintaining that they have the right to discriminate against people based on their religion. This means that in practice some individuals are thus not actually human or possessing of human rights.

            Borders Books is one of these businesses, they refuse to shelve Native American religion books in the religion section. I believe they do this as a legal firewall of denial to our humanity. It is surprising how well it works.

            • DWBartoo says:

              Thank you, kindGSL, for that link.

              Manifest Destiny grew out of the Doctrine of Discovery?… who would have imagined/s?

              Puts Jefferson in a somewhat different “light”, as well …

              DW

              • kindGSL says:

                I didn’t. I discovered it recently, from a link posted here or at the lake! (thank you, thank you)

                Borders Books I figured out years ago and have been bashing myself against them ever since. I have documentation of them justifying it as a ‘regional’ issue. I haven’t written an actual demand letter to them yet, I wanted to wait until I am fully ready.

                I think conspiracy to commit ethnic cleansing is and should be recognized as a very serious crime.

                • DWBartoo says:

                  Ethnic cleansing.

                  Would that be “terrorism”?

                  How could it not …?

                  Thanks for the link, nonetheless, kind, I’d not seen it earlier.

                  DW

            • kindGSL says:

              If this pisses you off as much as it does me, I urge you to protest at your local Borders Bookstore.

              Homemade signs and filers are great. If you have a group, please notify the press. My local paper told me they would cover the story when it was a group protest.

              See if you can get some media attention, if not, please make your own announcement and load it on youtube.

              Thank you.

            • skdadl says:

              Thank you also, kindGSL. On the one hand, I can understand all that in context. Historical context. On the other, colour me appalled that we haven’t been able to admit that there is no way to reconcile such a doctrine with the basic structures and principles of your Bill of Rights and our Charter.

              When I say we, I mean that. In theory, our First Nations have protected status not only under the constitution but through their direct treaty connections with the Crown. Every once in a while they make that point by demonstrating in London, and the queen is always open to the approach, as she must be. We have politicians, though, who work hard to undermine what should long ago have been accepted as law, and so this remains an unnecessarily agonizing problem here too. Why? Land. Munnee. Ignorance.

        • earlofhuntingdon says:

          Some American companies are like that, too.

          If I recall correctly, if Mr. Limbaugh were arrested in Canada, he would be entitled to have his embassy informed of his arrest and the charges against him, including penalties, if convicted.

          The US has similar obligations. In a famous, Bush-era case, the US Supreme Court – at least in the case of Mexicans tried and convicted of murder in Texas (too often, one would automatically follow the other) – didn’t consider failing to meet those obligations sufficiently prejudicial to halt a state execution. As a serial abuser of drugs, Mr. Limbaugh should be glad he’s not a Mexican broadcasting from Texas.

          • PJEvans says:

            In TX, if you’re black or brown, some people consider it prima facie evidence that you’re a criminal (or will become one). Fortunately not all of them, and not all the DAs, are that dim.

  19. Mary says:

    How can it be so hard for Obama to process that Good Solutions trump Bipartisan Solutions every day, every way?

    • GeorgeJohnston says:

      What part does Mr. Constitutional Scholar think having his Chief of Staff meddle in the Department of Justice is a good idea? How did that work out for Nixon’s henchmen?

      • MarkH says:

        While you’re right he shouldn’t meddle at DoJ he was trying to get the POTUS policy executed (close Gitmo) and that led him to Sen. Graham.

        So far I don’t think I’ve seen anything to indicate he’s telling Holder what to do.

  20. bobschacht says:

    One of the things that I get irate about is how the Lindsey Grahams of this world, who ought to know better, seem to have forgotten that our civilian courts do, indeed, know how to handle all manner of “bad guys.” Instead, they (the Lindsey Grahams) run around in circles like Chicken Little as if our courts have no idea how to handle a trial of bad guys. It is as if collective amnesia has settled like a fog over their brains.

    I wish Obama would take advantage of this teachable moment to remind the public of the trials of bad guys that our civilian courts have handled, to give the public confidence in our courts, rather than running in circles of fear at the slightest hint of difficulty. In fact, his failure to defend the courts has the effect of undermining public confidence in them.

