Rahm’s Mouthpiece: White House to Cave on KSM Trial

Rahm’s mouthpiece is reporting that the White House is all set to cave on civilian trials for Khalid Sheikh Mohammed.

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Now, since this is coming from the WaPo, the newspaper that has been all-Rahm all the time in the last week, I’m curious whether this discussion of Obama’s advisors’ readiness to recommend that Obama cave on civilian trials is the same thing as Obama himself being prepared to cave on civilian trials. In other words, this might just be Rahm presenting this as a fait accompli to make his job of persuading Obama easier. He did it once before with the NYT, after which the claims were quickly walked back.

But for the moment, let’s pretend this story reflects actual reality, and not Rahm’s reality.

If so, this is a colossal mistake on the White House’s part.

That’s because the Military Commissions are going to have big problems that civilian trials are not going to have. And if Obama caves on this point without being forced to do so by Lindsey Graham wearing a Speedo and a semi-automatic, then Obama, not Lindsey, will own the shortcomings of the MCs. If MCs fail to give KSM either a quick guilty verdict or a real prison term, then Obama, not Lindsey, will be responsible.

But Obama seems to have given up advocating for the most efficacious solution to any problem, it seems.

86 replies
  1. PJEvans says:

    If Obama caves to the right wing on this issue, he’ll cave every time they push him. In which case, he might wnat to re-think whether he should even be President.

  2. Arbusto says:

    This Admin keeps, at least on the surface, trying for bipartisan governance in every arena. That it continues to fail miserably at both bipartisanship and governance by the White House, seems beyond the point to them. Our rights under the Constitution have always been under attack but reason, in the main, prevailed in the past. Since 9/11 there seems less care or recognition of the danger to our Republic from reactionary laws and policies, the Military Commissions being just one. Obama is a a poor advocate, a poor tactician when we need a good strategist, and doesn’t seem to understand the function of the President nor consistent use of the bully pulpit.

    • bobschacht says:

      Obama is a a poor advocate, a poor tactician when we need a good strategist, and doesn’t seem to understand the function of the President nor consistent use of the bully pulpit.

      I think this is a serious mis-reading of what Obama has been doing. My reading of Obama’s strategic objectives is that he really does want to transform the polarization of the American political landscape– a very ambitious goal. I believe that this is such a high priority of his that he is willing to settle for watered down tactical objectives if that will decrease the polarization. I think he’s really serious about this long-term objective. Even though he was elected as a Democrat, more than any other office, the presidency serves *all* Americans, not just Democrats.

      Eventually, he may decide that achieving this bipartisanship is too heavy a lift, and that he just can’t achieve it. Then, we may see a more partisan Obama who cares less for Republican partners.

      Bob in AZ

    • DWBartoo says:

      Ah, Orificial spokesman, Rahm Emanuel, Chief of Stuff Obama doesn’t dare say hisownself.

      That explains a lot of the … stuff that has been hitting the fans lately.

      Appreciate the “heads up” Jim, it explains way Rahm is always flush with excited hand gestures.


  3. Leen says:

    The pressure coming from Liz Cheney’s “Keep America Scared” warmongering group must be working.

    Did you see Rachel rip up Liz Cheney and her efforts to expose and undermine the “Al Queda Seven”. Rachel went after Liz’s efforts to “Keep America Scared” tactics like never before. Remarkable.

    Also when Chris Matthews ripped (last evening) into Karl Rove’s new and un improved efforts to “re-spin the spin” on the false pre-war intelligence issue. Matthews also let us know that Micheal Ledeen is now advising Mitt Romney.

    How is it that the very thugs (Micheal Ledeen) who lied this nation into that immoral war are still walking free? Did I miss it. Has someone been held accountable for those Niger Documents and the other false pre war intelligence?

    • Leen says:


      These law manipulators sure have a way with twisting words.

      • BoxTurtle says:

        I’m just waiting to see how they word that law so it applies crazy Imam’s, but not Rush Limbaugh.

        Boxturtle (Fred Phelps will probably need a specific exemption in any case)

        • Jim White says:

          Yeah, I suggested over on Greenwald’s thread that the way to end the military commissions is for Obama and Holder to declare that O’Keefe will be tried in one.

          • BoxTurtle says:

            Great minds think alike, I grabbed a sandwich and had lunch on the remains of the dam by the grotto.

            We really must get together and talk politics sometime. Lunch at El Meson?

            Boxturtle (My treat, I get a discount there)

            • Sara says:

              “Great minds think alike, I grabbed a sandwich and had lunch on the remains of the dam by the grotto.

              We really must get together and talk politics sometime. Lunch at El Meson?

              Boxturtle (My treat, I get a discount there)”

              BT, I didn’t know you were anywhere near Yellow Springs. Since the seasons there are roughly a month ahead of Minnesota, I assume the Glen is full of nice green sprouts, and in the old days it would have been cause for taking off your shoes and doing a wild circle dance on front Campus.

              Any sign of life on Campus? I ask because among other things I am now something of a part owner of the place (and we got the Glen in the deal), given that I am Class of 62 and former member of the Alumni Board, which bought the place last year.

              • BoxTurtle says:

                I’m in Xenia. Currently, the Glen is full of mud and melting snow. Saw no signs of life at all, but I snuck in the back way and thus only saw the part of campus that faces the glen parking lot.

