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Obama shouldn't give in on terrorist trials

The Obama administration's sense of despair is almost palpable, which is the only reason I can think of for why it may be considering a preposterous "grand bargain" with Republicans on Guantanamo and terrorism trials.

First a little background: Earlier this year, the administration announced that Sept. 11 mastermind Khalid Sheik Mohammed would be tried in a federal court in Manhattan. People could and did disagree, but this was a legitimate legal and policy choice. The White House and Justice Department have since reconsidered because of objections from New York City officials about the expense and logistics of securing the proceedings. (What's mind boggling here is that the administration did not consult with NYC before it made the determination to hold the biggest terrorism trial in the country's history in the heart of one of the country's most densely populated cities.) Now, the administration is said to have all but settled on a military commission for Mohammed. Again, a legitimate policy and legal call, but one that comes with potentially devastating strings.

I'd like to know more about whether and how seriously the administration pondered the question of holding KSM's federal trial in another location. After all, a federal trial for KSM in Kansas -- with a New York jury, a New York judge and following New York-specific trial rules -- would carry virtually the same legitimacy as one held in New York proper. Still, if the administration determined that a full and honest review of the law, the facts and the logistical circumstances now point strongly toward a military commission, I'd have no problem with that -- if limited to the Mohammed case.

But the administration may not stop there -- and that's the biggest problem. The White House is said to be considering a "grand bargain" with Sen. Lindsey Graham (R-S.C.), who believes that all terrorism suspects should be tried in military commissions and has introduced legislation to block such suspects from being prosecuted in federal courts. The irony is that although conservatives often argue that the president should use "all available tools" to fight the bad guys, they apparently don't want one of the most tried and true tools -- federal courts -- to be in that arsenal. This, to my mind, is incredibly foolish and an unnecessary and unwise restriction on the president's choices.

One variation on the potential grand bargain would have Republicans lifting their objections to closing the Guantanamo prison if the president agrees to try all terrorism suspects -- including those captured in the future -- in military commissions. In this scenario, Obama would trade away for himself and future presidents the ability to use the criminal justice system for at least some terrorism suspects in order to achieve his political goal of closing Guantanamo -- an idea that is breathtakingly bad.

We all wish for simple answers -- clear determinations that in one fell swoop fix a particular problem. But life rarely works this way, and the handling of terrorism suspects certainly does not lend itself to this simplistic approach. Judgment and wisdom -- as nebulous as they may be -- must come to bear on these decisions, and every case must be dealt with on its own merits. Some terrorism suspects may be best and most legitimately tried in the new and highly-improved military commissions recently signed into law that guarantee defendants legal representation and many of the protections found in a traditional setting. There may be some suspects who are deemed extremely dangerous based on intelligence but against whom there is not sufficient evidence to prosecute in a conventional venue. These suspects should be detained, and their cases should be reviewed periodically by an independent federal judge with the power to order release under laws and rules passed by Congress and signed by the president. And then there may be cases that would best be carried out through the traditional federal court system -- among the most respected justice systems in the world. This is the opposite of coddling, as some conservatives have argued unconvincingly. Since when is holding a suspect accountable under the full weight and force of the law a sign of weakness?

The president must resist the temptation to cave on principle -- abandoning federal courts altogether -- to achieve his desired political goal of closing Guantanamo.

By Eva Rodriguez  | March 5, 2010; 12:51 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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War on terror is unwinnable by mere force.We are not fighting regular armies and well identified enemies.We are fighting individuals or small groups of individuals whom we can neither detect nor identify.Sleeping cells of such terrorists have already been deployed all over the whole world. Such type of war could go on and on for many decades without any definite outcome. However,we can win this war very easily by finding out the real cause behind such terrorist formations and trying to eliminate it. The short sighted step of creating Israel on the ruins of Plaestine and its innocent people has led to the creation of such terrorist groups who are ready to sacrifice their own bodies in a holy war against Israel and the countries that suport its apartheid regime.Once we stop our unlimited support to the Israeli military gangs whose only game is to kill as many Palestinian women and children as they can everyday,once all Palestinian refugees return home to their stolen land and belongings under un resolution 194 which Israel arrogantly refuses to implement, once a secular state is established on all the land of Historical Palestine for Jews,Moslems and Christians with equal rights and responsibilities and without any kind of descrimination, all terror in the world will defintely disappear for ever and withou a single gunshhot.