    Bob in AZ

  21. news4u says:

    Barton Gellman leaves washington post to become Time contributing editor at large

    Pulitzer Prize-winning journalist and author Barton Gellman is joining TIME as a contributing Editor At Large. He will also start a column for TIME.com called Counterspy, on personal privacy and security in the digital age.

    http://www.poynter.org/column.asp?id=45&aid=177773

    http://news.google.com/news/more?pz=1&hdlOnly=1&cf=all&ned=us&cf=all&ncl=dWq_F6-n7MshE9MoMDhASAsKlBLPM

  22. klynn says:

    Several leaders of groups who favor civilian trials said they were aware that Graham was in discussions with the White House about a legislative proposal that would effectively force the Sept. 11 suspects into military courts by barring civilian trials. The proposal failed on a 54-45 vote in November, but Graham and other senators held a news conference last week vowing to introduce the measure again in the near future.

    EW, so how much can be “covered-up” in a military trial?

    Is there a mutual party between Rahm and Graham that would benefit from the possible protection a military trial of KSM would offer?

  23. DWBartoo says:

    I have been pondering a silly question.

    What precisely IS a “terrorist”?

    What specific acts constitute “terrorism”?

    Is it like “pornography”, which for many decades was never really defined, as it was assumed that everyone or anyone would KNOW what it was when they stumbled over it ( “I may not be able to tell you what it is, but I’ll recognize it when I see it.”)?

    Or is “it” in the eyes and proclivities or prejudices of the beholder?

    If “terrorism” is “something” that “they” and only “they” engage in, then it should be abundantly clear as to precisely what it is …

    If “it” is something we cannot engage in for reasons of moral principle, then, clearly, only “they” may ever be accused of it.

    However, any honest assessment of our history and our current behaviors, must raise some questions, at least among the thoughtful.

    It is a pathetic patriotism that will not examine itself.

    And it is a failing, collapsing society, which eschews understanding while embracing an arrogant disdain of its own laws, supposed principles, and the better example of its own traditions when confronted with what amounts to the bites of rabid piss-ants, especially when the real “bottom line” is simply huge amounts of money resulting from organized mayhem and the seizure and control of resources that rightfully belong to others.

    What is the definition of terrorism?

    And who are the terrorists?

  24. bmaz says:

    And how bout them military commissions? Well, two out of the three subjects tried in the vaunted military commissions are back to their normal lives. Take Hamdan for instance, he is home with his wife and just had a baby. From Carol Rosenberg at the Miami Herald:

    At a time when the Pentagon is trying to figure out how many freed Guantánamo detainees have resumed their jihad comes news of a different sort from Yemen:

    Osama bin Laden’s former driver has a new son.

    The boy was born Jan. 11 in the Yemeni capital, Sana’a, to Salim Hamdan and his wife — 14 months after Hamdan was returned to Yemen from Guantánamo, where he was convicted of war crimes in August 2008.

    The boy’s birthday fell on the eighth anniversary of the opening of the prison camps in southeast Cuba that President Barack Obama wants to close.

  25. Hugh says:

    So among all the other reporting on Rahm’s central position on issues best left to the Attorney General, it appears he’s trying to craft a deal with Lindsey Graham on where and how to try Khalid Sheikh Mohammed.

    Probably been said by others but so much for depoliticizing the DOJ.

  26. PPDCUS says:

    A brief note to whitehouse.gov …

    IT’S THE CONSTITUTION, STUPID

    http://emptywheel.firedoglake.com/2010/02/12/dealing-away-civilian-law/

    Q: Who gave Emmanuel the authority to negotiate away our Constitution to a whore like Lindsey Graham?

    A: The POTUS who swore an oath to preserve, protect and defend the Constitution.

    We pretended to vote.

    You pretended to get elected.

    The charade that this administration represents the people of this country is over.

    Keep up the good work, Rahm.

    • graywolf says:

      You DID vote.
      You DID elect a narcissistic empty suit and his coterie of teen age advisors.
      You’re angry because you had to settle for Obama when you really wanted Fidel Castro,.

  27. Cujo359 says:

    in an article III setting.

