Comforting the enemy
Andrew McCarthy:
"If you were under the impression that the 9/11 atrocities marked the long-overdue end of a suicidal government philosophy that terrorists and bombs should be fought with indictments and trials instead of missiles in the air and boots on the ground, guess again. A number of our esteemed federal judges did not get the memo. And having been such a ringing success at running prisons, schools, and housing developments, they've now decided to give micromanaging the prosecution of war a try.
"Such is the unmistakable message of Thursday's decision by a divided panel of the U.S. Court of Appeals for the Second Circuit in New York in the case of Jose Padilla (a.k.a. "Abdullah al Muhajir"), alleged to be an al Qaeda-trained dirty bomber. Despite the existence of very active military hostilities against an international terror network that has already executed domestic mass murder, the two-judge majority held that the president, the commander in chief responsible for conducting the war, is without authority to detain as an unlawful combatant an operative he found to have been dispatched by the terror network to carry out further slaughter, including the detonation of a radiological weapon of mass destruction. Padilla must instead, according to Circuit Judges Rosemary S. Pooler and Barrington D. Parker Jr., be charged and tried in a civilian court, where he would be entitled to the panoply of rights accorded criminal defendants � including, of course, massive amounts of discovery regarding what we know about his al Qaeda activities and how we know it.
...
"Under the Hague Convention of 1910, enemy combatants may be lawful or unlawful, based on whether they are subject to a formal chain of command, wear uniforms, carry their weapons openly, and conduct their operations in accordance with the laws and customs of war. Obviously, those who serve al Qaeda, a non-sovereign, multinational terrorist organization that clandestinely designs and executes indiscriminate mass homicide, are unlawful combatants.
"While lawful combatants generally must be released at the cessation of hostilities unless some egregious conduct has rendered them triable as war criminals, unlawful combatants have no such right. It was once common for them to be executed summarily, although as Chief U.S. District Judge Michael B. Mukasey observed earlier in the litigation, 'such Draconian measures have not prevailed in modern times in what some still refer to without embarrassment as the civilized world.' Instead, it has long been established, as the Supreme Court recognized in its 1942 decision in Ex Parte Quirin, that unlawful combatants may be tried by military tribunals � even when civilian courts are available.
...
"The Second Circuit's decision would do immeasurable damage to the prosecution of the war on terror � undermining those who are fighting it, clothing terrorists actively abetting al Qaeda in the rights of common criminal defendants, and forcing the government to reveal sensitive information to those terrorists in civilian criminal proceedings at the very time that information is most needed to defeat the enemy and protect national security. The government has the option of seeking review from the entire Second Circuit (i.e., all thirteen judges) or proceeding directly to the Supreme Court. It must do so with all appropriate speed."
Thearticle has a lengthy and worthwhile discussions of the arguments of both sides in this case. It is worth the read.
Andrew McCarthy:
"If you were under the impression that the 9/11 atrocities marked the long-overdue end of a suicidal government philosophy that terrorists and bombs should be fought with indictments and trials instead of missiles in the air and boots on the ground, guess again. A number of our esteemed federal judges did not get the memo. And having been such a ringing success at running prisons, schools, and housing developments, they've now decided to give micromanaging the prosecution of war a try.
"Such is the unmistakable message of Thursday's decision by a divided panel of the U.S. Court of Appeals for the Second Circuit in New York in the case of Jose Padilla (a.k.a. "Abdullah al Muhajir"), alleged to be an al Qaeda-trained dirty bomber. Despite the existence of very active military hostilities against an international terror network that has already executed domestic mass murder, the two-judge majority held that the president, the commander in chief responsible for conducting the war, is without authority to detain as an unlawful combatant an operative he found to have been dispatched by the terror network to carry out further slaughter, including the detonation of a radiological weapon of mass destruction. Padilla must instead, according to Circuit Judges Rosemary S. Pooler and Barrington D. Parker Jr., be charged and tried in a civilian court, where he would be entitled to the panoply of rights accorded criminal defendants � including, of course, massive amounts of discovery regarding what we know about his al Qaeda activities and how we know it.
...
"Under the Hague Convention of 1910, enemy combatants may be lawful or unlawful, based on whether they are subject to a formal chain of command, wear uniforms, carry their weapons openly, and conduct their operations in accordance with the laws and customs of war. Obviously, those who serve al Qaeda, a non-sovereign, multinational terrorist organization that clandestinely designs and executes indiscriminate mass homicide, are unlawful combatants.
"While lawful combatants generally must be released at the cessation of hostilities unless some egregious conduct has rendered them triable as war criminals, unlawful combatants have no such right. It was once common for them to be executed summarily, although as Chief U.S. District Judge Michael B. Mukasey observed earlier in the litigation, 'such Draconian measures have not prevailed in modern times in what some still refer to without embarrassment as the civilized world.' Instead, it has long been established, as the Supreme Court recognized in its 1942 decision in Ex Parte Quirin, that unlawful combatants may be tried by military tribunals � even when civilian courts are available.
...
"The Second Circuit's decision would do immeasurable damage to the prosecution of the war on terror � undermining those who are fighting it, clothing terrorists actively abetting al Qaeda in the rights of common criminal defendants, and forcing the government to reveal sensitive information to those terrorists in civilian criminal proceedings at the very time that information is most needed to defeat the enemy and protect national security. The government has the option of seeking review from the entire Second Circuit (i.e., all thirteen judges) or proceeding directly to the Supreme Court. It must do so with all appropriate speed."
Thearticle has a lengthy and worthwhile discussions of the arguments of both sides in this case. It is worth the read.
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