Sunday, February 01, 2009

Who Knew?

Latest newspaper column:

As a lawyer who does criminal defense, I've recently discovered some words of comfort I can give clients charged with serious crimes.

That word is: We've got nothing to lose, because even if you go to the Department of Corrections, you will be almost immediately released into whatever community the prison is located in.

I have this on no less authority than the Republican Congressional Leadership, who have been in an absolute frenzy of pants-wetting fear over the prospect of Democratic President Barack Obama's order to close the military prison at Guantanamo Bay and transfer its inmates to U.S. prisons to await trial.

Of course, the Republican Congressional Leadership has been in an absolute frenzy of pants-wetting fear since Sept. 12, 2001, but this one seems to really have them shaking in their Gucci loafers. For you see, according to them, American prisons are simply not up to the task of, well, imprisoning anyone.

"Most local communities around America don't want dangerous terrorists imported into their neighborhoods, and I can't blame them," Minority Leader John Boehner fretted.

Republican Congressman Lamar Smith of Texas said, "I don't think we ought to be releasing these dangerous terrorists into our community in any way, shape or form."

Republican Sen. Saxby Chambliss of Georgia was even more scared by the prospects. "What we are going to have is, all of a sudden, in all likelihood, the release of some of those individuals into our society," he shuddered. "We know they are mean, nasty killers."

You hear that? These Republicans are warning us that American courts and prisons are like sieves.

Why, I'll bet World Trade Center Bomber Ramzi Yusef, Unambomber Theodore Kaczynski, Medellin Cartel Chief Assassin Dandeny Muñoz Mosquera, accused 9/11 plotter Zacarias Moussaoui, "American Taliban" John Walker Lindh, "Shoe Bomber" Richard Reid, and any number of other vicious criminals are, even as we speak, released by craven federal judges, out of their federal "Supermax" facilities, and roaming our streets, drinking beer, smoking cigarettes, making lewd remarks to our women, and generally making all kinds of mischief.

It must come as a great comfort to our country's worst homegrown killers that our prison system is so porous that even World Trade Center bombing mastermind Sheikh Omar Abdel-Rahman can bust out of the federal prison in Butner, N.C., whenever he wants -- and he's blind!

And who knew that the military was so incompetent at the whole prison thing? I sure didn't until Rep. Duncan Hunter, R-Calif., introduced a bill to keep Gitmo detainees from being transferred to military prison facilities in California. Sen. Sam Brownback and Rep. Lynn Jenkins of Kansas introduced similar measures to keep detainees from being transferred to the Army maximum security prison at Fort Leavenworth.

In Jenkins' words, "Fort Leavenworth is the military training center for the best and the brightest the United States Armed Forces have to offer. ... Transferring suspected terrorists to Fort Leavenworth would jeopardize this vital mission and would severely undermine the education and training of military officers around the world."

Thanks, Rep. Jenkins. Without you I would never have known that the Army was so slack when it came to holding prisoners that they can't be trusted to keep them from wandering out of their cells into the classrooms, and onto the training ranges at Fort Leavenworth!

Of course, that puts them at odds with Sen. John McCain. Remember him? He actually ran for president once! McCain said a while back that he'd close Guantanamo Bay and move the prisoners to Leavenworth. Good thing he didn't win, because according to his fellow Republicans, the military prison system is apparently run by the Three Stooges. The Republicans are supposed to be all pro-military, too, so you know if they're worried about the military's ability to hold these bad guys, then something must be really wrong.

All of this will undoubtedly come as a relief to America's criminal defendants. After all, if the federal system can't hold on to bad guys, how lame must the state systems be? The state prisons are probably like ghost towns, with the wind blowing tumbleweeds through them.

Wait, what's that you say? We actually have been able to convict, imprison and hold terrorists in custody? The people I've listed above are safely behind bars on American soil after receiving actual trials, with lawyers and everything? How can such a thing be? That would mean that the Republican leadership is stirring up irrational fear for obstruction and political gain! It would mean that all of these bills being introduced are political stunts and complete wastes of time! And we all know they'd never do that, don't we?

Don't we?

28 comments:

Fran said...

Why you old fear-monger you!

But you know, our justice system hasn't really tried to hold serious criminals, has it? I mean, Bush and Cheney are still walking free.

JD Rhoades said...

Heh. Good one.

FerfeLaBat said...