                Boxturtle (Downtown Yellow Springs seemed lively last time I was there, if that helps)

              • Leen says:

                I was all over the Glen today. Has a fair amount of snow covering the ground. Had my Yak traks on. (anyone into winter hiking needs a pair) Could go right up the side of a glacier with those things on. No buds…tough winter in Ohio. Folks around these parts have had it with the snow. Up there in Minnesota your used to it.

                Walked all around the empty campus. eeery. Word is out that the school will re-open in several years.

            • Leen says:

              Back in Athens

              Have to take you up on that next time I am in the neighborhood. Doing a week every month to six weeks giving my mother time off from the nursing home scene.

              The Glen in the winter is so serene so beautiful

          • harpie says:

            Thanks very much, whitewidow. I coudn’t find the text of the Bill itself, but he’s got a link to it in there.

      • fatster says:

        “These law manipulators sure have a way with twisting words.”

        All the better for twisting the law. Reality, too.

  4. BoxTurtle says:

    Here’s what I think will happen:

    1) Obama will cave to military commissions. He appears completely spinless to me anymore.

    2) If KSM has a real lawyer, he will file for a restraining order against the commissions on various grounds. He will probably lose, though he has a chance if he argues that a military verdict will prejudice KSM in a real trial, thus the constitutionality of the commissions must be decided first.

    3) So it goes in front of the commission, regardless of if KSM has a real lawyer. KSM is convicted.

    4) If he has a real lawyer (or the aclu might pick this up), paperwork is filed to challenge the commissions on constitutional grounds. It goes all the way to the supremes. Given that the courts are operating and there is no national emergency, I say 7-2 the commissions are invalidated.

    5)KSM is granted a real trial, with real rules of evidence, a real lawyer, and a real judge.

    The above assumes that KSM decides to fight. He may well make a last speech and head off to maytrdom.

    Boxturtle (Disclaimer: GOOOO BROWNS!)

    • DWBartoo says:

      Doesn’t your assumption, assume a rule of law?

      Lacking an actual, you know, REAL rule of law, it ends at “3)”.

      Well, when KSM is executed.

      (Which is likely going to happen, by any and all, considerations, today extant.)

      Then it all “goes away”.

      And nobody, who doesn’t want to, ever looks back.

      There won’t be even a ripple of effect on the legal community, or anyone else, that’s noticed or acknowledged and THE policies regarding “unprivileged belligerents” or whatever “they” will next be termed, will continue apace in the endless war on … on … what was it?

      Oh yes, “terrorism”.



    • powwow says:

      [And adding to the discussion between DWBartoo @ 46+56 & BoxTurtle @ 49.]

      4) If [KSM] has a real lawyer (or the aclu might pick this up), paperwork is filed to challenge the commissions on constitutional grounds. It goes all the way to the supremes. Given that the courts are operating and there is no national emergency, I say 7-2 the commissions are invalidated.

      The bolded part of your scenario has already happened, BoxTurtle, for at least a couple of the 9/11 Five defendants, and for a couple more Guantanamo prison camp inmates who aren’t. Their petitions were filed in the Court of Appeals for the D.C. Circuit, starting last September, into November (thus after passage of the 2009 MCA, and after AG Holder made his decision about trying the 9/11 Five), and possibly beyond.

      What little I know about these four (or more) appeals is thanks mostly to Lyle Denniston of SCOTUSblog digging up the briefs and posting links. I wrote about and quoted from the first petition here.

      A sampling of that appeal (to which the government was asked to respond, but whose final disposition, if any, is unknown to me):

      Petitioner requests that the Court hold that the Military Commissions Act of 2006 is unconstitutional, declare all proceedings before the military commission to be a nullity, and enjoin further proceedings therein.

      (1) Does the Military Commission Act of 2006, on its face or, in the alternative, as applied in the military commission proceedings below, exceed Congress’s constitutional powers to convene law-of-war military commissions under the Define and Punish Clause (Const., Art. I, sec. 8, cl. 10)?

      (2) Does the Military Commissions Act of 2006, on its face, violate the equal protection component of the Fifth Amendment’s Due Process Clause?

      * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

      We demonstrate in this Petition that the Military Commissions Act of 2006, Pub. L. 109-366, 17 (October 2006) (“MCA”), on its face and as applied in this case, exceeds the constitutional limits on Congress’s power to authorize military commissions. In the terms of Geneva Convention Common Article 3, the commission in this case is not a “regularly constituted court.” […]

      Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” — in the military judge’s own words — “in which uncertainty is the norm and where the rules appear random and indiscriminate.” Military Judge Ruling D-126, at 3.

      The reason for this state of affairs, moreover, is clear: These cases were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.

      The process has been corrupted by illegitimate political considerations at every step. Political distortions of the judicial process begin with the MCA itself. The provision limiting its jurisdiction to aliens (the basis of the facial challenge infra) was designed to avoid the political consequences of imposing the MCA’s facially unconstitutional procedures like this on American citizens. Sections 948c, 948d(a). No other American criminal court system is so obviously founded on such politicized and illegitimate premises.