    Is that Article III of the Constitution? Just what isn’t an “Article III setting” in the U.S.? I thought, perhaps mistakenly, that even military courts are covered by Art. III.

    • bmaz says:

      Article III refers to Article III of the Constitution, which controls Federal courts and Federal jurisdiction. It does not pertain to military courts.

  28. MarkH says:

    emptywheel quotes Jane Mayer:

    Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.”

    First, Gitmo isn’t a big deal with me. I’d like to see it closed, so we can get past the torturing which occurred there. But, to get beyond that we need a nice clear understanding of how things should begin to work. I agree with Graham on that much.

    So, I’d ask a rather obvious question: how do crimes which occur on American soil, but plotted/planned by someone in another country usually get handled?

    Do they go to the ICC or to the judicial system of the country the alleged criminal is from or do they fall to us?

    Are there regularly distinctions made (about where to handle it) wrt the kind of crime? For example, are Nigerian scammers tried in Nigeria or here or The Hague?

    Since people came here for the express purpose of doing murder and mayhem it was certainly done with forethought and malice. Would it matter if those who planned it never came here, but hired thugs who had no malice to come here and do it?

    The military courts were, I thought, always about our military. Has there ever been a time when they were used to try a non-U.S. person and particularly a non-military person?

    Let’s say we decide the military tribunal isn’t appropriate since those involved weren’t formally military (either ours or someone else’s). Then you have to decide whether you want to follow traditional placement of the trial & imprisonment or somehow categorize this in a different way.

    At that point, do you have to say this was of such outrageousness that the alleged criminals could never get a fair trial here, so they have to be tried by other more objective persons in some other country.

    Who could make such a decision? What legal basis is there for that? Would it be acceptable to all and sundry?

    If you think they couldn’t be tried here (as the citizens of NY seem to be saying), then where? Seems The Hague is the only place, but we’re not members of the ICC.

    Sen. Graham, what do you say at that point? Do we ask for a special dispensation to have this horrendous mess taken out of our hands?

    • bmaz says:

      So, I’d ask a rather obvious question: how do crimes which occur on American soil, but plotted/planned by someone in another country usually get handled?

      Do they go to the ICC or to the judicial system of the country the alleged criminal is from or do they fall to us?

      Are there regularly distinctions made (about where to handle it) wrt the kind of crime? For example, are Nigerian scammers tried in Nigeria or here or The Hague?

      No, the US is not a member of the ICC although it occasionally “cooperates” with it. With pretty much the sole exception of a few German soldier spys caught here during the formally declared WWII, all such prosecutions for acts committed here as you describe have been tried in regular Article III Federal courts in the US, and it has all been done quite successfully.

      Since people came here for the express purpose of doing murder and mayhem it was certainly done with forethought and malice. Would it matter if those who planned it never came here, but hired thugs who had no malice to come here and do it?

      No, so long as we can get personal jurisdiction over them via capture or extradition, there is no problem trying them here. Done all the time.

      The military courts were, I thought, always about our military. Has there ever been a time when they were used to try a non-U.S. person and particularly a non-military person?

      Yes, But just to be clear, there is a big difference in between military courts under the UCMJ and so called “military tribunals” which are bastardized creations by Bush/Obama. There is no reason that they cannot be tried here; we tried the Ramzi Yousef and friends for the first WTC attack and the Blind Shiek in New York just fine.

  29. canadianbeaver says:

    Marcy, why does it matter where KSM is tried? Whether real or not, the government has all the evidence it says prove him 100% guilty, and the public agrees. So what is the point of a public trial exactly? Where are the unbiased jurors ever going to come from? EVERYONE thinks he is guilty. Besides, if the CIA says you are guilty, you are guilty. That’s all that is needed. They’ll even make the evidence if they have to. WMD anyone? So in the end, the results will be the same whether it be military tribunal, or public. He will be found guilty and put to death, and Americans overall will say “good”.