I think it was Pablo Escobar who figured out that - if he allowed small fry associates to get caught and enter a full trial scenario - some discovery process gave him inside info on what the Feds had on him and his organization. He had access to information that ws invaluable to getting his products through the gauntlet and into the US market.
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What protections are in place now that were not in place then that will prevent the same situation if we try terrorists as ordinary criminals in a justice system never designed for war tribunals?
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My guess is that the US will chose not to reveal sensitive information they have against these men and allow them to walk rather than reveal information and endanger agents and military personal still fighting the war. When these men go free, where will they go? According to several recent articles I've read, a lot of them go right back into the terror business.
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Not one of these men were read their rights when taken. Any information gathered that could convict them is not admisible in court. What are the odds that they will be convicted given that we would now be holding their case to a civilian standard and arrest executed by trained law enforcement officers.
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These are prisoners of war, not your ordinary run-of-the-mill criminal who has been processed normally. Do you sincerely believe the US civilian justice system is wired to handle this?
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I guess we are about to find out.

JD Rhoades said...

And where is Pablo Escobar now?

My guess is that the US will chose not to reveal sensitive information they have against these men and allow them to walk rather than reveal information and endanger agents and military personal still fighting the war. When these men go free, where will they go? According to several recent articles I've read, a lot of them go right back into the terror business.

I'm sorry you have so little faith in the military or the justice system that you think they'd allow dangerous criminals to go free. Especially since (see the column) we've convicted and imprisoned so many others.

And look, these guys have been in for so long that any operational plans they may no of have long since fallen apart. Do you think for a moment that, when the guy who knows all the facts about about Operation Whatever is caught that Operation Whatever isn't shut down?

FerfeLaBat said...

They let dangerous criminals go free all the time. My husband is a Fed. As a lawyer you should know there are all kinds of cases where the innocent end up behind bars and bad guys walk. No system is 100% even when all the bases are covered by professionals planning on a criminal case. How would a soldier know what to do to cross the t's and dot the required i's?

Escobar is famously dead and she they raided his home they found notebook upon notebook of sensitive information he'd compiled because of the cases brought against his people. Criminals and bad guys know how to work our system.

We are at war. You understand that, right? Closing Gitmo won't change that. Did you see that Obama also expanded renditions (started by Clinton)

"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism — aside from Predator missile strikes — for taking suspected terrorists off the street."


http://www.latimes.com/news/la-na-rendition1-2009feb01,0,7548176,full.story

This driving need to give prisoners of war a civil trial inside the US court system - it sends a really weird message to our enemies. Iran just publically called Obama a wuss. I'm thinking that's not a good development.

There must be alternatives to releasing them into the US court system. I hope Obama's people find a happy compromise before that happens.

FerfeLaBat said...

Pardon typos. Cardinals are losing and it's adversly affecting my typing.

JD Rhoades said...

I am perfectly aware, Ferfe, that we are in a war, but thank you SO MUCH for the reminder.

We are in a war with people who want to terrorize us into giving up our values, including the rule of law. The last eight years have been one long retreat in that war.

Iran just publically called Obama a wuss.

So? We're going to make important policy based on whether IRAN says we're pussies or not? Please.

Gerard said...

You think Escobar stayed out of jail by using documents from trial discovery? You don't think his success had anything to do with moving every night? Paying off any officials who asked for cash? Assassination and murder? Threat of murder to any opposition? Etc.?

FerfeLaBat said...

How is moving prisoners of war into the civilian court system upholding "our" values? It is assuaging some strange anti-war forced "guilt" agenda and it is irrational.

How many agents were put in danger because of the information Escobar had? How many times did he remove potential threats because of information gotten through the courts? You don't know. There are agents out there working on keeping us safe. The Civil court system trying Gitmo prisoners of war potentially puts those people in danger. My guess is - the people who want to treat these men as common criminals and put them into the court system are doing so because they could care less about the men and women who risk their lives to keep us safe. Am I wrong?

On Iran calling Obama a wuss:

If you will recall the Cuban missile crisis happened because Russia perceived us as weak based on Kennedy's willingness to wait three hours for a meeting with Kruschev. History is repeating itself here. I'm perfectly fine with mad dictators hating us, but I really don't want them thinking they can take us down.

JD Rhoades said...

You realize, of course, that Iran has a vested interest in having us do things like detention without trial and torturing people. So if they call us "weak" for not doing those things, does it ever occur to you that maybe they're trying to play us?

And if you can't see that holding people indefinitely without trials or without any meaningful way to challenge the validity of their confinement, purely on the say so of the Executive, is a violation of core American values, then you truly have lost your way. The civilian court system you so despise convicts people a lot more dangerous than this all the time.

How many agents were put in danger because of the information Escobar had? How many times did he remove potential threats because of information gotten through the courts? You don't know.

And neither do you. I decline to let policy be made based on your most paranoid fantasies.