      [Footnote 4: Since her appointment in February 2007, the [Convening Authority, Ms. Susan Crawford] has denied 84 percent of expert requests from defense counsel in military commissions. The few granted experts occurred predominantly in United States v. Omar Khadr, where the Canadian government has been actively involved.]


      By contrast, American enemy belligerents may only be tried in federal court or in regular court-martial proceedings under the special law-of-war court-martial jurisdiction, which applies to “persons” without regard to national origin. 10 U.S.C. Sec. 818. American enemy belligerents are thus entitled to the full protections of the Constitution or the regular military justice system that tries American service members, while aliens are relegated to a criminal justice system that is specifically designed to deny them those rights.

      From the Petition for Writ of Mandamus And Writ of Prohibition filed on September 9, 2009 on behalf of Ramzi Bin Al Shibh, by U.S. Navy JAGs Suzanne Lachelier and Richard Federico of the Office of Chief Defense Counsel, Military Commissions, Department of Defense.

      There’s also a stunning illustration of the travesty of Guantanamo Military Commission “process” detailed in this subsequent PETITION FOR WRIT OF MANDAMUS OR WRIT OF PROHIBITION filed on September 17, 2009, on behalf of 9/11 Five defendant Mustafa Ahmed Al Hawsawi, by his civilian lawyer Nina Ginsberg, exposing the sham, irregular proceedings that Guantanamo inmates – even those few legitimately considered to be “high value” suspects – are being subjected to, out of sight and out of mind of the American Congress at their behest, largely because it’s all been studiously ignored by the American media (the Miami Herald’s Carol Rosenberg excepted):

      By this point in the [Guantanamo Military Commission] proceedings [for a hearing held July 16, 2009], petitioner [“9/11 Five” defendant MUSTAFA AHMED AL HAWSAWI] had been told first that he would not be allowed to speak and did not have to come to court (i.e., by the Military Judge’s written order conveyed to him in writing and by his attorneys); then, that he should come to court, and would be allowed to make a five-minute speech (i.e., by Military Judge’s order on oral motion of the prosecutor); and, finally, that the opportunity to address the court for five minutes did not apply to him (i.e., communicated by the Judge personally, after petitioner had come to court). The arbitrary and bewildering sequence of events caused petitioner to become more visibly agitated than at any point in the preceding thirteen months of proceedings, and compelled him to be removed from the courtroom.15

      The Military Judge eventually took up the competency related discovery matters for which the proceedings purportedly had been scheduled. Because previous motions to present the case for defense experts on an ex parte basis [to the military judge but not to the military prosecutors/jailers] had been denied, and due to the limitations on the disclosure of information imposed by the protective orders [that the military judge had imposed on the defense counsel and proceedings], the detailed [Navy JAG] military counsel for Ramzi bin al Shibh, Cmdr. Suzanne Lachelier, had to justify her request for a defense expert without being able to reveal whether the basis for it was either (1) provided by her client or (2) related at all to his torture history.

      Cmdr. Lacherlier’s attempt[s] to justify a defense request for the assistance of a mental health expert with expertise in the long-term cognitive effects of sleep deprivation were disrupted by a government-activated censoring mechanism in the courtroom. The audio feed of Cmdr. Lachelier’s comments to the public gallery was silenced and a rotating red light began flashing. The disruption signified a determination by a government agent that Cmdr. Lachelier had compromised the security of classified information by arguing “the government cannot hide behind the fact that [CENSORED]…” Cmdr. Lachelier waited for the audio feed to be restored, and resumed her argument, but the audio was again interrupted and the red light began to flash. Cmdr. Lachelier objected: “Judge how can I be expected to know what is permitted and what is not? The rules are written in sand and the government can change them whenever it wants.”

      Neither the government nor the Military Judge disputed Cmdr. Lachelier’s characterization of the prosecution’s unbridled power to make ad hoc revisions to the rules. Instead, as if to underscore the point, the Judge responded only by saying “Mr. Powell needs to speak to someone.” At that point the “court security officer” – believed by all to be an employee of the CIA – left his post by the Judge’s side, and walked out of the court. The courtroom – including the Judge, prosecutors and defense lawyers – waited in silence for Mr. Powell’s return. When Mr. Powell reappeared, he walked directly to the Judge and whispered to him. The judge, without consulting counsel, then parroted Mr. Powell’s apparent instructions to Cmdr. Lachelier: “You can talk about post-September 2006. Anything prior to that, just refer to the written record.”

      It was after the proceedings on July 16, 2009, that the Military Judge frankly acknowledged that there were no rules governing the proceedings below. The Military Judge bluntly described the Commissions as “a system in which uncertainty is the norm and where the rules appear random and indiscriminate.” [Order of July 13, 2009 [sic]; emphasis added].

      al Hawsahi Defense Counsel Nina Ginsberg, 9/17/2009

      As Nina Ginsberg’s brief goes on to say:

      The Hamdan Court held that military commissions must be conducted before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Hamdan, at 63 1-2 (plurality); id., at 642-3 (Kennedy, J., concurring). The minimal requirement of any “regularly constituted court” is that it satisfies the rule of law. Hamdan, 548 U.S. at 635 (“[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction”).