      • canadianbeaver says:

        No, it isn’t “tripe”…..you say it matters, but you me and every person with even one brain cell knows what the verdict will be…so what is the point? To make you feel good? It sure as hell isn’t about giving ANYBODY any rights, because, like I said, you and I already know the verdict….so enlighten me, instead of thrashing out like a Republican….what the hell is the difference? Think he’ll get off cuz he was tortured? No chance in hell……just want to know the juicy details? Why? Wouldn’t be the first time it was all tainted or even fake evidence…..Never mind answering…..I’m sick of the bullshit doled out on these blogs by the same upper class mentality of the politicians anyway.

        • bmaz says:

          I have seen you repeatedly spew out the same junk, and I have no inclination whatsoever to engage you on such tripe. And it is tripe.

          • canadianbeaver says:

            As I said..enlighten or don’t reply to people. And again, you never answered any of my logical questions. No answers? And you say I’m posting tripe? I’ll answer any question thrown my way. Quit deflecting.

            • bmaz says:

              No, I answered you the first time. You asked “…why does it matter where KSM is tried?” I responded because of due process and the rule of law. It is a direct, valid and proper answer to your question. Adhering to the law and our principles is more important than the result of any one trial; the process is more important than the individual person. Your problem is you don’t like the answer because it does not play into your own jumbled rhetoric and impertinent conclusory statements that you have spewed on this thread and several others I recall. Since you did not like the answer, you belligerently claim I did not answer the question, but I clearly did.

              • canadianbeaver says:

                Due process? Really…like this due process?

                However, Biden said he believes Mohammed will be found guilty regardless of the venue. His remarks echoed comments last month by White House press secretary Robert Gibbs, who said Mohammed “is going to meet justice and he’s going to meet his maker.”

                So again, I ask, what’s it matter where he is tried? You can’t hang on the “correct way for justice to operate” in this case, because, there is no justice in this case. If somebody innocent is incarcerated, put on trial, and found guilty, has justice been done, even if they are innocent? This man has been pronounced GUILTY. Period. The process means NOTHING.

                • PJEvans says:

                  I can see your point, assuming it actually exists.
                  You’ve already tried him in your mind and found him guilty, so the actual trial in court doesn’t matter.
                  Nor do the laws that cover trials.

                  That’s not how it should work.

                  • canadianbeaver says:

                    Actually PJ, that wasn’t my point. I haven’t tried him in my mind. The US government says he’s guilty, and after he’s tried, he will be executed. They already know the outcome. So if this goes to a civilian trial, it will make a mockery of the “justice” system. Kangaroo court, nothing more. The Obama Administration has repeatedly stated he’s guilty, they know he’s guilty, and can’t wait to execute him WHEN a guilty verdict is brought down. Not IF, but WHEN. So my point is, it doesn’t matter. He will be executed on CIA and US government evidence, regardless whether it is a private trial, or an American Idol show trial. The US will lose even more world standing with a kangaroo court trial. Is that what everyone prefers? Further mockery?

                    • PJEvans says:

                      THE POINT IS THAT HE ISN’T GUILTY UNTIL TRIED AND FOUND GUILTY.

                      You are, legally and officially, not guilty until you’ve been tried and found guilty. NO MATTER WHAT SOME OFFICIOUS IDJIT SAYS.

        • PJEvans says:

          I’m sick of the bullshit doled out on these blogs by the same upper class mentality of the politicians anyway.

          Don’t let the door hit you. (You seem to be missing most of the points here, anyway.)

          • canadianbeaver says:

            I asked questions and the response was F*ck off. Ya, I’m the one with the problem, huh? Perhaps calling bullshit on this fake justice hurts people’s feelings.

            • PJEvans says:

              You wanted us to agree with your opinions.
              You didn’t bother to read the responses you got.
              You’re acting like just another troll.

              Bye-bye!

  30. shekissesfrogs says:

    Here’s the Fox News Analyst, Former Judge Andrew P. Napolitano: The case against military tribunals We should beat them with their own cudgels.

    I think this is about trying to get out of torture charges. Creating tougher laws after the fact because Cheney and Co are trying to declare a new type of war and therefore we need different standards.
    First they came up with a new description enemy combatants, non persons. Now they are warriors. syntactic kabuki.
    If we return to the constitution and the rule of law, and it works, that makes the Cheney/Bush cabal, criminal.