Posted by: smhh4 | March 5, 2010 1:52 PM | Report abuse

I absolutely agree with this analysis of the situation. President Obama still believes that he can get something from Republicans to help move this country forward, so he capitulates on certain issues. HE IS WRONG. Nothing will placate the Republicans except his complete and utter failaure. DoJ was right the first time; let's move ahead with the trails on U.S. soil in U.S. courts.

Posted by: gsross | March 5, 2010 3:26 PM | Report abuse

Spot on. The main problem here being that nobody could have predicted the wild and red-hot intensity of right-wing opposition to fair trials and the closure of Gitmo. But the New York decision was a mistake and there are plenty of places where KSM could be tried instead: in this country, in full view of the world. We can do this safely and properly. If we can't then we will give in to fear and paralysis as the Republicans seem to desire.

Posted by: gposner | March 5, 2010 3:40 PM | Report abuse

Bowing to the right-wing nutjobs who have no respect for the rule of law would be a grave mistake.

Posted by: Gatsby10 | March 5, 2010 4:34 PM | Report abuse

When I heard the trials were going to be in NYC, I thought that was one of the dumbest things I've ever heard. The objections from New Yorkers and others were very predictable once the risks and costs were identified. It was even dumber than promising to close Gitmo by a fixed date without a real plan in place. Both decisions demonstrated a propensity to act without thinking through the consequences. He was wrong big time on both counts. And people call Sarah Palin dumb!

Posted by: jfv123 | March 5, 2010 4:36 PM | Report abuse

There are not "plenty of places where he could be tried instead." There has to be VENUE for a federal trial -- in other words, the crime had to have been committed there. That leaves NY, DC, Virginia, and possibly Pennsylvania. New York was the obvious choice and one Guliani would have insisted upon had he been mayor and Bush President.

Posted by: fmjk | March 5, 2010 5:28 PM | Report abuse

These individuals are not military force personnel of a foreign power, and as result do not warrant military tribunals. In my view KSM and his associates are criminal hijackers and murderers plain and simple, and as such, should be tried in the US Justice System and get just what they deserve - Gas, Electric, or Injection, in New York, Pennsylvania, Washington, DC or Virginia. This is where the crimes were committed, and any would be good choice. Since New York does not want it there, move it to Pennsylvania or Virgina, come on, poke your head above the weeds and move on.

Personally, I want them strapped in a remote controlled plane out the boneyard in Arizona and corkscrewed into the ground at 500 MPH in the most remote area of the Nevada Test Range televised around the world on CNN. This will send a very clear message to potential terrorist - this what what happens to HIJACKERS and MURDERERS here. And NO CLEAN UP REQUIRED.

Posted by: TomW_924 | March 5, 2010 7:02 PM | Report abuse

The PEOPLE have the right to put this fiend on trial. Don't let the Republican fear machine take this right from us.

Posted by: mike_midwest | March 5, 2010 7:41 PM | Report abuse

Problem is that it was a loopy idea to start with to try enemy combatants in civilian court, on several counts:

1. No one claims that trying bank robbers or personal injury lawsuits in military courts is a good fit. So why claim that unlawful enemy combatants are "best tried" by civilian lawyers?

2. The argument that you must treat any who oppose you with armed force as "mere common criminals" to delegitimize them is a tactic the Jewish Bolsheviks started. Continued by Stalin. What we know is few Soviets accepted the legitimacy of the tactic or considered the Gulag and executees actual criminals. But the Terror that stood behind it was an effective intimidator.
After them, you had Nazis, Colonialists from Algeria to Vietnam, Apartheid S Africa with MAndela and the ANC, and the Israelis with any Palestinian that opposed their land and water grabs - in the practice of "de-legitimizing as criminals all opponents". It rarely worked.