      As for:

      So WHO may gainsay what is ACTUALLY going on? – DWBartoo

      If the three-judge appellate panel dealing with at least one (and probably all) of these petitions – Judges Karen LeCraft Henderson, Judith Rogers, and David Tatel – finds a way (or has found a way) to duck the profound moral and legal merits of the case made by these briefs, which have been filed by both military JAG and civilian defense counsel, about the Executive Branch Military Commission proceedings at Guantanamo, we as a nation and as a people, and our “independent” judiciary’s Judicial Branch of government, will have clearly demonstrated that a profound hostility to the fundamental human rights and liberties that form the foundation of this nation and its (Constitutionally-limited, accordingly) government has permeated deeply into all three branches of our government, whenever Muslims, or aliens, or other demonized peoples, are the victims of those in our government who have decided, so far with impunity, to willfully abuse the powers of their public office.

      • bmaz says:

        Henderson is not a good place to hold out much hope; she is pretty conservative and has consistently backed the government on torture in civil cases such as Rasul/Iqbal. Rogers and Tatel may offer a bit of hope.

      • bobschacht says:

        Thanks for your excellent summary @59. It may be that these considerations are what a few people in the WH have noticed, which is why we see the WH backpedaling a bit today against the latest tidal wave threatening to sweep the trial of KSM out of civilian courts.

        After all, it would be a wee bit embarrassing to come out 4square for Military Commissions, only to have the Courts declare Military Commissions unConstitutional.

        Bob in AZ

      • DWBartoo says:

        Thank you, powwow.

        I would like to think what Bob, has said @ 81, that, ” … a few people in the WH have noticed …” may be true, for all our sakes, and, if it is, then your comment must have been riveting. As well, the other comments on this thread are an amazing education to me.

        However, my usual curmudgeonly doubt asserts itself in spite of the reasoned hopefulness in some comments that the Executive will come, ultimately, to accept reason, as the Supreme Court must insist that it does.

        Let us suppose, that after protracted wrangling with the lower courts, that the Executive finds itself before the Supreme Court.

        This Court has a “unique” relation to the Executive. Some of its members, famously or infamously, were part of a Court which insinuated itself, quite before it should have, possibly illegally, possibly un-Constitutionally, into the 2000 election. The Supreme Court of the United States of America, claiming that the precedent they were setting was, actually, not a precedent at all but a singular event, to be divorced from everything that came before it and everything that came after it. These “points” are merely my legally untutored opinion, and subject to debate and revision, as the facts may warrant. (My disclaimer)

        What is not subject to debate is that the Supreme Court, as it was constituted, in 2000, decided who the “winner” of that election was … the Supreme Court chose George W. Bush to be President of the United States.

        In his first term, this same George W. Bush, signed off on torture, and took unto himself, alone, the power to decide who was or who was not to be subjected to torture, to indefinite imprisonment without charge, and to other abuses and degradations of their sanity and their humanity. In order for George W. Bush to do all these many these things, a small legion, or perhaps, not so small, was required to willingly prepare the means and the methods of torture, legally quite as much as physically and mentally.

        Now the remainder of the Supreme Court as it is constituted today owes its position entirely to this same George W. Bush, with the exception, who is an Obama appointee.

        Ultimately, when this case comes up before the Supreme Court, it will also come down to political reality, I think, and little else.

        Politically, one may imagine that even before the election, Obama had signaled, possibly through the good offices of Cass Sunstein, or others, that he was “in” for the “cover-charge”, just as, it has been suggested, that he covered other “bases” as well, economically and so on …

        If the Court stymies Obama, the unraveling will only accelerate, and lead, ultimately, to implicating, if actual justice is to be done, both George W. Bush and Richard Cheney … which I cannot imagine will be allowed, especially politically, to happen. It would ruin the future if genuine, rule of law consequence, the primary business of the law, occurred …

        It shall have to be treated as it was with Nixon, a “healing” will be preferred and a shower of bipartisan flowers will fall from the heavens and our nation will bask in the perpetual peace of endless war, other aggressions, and clever economic gaming of the mortgaged home…land.

        Otherwise, the great unraveling will encompass much of Congress, many of the contractors hired for the endless wars … the intelligence agencies and so on … clearly, far too high a price to pay for mere justice, when moving “forward” would be ever so much easier.

        More likely, then, a diversion, perhaps a necessary, honorable and “good” war with Iran, will distract all attention to the war effort, even taking the economy stupid off the front burner, and, likely, other things may be counted upon to claim our attentions. Tiger ought to be due for a “comeback” ’round about then … one imagines. And the “problem” was just “a few bad apples” …


  5. JohnLopresti says:

    Pearlstein testimony at subcmte of SJC July 2009 on allied topic; her current review and update there. What I think the military option does is limit speechifying, as well as hide the taints. Some of the source documents on tortures are on sites that are embellished with photos of disgusting, adult rated, things. The kangaroo alternative lessens the imagery, arrives at the same conclusion.

    • BoxTurtle says:

      The military option ENABLES convictions that simply could not occur in a real court. Hearsay evidence is permitted. Anonymous sources allowed. Cross examination of witness may be limited or forbidden. Discovery strictly controlled, prosecutors are able to withold exculpatory evidence. Much lower standard of proof.

      It’s show trial, of the same type the old soviet bloc did to enemies of the state. One step above “shot while trying to escape”.