My guess is - the people who want to treat these men as common criminals and put them into the court system are doing so because they could care less about the men and women who risk their lives to keep us safe. Am I wrong?

You could not be more wrong.

JD Rhoades said...

They let dangerous criminals go free all the time. My husband is a Fed. As a lawyer you should know there are all kinds of cases where the innocent end up behind bars and bad guys walk. No system is 100% even when all the bases are covered by professionals planning on a criminal case.

No system is 100%. Just because a system is not 100% is no reason to abandon it. Some of the people that were imprisoned in Gitmo were let go by the Bushistas. Some of the people subject to rendition turned out to have no connection whatsoever to terrorism. That regime is far less effective, then than 100%. Even by your logic, we should therefore close Gitmo.

FerfeLaBat said...

I've lost my way because I do not believe prisoners of war should be tried in a civil court system. Ok. As long as that makes sense to you then I'll accept that you know more about how this should work than I do. My understanding of POW camps was that - as long as the war was on or until a prisoner exchange and diplomacy could negotiate a resolution - we kept them off the battle field so they can't kill us. Since they behead any prisoners they take a prisoner exchange probably isn't happening. Their countries of origin have not signed the Geneva Convention documents - so that doesn't apply. We've tried to negotiate a return for most of them but their countries of origin wil not assure us that they will be treated as well as we are currently treating them. So the solution is to grant them US citizenship (or the equivalent) and try them for crimes committed on a battle field potentially emboldening our enemies to subject our own soldiers to similar trials in foreign lands for propaganda theater. It will at least delay the beheading for awhile.

That works for me. Thank you for showing me the logic.

Tom Panek said...

One huge misconception here, in both the way it is defined and the way we treat the situation, is that these prisoners are "war criminals." War criminals? What war? It's only a war by the narrow definition of a narrow-minded administration bent on achieving its goals through fear-mongering. We could more effectively pursue these people if we stopped treating them like combatants and started treating them like the psychopathic, cold-blooded criminals they are. To elevate this conflict to "war" status is to give their ilk credence. They are no more than thugs who group together and strategize how to spread their mayhem. When we recognize them as policy-shaping, society-altering influences on how national and regional governance and politics are shaped, we allow them to have the influence they want. Treat them like we do organized crime. Bust them up and prosecute; get the evidence and put them away. Do it through the criminal courts, expedite their trials and mete out their punishment. But don't look and act inept by incarcerating them for years on end while we debate the ethics of their treatment and waffle in the courts about who among them can be prosecuted and who cannot. Get them in the system, try them and be done with it.

And on the world stage, quit all the posturing the DOD has to go through to protect "classified information" that impedes and colors this whole situation. They are thugs. Common criminals. Put together a task force to get rid of them.

Tom said...

Okay, everybody get into their asbestos underwear, 'cuz this is going to cause flames . . .

We've entered the age of 4th Generation Warfare, and the ascent of non-national, asymmetrical actors. The old paradigms are inadequate for the analysis and response to 4GW.

Pierre Sprey was a Pentaqon exec who came to Washington during the early McNamara days. He stayed well into the '80s. He was one of the fathers of the F-16 and A-10 (this just to demonstrate that he understands warfare).

He's one of a group of former and current military and defense insiders who are telling us we've made a bitter mistake. 9-11 was not an act of war; it was a criminal act, says Pierre, and so say his colleagues and co-authors. We should have treated it as criminal action (thus, civilian court trials) rather than elevating the status of the Taliban and Al Queda.

Their book is called AMERICA'S DEFENSE MELTDOWN. To see more about it, see this web address:

www.d-n-i.net/dni/2008/10/29/americas-defense-meltdown/

If you'd like a PDF copy, I can provide it (with the authors' blesssing). Please don't list your e-mail addresses here in clear form. We need safe e-mail exchange to defeat spiders and robot addy harvesters.

Tom said...

I mentioned Pierre because he was a guest on 'Bill Moyers' Journal' this weekend. I left that out of the above epistle.

Sorry. Talk about burying your lead . . .

FerfeLaBat said...

But - can we take people off a battle field in Afghanistan, transport them here and then try them? Don't we usually have to have them extradited or something with the co-operation of the country where they were found? Or are you going further back in time and saying we should never have invaded Afghanistan in the first place in retaliation and somehow let the FBI (which at the time was not sharing info with Customs and the CIA0 find the culprits and arrest them. How would that work in countries like Iraq and Afghanistan? I don't think the FBI can go to other countries without that country authorizing it and the Taliban probably would not have authorized it.

We can't go back in time. What does the author recommend we do from this point forward?

I'd like to read that book.

Tom Panek said...