3. When military tribuals were convened by everyone from Washington to Jackson to Lincoln to FDR to Nuremberg to unlawful Japanese enemy combatants, few if any questioned their legitimacy to try unlawful enemy combatants.

4. No AQ operative considers themselves as "criminal". They are military trained combatants on Jihad that believe God endorses their activities as moral and within God's intents and graces. That such Islamoids routinely violate Hague and Geneva is completely beside the point to them. As long as the Qu'ran and Sharia are satisfied, silly Western rules don't apply.

5. As Islamoids outside organized state militaries do not take infidel prisoners and offer Quarter - perhaps the simplest thing to do is for us to offer no Quarter either until AQ accepts and offers reciprocity.
No prisoners, no problem.

Posted by: ChrisFord1 | March 5, 2010 7:46 PM | Report abuse

America's neofascists are afraid of open and fair trials for the same reasons Nazis and Bolsheviks -- and Islamic extremists -- feared them.

Posted by: patrick3 | March 5, 2010 8:46 PM | Report abuse

People need to wake up and stop enabling authoritarian-minded Republicans and politically expedient Dems to scare people into abandoning vital principles of our Constitution and freedom-protecting safeguards such as civilian courts and jury trials.
Sen. Lyndsay Graham and McCain are taking the disastrous and dangerous step of requiring the Pres. to imprison terrorism suspects, including Americans, under military detention w/out basic protections of our Constitution found in civilian trials...abuse and torture of Americans will be the result...what could be more threatening to our way of life??

Posted by: Civilius | March 5, 2010 9:42 PM | Report abuse

Rodriguez hearts terrorists. And who says "journalists" are out of touch?

Posted by: diehardlib | March 5, 2010 9:50 PM | Report abuse

He already did his Idiot Attorney General handed the terrorist his freedom if it goes to civillian court.The question is was it intentional?

Posted by: Imarkex | March 5, 2010 11:45 PM | Report abuse

Caving in and folding on terror trials is the last straw for me with Obambi.

Under this loser president, we Democrats have gone from the Party of the Big Tent to the Party of the Cheap Tent.

Please resign, Mr. Obama.

Posted by: secretaryofspite | March 6, 2010 1:49 AM | Report abuse

Almost all of them should get civilian trials, and this shouldn't even be a debate. Unless you actually were captured on a battlefield, one with actual fighting, you should get a civilian trial.

Obama opened the door to this by trying to have it both ways. Civilian courts are better at trying accused terrorists. They've been at it much longer. There is no moral, ethical or legal argument of any soundness for selectively charging some people under courts martial and others in Article III courts.

Posted by: Scientician | March 6, 2010 1:57 AM | Report abuse

let me just say that ChrisFord1, you are absolutely CORRECT. The rest of you, I feel, would be much happier someplace else. Cuba. Or Venezuela. Or North Korea, even. That's where you wanna go, if a good SHOW TRIAL is what you want.

Posted by: GoomyGommy | March 6, 2010 7:52 AM | Report abuse

Even if the military commissions are used this will end up back where it belongs, in federal courts. The SC rulings have already seen to that.

As for being held in NYC, motions for moving the trial is the job of the defense, called a change of venue.

In other words this is all nothing more than posturing.

Posted by: timothy2me | March 6, 2010 8:05 AM | Report abuse

The scientician - "Almost all of them should get civilian trials, and this shouldn't even be a debate. Unless you actually were captured on a battlefield, one with actual fighting, you should get a civilian trial."

Not a single Nazi War criminal or Japanese one tried by military tribunal was captured "on the battlefield".

Clearly this guy never served. Only grunts are on the battlefield, not their Puppetmasters.
And if any grunt goes out and does a war crime on their own, like William Calley at My Lai. they are long gone from any battlefield "scene of the crime" as their actions are investigated and charges contemplated - then a "capture" happens in some municipality in Alabama or Colorado months later.

timothy2me - "Even if the military commissions are used this will end up back where it belongs, in federal courts. The SC rulings have already seen to that.
As for being held in NYC, motions for moving the trial is the job of the defense, called a change of venue.
In other words this is all nothing more than posturing."