      Boxturtle (The strange sound you hear is my teeth grinding whilst I pound my head against the wall)

      • bmaz says:

        Curiously enough, in many regards (though certainly not all) the commission trial process was giving the defendants better due process and a fairer shake that I suspect might would occur in a federal trial court. And Obama was going to utilize military commissions for many of the other detainees anyway. I think this is more about setting root of a fundamental philosophy than it is about evidence and speechifying etc.

        • Leen says:

          “Curiously enough, in many regards (though certainly not all) the commission trial process was giving the defendants better due process and a fairer shake that I suspect might would occur in a federal trial court”

          Most of the trials that took place during the Bush administration were Federal is that right? Could you explain the “fairer shake” part again. Why is it that both Cheney’s, Graham, etc so want this trial in a military commission? Where would the illegal actions of the Bush/Cheney house of torture crew be better protected?

        • BoxTurtle says:

          Could you enlighten me as to better due process?

          Boxturtle (As a prosecutor, gimme those rules of evidence and the defendent can have all the due process he wants)

          • DWBartoo says:

            That looks like a good question as well.


            than “what” and “when”?

            And why and how?

  6. Leen says:

    Over at Crooks and liar a George Galloway interview with Andy Worthington on torture.

    The Black Hole of Guantanamo
    George Galloway interviews Andy Worthington on UK knowledge of torture on Guantanamo detainees for Digital Radio.

    I don’t know that there is anyone on this planet who knows more about what went on at Guantanamo than independent journalist Andy Worthington, and that includes those inside the administration. Through incredibly hard work, diligence and a mountain of FOIA information, Andy has been chronicling this deepest, darkest chapter of American history.

    Andy has written a book, The Guantanamo Files, that I am reading now and on which I will be hosting a book chat in the very near future. I can’t lie, it’s taking me longer to read it than it should, because I have to keep putting it down. There’s not a chapter I’ve read that I haven’t wanted to scream, “This should never have happened! This is not what a democratic country does! NOT IN MY NAME!” It is a detailed and unblinking look at not only a strange mixture of fear and incompetence, but of real evil as well. Indeed, Andy Worthington has been instrumental in documenting just what a legal black hole Guantanamo is:

  7. belewlaw says:

    I agree that from a practical perspective the commissions will be a disaster. There’s very little experience with the commissions and uncertainty about their legality. The process could be ugly.

    Having said that I suspect that they lack the votes to defeat an amendment (however questionable from a legal perspective) that would prohibit trial in a civilian court. There is also a very real threat to deny funds to close Gitmo. And there are other related issues: Dawn Johnsen, Justice Department lawyers who represented detainees.

    This move, if it happens, also reflects Obama as Gladstone’s “good butcher” in chopping off issues (and people) that are perceived as distractions.

  8. bmaz says:

    Well, there were only three commission trials; two to verdict, and one terminated with a plea. Again, the actual process as it played out in these, and several others that had activity in the pre-trial phase was not nearly as bad as most people believe. The real issue I have is the moral, constitutional and legal illegitimacy of the setup; far more so than actual concerns about the defendants. In several regards, the defendants might get a more honest shake in the commissions than in an Article III court. That, however, is beside the point because the commissions are freaking illegal and it establishes a black hole of justice for the future that is simply unacceptable.

    • DWBartoo says:

      So then it was your lawyerly sensibility, removed from the question of, as you say, of the “freaking illegal”ity of the commissions, that spoke to “better due process and a fairer shake”?

      So, really, then, it is not a good thing, for at least that one reason, for Obama to go with the commissions?


      • bmaz says:

        Oh, no, the military commissions at all, much less for all detainees including the 9/11 defendants, is an insanely horrid and contemptible idea that should not even be contemplated, much less effected.

        • DWBartoo says:

          That is what I thought, and have thought, all along.

          I am relieved that you also think that, as your earlier comment seemed to imply something different.

          Thank you, bmaz, for clarifying my confusion.


        • earlofhuntingdon says:

          Well said. Worth repeating. The German case discussed yesterday, the British and Spanish terrorism cases discussed earlier, the terrorism cases already successfully tried here, the great mob cases that brought successful convictions in NY and Chicago earlier, all bear testimony that they system works well. But only if used.

          Not using it is the state arrogating to itself powers it does not legitimately have. As with adverse possession, it can therefore acquire “rights” to such powers if the people – and their judicial and congressional representatives – fail to object and take them back. We should not allow the latter to happen.

          • DWBartoo says:

            The Courts and Congress appear to be on board with military commissions and appear to be set on that course.

            Have you reason to think to the contrary?

            It would also appear that neither the Courts nor Congress, who have both been punked on aspects of the “issue”, have taken much umbrage and also both appear to be deaf to the concerns of the people.

            This would seem to present a problem …


              • DWBartoo says:

                So then, bmaz, you are not of a mind to consider that the courts have been lied to, on a number of occasions, or that they have been lied to, are not impressed, and haven’t forgotten?

                Obama appears to be betting that the supremes are NOT over vexed, and, if they are so miffed, are they likely to intervene, say as they did in the 2000 election, you know … a non-precedent, precedent?

                Clearly you are more optimistic than I.

                Just as clearly, you know and understand far more than I, which is why I will closely and happily listen to what you consider offers you such optimism as you may have.