Regarding Pierre Sprey's take:

"He's one of a group of former and current military and defense insiders who are telling us we've made a bitter mistake. 9-11 was not an act of war; it was a criminal act, says Pierre, and so say his colleagues and co-authors. We should have treated it as criminal action (thus, civilian court trials) rather than elevating the status of the Taliban and Al Queda."

Thank you for underscoring my point, Tom. This is exactly what I am talking about. If I can recognize these people for what they are, why can't our governmental experts?

FerfeLaBat said...

Strangely enough I may have found the answer to my question:

Biden surprises Pakistan with warrant on Osama Bin Laden
Sitha Nair
Jan. 26, 2009

http://www.indiadaily.com/editorial/20462.asp

So. We present pakistan with a warrant, Pakistan catches him and turns him over to us. It's simple! Why didn't Bush do this? It will work. I'm sure of it. problem solved in a civilized fashion. Until then President Obama continues to bomb locations inside Pakistan which seem counter-productive. A new mystery to solve.

FerfeLaBat said...

"9-11 was not an act of war; it was a criminal act"

So it was like painting graffiti or something only international in scope. They don't want to undermine our way of life or disrupt our economy in order to advance their own society and world view - that would be an act of war. They were just out on a lark blowing things up because they could.

I'm reading through this theory and trying to process the logic of it.

Didn't Bin Laden issue a statement or something way back in the day saying why he blew up our boats and buildings? On the one hand that's a confession, but it's probably not admissible in court. on the other hand, I could swear he called this a war or something. We've so dilluted the word "war" anymore, it's hard to tell what he actually meant.

David Terrenoire said...

I have said this for years. These people are not warriors. They are criminals.

And Ferfe, they are POWs either. If they were, they would be held under the Geneva Accords, which the Bush administration wanted to circumvent. So they created an aentirely new class, the enemy combatant.

This way they could hold anyone indefinitely with absolutely no rights.

This, to Dusty's point, is a denial of our basic principles. We know that innocent men have been housed in Gitmo and the black sites we have in other nations.

This is not what the action of a civilized nation. This is not our rule of law. This is immoral, illegal and destructive to the nation. If we "win" using these tactics it will by a Pyrrhic victory and we will regret it.

FerfeLaBat said...

They've got a good case for an insanity defense. Just say'n.

All kidding aside - you included the Taliban in that wide net. What would attempting to siphon a sitting government (at the time)of a sovereign nation through the US court system do to our legal process? How would that work - assuming we could get them to turn themselves in peacefully.

JD Rhoades said...

The problem with the whole "war" classification is that it's a "war" that ends whenever the President says it does. The final upshot of that, as I've pointed out many times, is that it gives the President unlimited authority to lock people up with no review of the circumstances or validity of their confinement, and that power lasts until the President says it doesn't, which is to say never.

I don't trust anyone with that kind of power. Not George W. Bush, not Barack Obama, not George Washington if he was still alive.

Our entire Republic is based on the proposition that someone csn tell the President "no, you can't do this".

Tom said...

Ferfe, as I understand the proposition advanced by Sprey et al, a nation can't declare war on a non-nation. There can be civil war, certainly, within a nation (and, dammit, the Tamils and Sri Lankans are at it again). Still, a band of independent ideological agressors cannot be considered a sovereign state.

As to " . . . ending the charade," there will be big problems here at home. As a group, we still want to hurt someone, some group, somebody, anybody, for 9-11. We don't really understand the notion of roaming bands of thugs with international reach and intentions of mass destruction.

So war - even wrongheaded, mis-aimed, disfunctional war - is popular because of our need for vengeance and our desire to see some return on our public ($$$) and personal (blood and lives) investments.

Moyers asked Sprey much the same question about ending the misnamed War On Terror. Sprey shook his head and said something to the effect of, "The President knows that would be very difficult. He'd have to be very brave to put an end to it and get on the rational footing."

JD Rhoades said...

"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Except when you actually look at the text of the order, it says:


Sec. 6: Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties."

So Obama is not continuing the same "Extraordinary rendition" program that delivered prisoners to countries that torture. The Convention against Torture states:

"1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Tom said...

Downloadable .pdf of AMERICA'S DEFENSE MELTDOWN available free at this site (with permission of the authors, honest!):
http://www.cdi.org/pdfs/AmericasDefenseMeltdownFullText.pdf

M. L. Kiner said...

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www.StrategicBookPublishing.com/TheHongKongConnection.html

Gerard said...

"The Hong Kong Connection" is a legal thriller about a gutsy female attorney

That was helpful.

Tom said...

Anyone have some pineapple and mesquite wood, so we can grill that spam?