                I truly value your teaching moments, bmaz, as you are special among the more than several legal minds here whose considerations have the depth, breadth, and humanity necessary to weather this fraught moment.


            • BoxTurtle says:

              I’m unaware of any court ruling favoring the commissions. And I’m not sure congress can simply pass law that establishes a separate court system without allowing the same protections.

              Boxturtle (There’s that annoying constitution suicide pact, again)

              • DWBartoo says:

                If the courts have, or allow themselves, no “opportunity” to rule against the commissions then the commissions will go ahead, is that correct?

                Unless the courts raise questions, considering that we are without a rule of law, at the present moment … the voices of Congress are either quiet or in favor …

                So WHO may gainsay what is ACTUALLY going on?

                Unless this is the ultimate teaching moment for the multi-dimensional Obama to lay out his hand that he was merely playing the lawless along and will now spring the trap.

                If there is present, the actual resistance you speak to, rather than what SHOULD be going on, then such evidence as you have, would surely be appreciated by a lot of the rest of us.

                You and bmaz (who know far more than I) seem quite certain, or, at least, “hopeful”, that there will be “push-back”.

                I am pleased to hear that.

                I would be more pleased to see it.

                (Just to know that it has begun)


                • BoxTurtle says:

                  The courts don’t make that decision. But they must address whatever paperwork is put before them. The pushback from the courts will come when the first real lawyer appeals a military commissions ruling. Expecially when it is pointed out that the executive branch seems to be intruding upon what is more properly the providence of the courts.

                  See, the courts can’t act until someone brings it to their attention via paperwork. But once the forms have been filed the courts must respond, even if the response is the judicial equivalent of FOAD. And FOAD can be appealed.

                  Boxturtle (Congress passes unconstitutional laws with great regularity, but I cannot address them unless they are brought before me – W. Burger)

                  • DWBartoo says:

                    Yes, Turtle, I understand that someone with standing must bring the issue to the court, and, as you suggest, that is probably what will happen.

                    At that point, presumably, a legal crisis, what could be, actually, the beginning of a Constitutional crisis, would likely occur.

                    Would that be correct?

                    If this is so, and I most sincerely hope this would be so, and I would consider it likely to be so … were I to actually be convinced that a rule of law exists.

                    That aside, it would appear that the Executive is pursuing the tack that it is because it does NOT consider that the threat of crisis is either that great, or that it is convinced that it has allies and legal “power” sufficient enough to forestall the Court, or else it has, somehow, assured itself that the Robert’s Court will not look unkindly upon it at the crunch-time. Top secret, national security … and all that?

                    Yoo’s cavalier attitude, basically, giving the Court the “intellectual” equivalent of the Rahm salute, certainly suggests to me that he was, and remains, convinced that he is safe and secure. Someone or something has convinced the lot of them, despite Cheney’s shrillness, that they may not only make reality what they will, but also they have sealed history into being an official, and closed assertion, at least, “looking forward”.

                    There is also the question of massive Congressional complicity …

                    Other than the belief that all shall be allowed to pass, owing to the vast complicity of the entire political class, what else might or must the Executive truly believe to run such a risk?

                    Who, really, is the Executive gambling against?


              • bmaz says:

                Hamdan, and some corollaries, seem to indicate that the concept of military commissions, in and of itself, is permissible if properly established by Congress. However, the indication is also fairly clear that certain protections and process must be provided and that, if done, should follow that of military courts. Which is pretty funny because, of course, we already have a very established and available military court system. But neither Obama, nor Bush before him, want any part of the UCMJ; they want to establish a separate path from both Article III courts and the UCMJ to facilitate the black hole indefinite detention of people at their discretion. This is about the future as much as it is the past.

                • BoxTurtle says:

                  Yeah. As a point, I doubt congress will be able to pass a court system that will pass constitutional muster and still allow the government to do all it wants. Further, once the GOPers realize that the separate court system will apply to antiabortion and other patriot militia and democrats realize it would apply to environmental protestors and would likely be applied more firmly to minorities, I’m not sure the votes are there.

                  Boxturtle (Can they single out scary brown moslems under compelling government interest?)

    • MadDog says:

      …The real issue I have is the moral, constitutional and legal illegitimacy of the setup…

      Then I think you’ll enjoy my latest Seminal Diary:

      Dixieland Redux

      With the news that Military Commissions are likely to be our “First Line of Defense” for GWOT detainees including KSM, it appears that Chief of Staff “Beauregard” Emanuel has convinced President Obama Lincoln that in order to be “moving forward, not backwards”, he only has to nullify a good part of the Constitution, the Federal Judiciary and then surrender at Appomattox to South Carolina in order to form “a more perfect union confederacy”…

      • TarheelDem says:

        I didn’t. It really doesn’t go to the Constitutional and legal illegitimacy of the setup.

    • tjbs says:

      It nullifies the constitution because the KING or President decides who is and who isn’t an enemy combatant otherwise known as the power over life and death.

  9. sailmaker says:

    Let there be honesty in government here: rename GITMO. Call it Gulag Carrib or Islam Injury Island or some such. /s

    Truth is that these 188 poor duffers who may or may not be innocent have been so tortured that we can never try them in public let alone let them see the light of day: we won’t own up to the evidence of our crimes.

  10. earlofhuntingdon says:

    I hope it is Rahm is using the WaPoop like Cheney used the Times: to distribute information he can refer to later as both public and as established fact, while avoiding public ownership of the factual claims or their disclosure. That would make it Rahm punking his boss in order to win a bureaucratic fight with Holder and others.

    By putting it in the press, it also becomes a trial balloon whose reception Rahm can poll. If the numbers are favorable, or he presents only favorable poll results, it further pressures a wavering, principle-less Obama and a Holder who is still, apparently, trying to uphold the law and constitutional process.

    As with the Cheney-McCarthyite attack on Gitmo defense lawyers, this seems to be evidence that Bush and now Obama have taken us back in time, in part to the 19th century Gilded [for a few] Age, in part to the early 1950’s, when Republicans ruined the lives of thousands by smearing them.

    To use another analogy, history and contemporary politics are like evolution. The process is about local adaption; it is the pursuit of temporary, relative advantage, not progress. Measured in terms of “progress”, we’re on a dangerous negative slope that has no smooth or peaceful hyperbolic curve at its end.

  11. JohnLopresti says:

    Somehow I sense OIRA might intend to be participating in reviewing a proposed reconstitution plan for an ~MCA forum. I think that is what Margolis* plenary indulgence grant was addressing obliquely, and that is the counterweight on the otherside of Obama*s barbell workout. YooCo*s **frenzy** and OLCSCIF*s enhanced permeability likely were *at the behest* of WHC*s supervisor(s) (both exec and 4thBranch). I think that is why the current administration is trying to direct the given quantum of energy toward structure redesign whether by Johnsen or another comprehensively engaged person. I was reminded recently that OLC*s brief time under the current administration without a true advise and consent leader was preceded by 4yrs equally leaderless formally; now 5+. However it works out, fringe takeovers of the Republican party are becoming problematic for congressional functionality. One critic I read, a few weeks ago was proclaiming, yes, Obama has opted to utlize the strong presidency legacy Bushco left, given little else works. However, then we got reconciliation. It reminds me of a ballot initiative which should not pass, but to vote against it negates something even worse in consumer democracy.

  12. TarheelDem says:

    For Lindsey Graham it is all about demonstrating that war was necessary because using normal international law enforcement was “too sissy”.

    • MarkH says:

      TD wrote:

      For Lindsey Graham it is all about demonstrating that war was necessary because using normal international law enforcement was “too sissy”.

      ew quoted “Rahm’s mouthpiece”:

      the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba

      I think it fits the pattern of Republicans trying to prevent Democrats from achieving anything or of getting credit for achievements.

      Here they don’t want the trials in NYC and they don’t want the (preferred) normal court trials and they’re willing to trade “maybe getting the funds” to close Gitmo. Maybe?

      Can we have a civilian trial on the front doorstep of Goldman-Sachs? Think that’s a little too provocative?

      The public doesn’t care much about Gitmo, but Graham knows Obama wants to get his stuff, so he’s offering it. That shows it’s largely political and not real policy differences.

      Dems get credit for what? Trying people Bushies caught? That’s petty.

      Dems get credit for trying them in NYC? That’s probably the big fear of Repubs. I doubt the public there feels the same as Bloomberg. Somebody ought to poll them. If the public supports trials in NYC then maybe Sen. Gillibrand & Schumer should speak to the issue.

      So far I haven’t really heard any reason from Graham or anyone why a regular courtroom isn’t best, so maybe TarheelDem is right that it’s just a way for them to say Obama sank to Bush’s level by admitting it was a ‘war’ and therefore the invasion of Iraq was justified (in some sick perverted twisted stupid way). They also NEED a way to justify Abu Ghraib.

      I agree with Sen. Feingold.
      Try ’em in civilian courts.
      Try ’em in the place where it’s normal.
      Win in November.
      Close Gitmo.

  13. harpie says:

    Rahm’s Master Stroke; Scott Horton; 3/5/10

    As long rumored, Emanuel appears to be pursuing his deal with South Carolina Senator Lindsey Graham, under which Khalid Sheikh Mohammed and a group of prisoners tied to 9/11 will be tried before a military commission and not a federal court, in exchange for Graham’s support for closing Guantánamo.

    Read about McCain, [Graham, Lieberman]’s new Bill:

  14. rosalind says:

    (Question for the Techs: I was reading comments when my screen suddenly refreshed unprompted and switched me from Emptywheel to a site called “YoungHollywood.com”. I didn’t click on an ad that I’m aware of. This has never happened before. I’m on a MAC so don’t usually have to worry about Viruses. Wondering if something is up with FDL, or if it’s on my end)

      • MadDog says:

        I hit F5 to refresh and got taken to some version of YellowPages.com for Minneapolis.

        And a really strange, cryptic message about leaving the site and did I want to allow my personal information to travel along.

        Closed that tab and opened a new one for this post.

        Just happened that one time this afternoon if it’s any help to the backroom folks.

  15. Peterr says:

    If Rahm prevails and KSM ends up before a military tribunal, Holder might as well resign. Either Holder is the AG, or he’s not. If Obama wants Rahm to run the DOJ, let Obama appoint him to replace Holder as AG.

    If this happens and Holder still wants to stay at DOJ and pretend as if he’s running the place (all evidence to the contrary), that’s up to him.

    And Rahm, of course.

    • earlofhuntingdon says:

      I agree. Just as Dawn Johnsen should publicly “resign” if Rahm and Reid keep dicking around with her nomination.

  16. boloboffin says:

    So perhaps all of these “Rahm suckup” pieces haven’t been the prelude to Rahm seeking a better station in life, but a PR offensive meant to prepare everyone for this cave-in. Sorry to get all 11th-dimensional chess on you, but is that a possiblity?

    In other words, the White House gets to have its noble principles and sacrifice them, too. Rahm was right, we should have gone with Rahm, and now we will.

  17. BoxTurtle says:

    Depends on your definition of crisis. I think ObamaCo will be most unhappy with any court rulings and will appeal them to the supremes, ultimately I do not think that ObamaCo would disobey a SC order.

    If ObamaCo DIDN’T obey, and congress DIDN’T impeach, that would be a crisis.

    Boxturtle (ObamaCo will settle for time enough to get through the next election)

  18. fatster says:

    Changing their tune much?

    White House Won’t Make Decision On KSM Trial For Weeks
    “The White House said today the Obama administration won’t make a decision “for weeks” on whether to hold a civilian trial or military tribunal, or where to hold it, for self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed.”


    • MadDog says:

      Changing their tune much?

      I don’t read it that way. This was a deliberate “trial balloon” sent via WaPo stenographers to test the temperature of any Congressional and public response.

      Rahmbo and Co. will get their feedback and likely manipulate it to sell their case that the upside is bigger than the downside (i.e. remove a Repug attack vector and Democrats have nowhere else to go).

      Typical Rahmbo political shortsightedness.

      Some say he just picks the low hanging fruit, but that’s not a sufficient analogy.

      Rahmbo “Easy Pickin’s” Emanuel’s singular idea of politics is “take what you can get” rather than “get what you want”.

      Rahmbo “Easy Pickin’s” Emanuel is an anti-farmer who isn’t interested in plowing the field, planting the crop, watering the crop, removing the weeds, and then harvesting the crop.

      Rahmbo “Easy Pickin’s” Emanuel doesn’t want to work to get a crop. He just wants to harvest any crop.

      • fatster says:

        Oh. I thought it meant his trial balloon laid an egg.

        (He’s deserving of a harvest all right, though not of the kind he envisions and, fingers crossed, may it come sooner rather than later.)

        • MadDog says:

          I agree that this is likely a done deal decision.

          The “trial balloon” is merely the WaPo article for sneak preview/temperature testing/marketing purposes.

          Lacking any real successful pushback or effective opposition (as Obama/Rahmbo believe is likely the case), this will be “old news” when the actual decision is “announced” in several weeks.

      • MadDog says:

        And right on time, cue the Rahmbo spinsters via Faux News:

        Obama’s Decision on Location of 9/11 Terror Trials Part of Larger Puzzle

        …But reversing course on the plan to try suspected terrorists in criminal courtrooms could be pitched as a concession made for the greater goal of closing the Guantanamo detention camp. A source familiar with the administration’s policy review told Fox News that Obama is testing the waters to see how far he can push his base without sending it over the edge, for the sake of an elusive bipartisan bargain that would ultimately allow him to follow through on his pledge one day after his inauguration to close the Cuban military prison for good

        (My Bold)

    • earlofhuntingdon says:

      That’s a Rovian or Bushian use of the concept of making a “decision”. One suspects they already have one, have had one for some time, but are unwilling to admit or take the heat for it. They will make, ie, “announce” it, when they think no one is looking or when there are other distractions. Disingenuous doesn’t quite capture this purportedly Democratic administration.

  19. TarheelDem says:

    The obvious solution would be to pre-emptively close Guantanamo and distribute the detainees to detentions in the US. Let the firestorm pass, and then try them in ordinary criminal courts.

    But fait accompli is French and thus not in the White House’s vocabulary.

  20. JohnLopresti says:

    Two tangential matters: complaint by Vance and Ertel North Dist IL, v Rusmfeld; partial grant to proceed; at issue, two Americans denied counsel, tortured, imprisoned months. Other matter–detainee probono counsel firms* managing partners make statement to defend Holder from torture hawk lobby.
    It still may walk like a kangaroo and box like a kangaroo, however.

  21. bobschacht says:

    BT & bmaz,
    yeah, the problem with re-inventing the wheel is that everyone’s gonna want it to look and work like a wheel, and that once you establish that what you get is, well, a wheel.

    In the case of these courts, it is clear that the desire for a third court is based on a pretty transparent desire to cheat, while making it look like you’re not cheating. Putting the trial in these new “military courts” is a sure bet to drag out the drama for years, winding up with the Supremes.

    Bob in AZ

    • Leen says:

      Pathetic that Holder/Obama administration have been subject to so much pressure about where and what kind of court proceedings would take place.

      I thought this was Holder’s decision?

  22. GeorgeJohnston says:

    I hope Constitutional Scholar President Barack Obama can explain why treating terrorists like common criminals is bad and treating them as worthy adversaries of America’s trillion dollar a year civilian bombing and occupation machine is good.

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