1. No, the military justice system is a stand alone system that only has SCOTUS review. Appellate reviews are done by military officers higher up the food chain, not civilian lawyers - until or unless the Islamoid or miscreant US soldier gets to SCOTUS, and then only if SCOTUS wants to touch it.

2. Anyone can petition for a change of venue. Not just the terrorist lawyers or sex offender's family...Prosecutors if they can establish a tainted jury pool, fiscal/staffing/lack of expertise restraints. Leaders of a community with a well-founded fear of public safety, civil disturbance.

3. This is hardly "posturing". It is which justice system unlawful enemy combatants should go in. The one that Western Law has sent them to since the history of the modern nation-state began, or the Left and progressive Jew's insistance that we must now change everything and put them in civilian justice system.
Posturing would be a foamy-mouthed Lefty demanding Cheney being sent to the Hague for waterboarding and "extra-judicial executions" of "innocent 'til proved guilty in a court of law", terrorists - While of course ignoring Bill Clinton's Rendition Program, Pelosi's past enthusiasm for "life-saving enhanced interrogation", and of course Obama blowing up SUVs of innocent until proven guilty in a court of law Islamoids. Not to mention Obama finally having the nuts to order SEALs to spatter the brains of 3 Somali "children" off their coast.

Posted by: ChrisFord1 | March 6, 2010 1:40 PM | Report abuse

ChrisFord1: "Jew's insistance that we must now change everything...."

Wow! I was actually giving serious thought to ChrisFord1's arguments until I realized he was just a raving anti-Semitic bigot.

What a freak!

Posted by: uh_huhh | March 6, 2010 2:23 PM | Report abuse

uhhh-huuuh: Responding to the following quote as "raving anti-Semetic bigotry:

"This is hardly "posturing". It is which justice system unlawful enemy combatants should go in. The one that Western Law has sent them to since the history of the modern nation-state began, or the Left and progressive Jew's insistance that we must now change everything and put them in civilian justice system."

Like it or not, the Left and Progressive Jews that run the likes of Human Rights Watch and Constitutional Lawyers Guild and ACLU have been in the forefront of insisting that all enemy are really for civilian courts and civilians on juries to deal with. ....

If you think those FACTS about the left or various progressive Jewish legal Fronts are bigoted, blame the facts..

But the day is long gone when the smear tactic of calling any critic of the Left a "racist reactionary"....worked.
And long past the rhetorical tool of calling any critic of Jewish Bolsheviks, thieves of Palestinian lands on the West Bank, or pro-criminal/pro-terrorist progressive Jewish lawyers "raving anti-Semites" - having any working utility..

It worked for a while, but over repetition of the smear strategy has put much of it into a "boy who calls wolf too much" realm.
And suffering of long, long ago does not immunize other groups from criticism - try as much as blacks, Cuban exiles, 'persecuted' right wing militias, radical Muslims, gays, professional feminists etc. do to claim their own immunity from any criticism.

Posted by: ChrisFord1 | March 6, 2010 4:43 PM | Report abuse

Another bleeding heart liberal. How about the rights of the people who were violated by these terrorist? Heavens, we just can't help ourselves but to give them the same rights we have. Did any of these terrorist sign the Geneva Convention? Nope! But the AG and his pals can't wait to represent them. What did FDR do the the Nazi Saboteurs that were captured on US soil during WWII? One helped the FBI, the other were questioned, fed and then SHOT! What part of this do you not understand.

Posted by: elcigaro1 | March 6, 2010 5:40 PM | Report abuse

A civilian court, a military court, judgement before God, it does not make a difference, guilty is guilty.

Posted by: jameschirico | March 6, 2010 6:29 PM | Report abuse

The civilian trial was a farce from day one. When the POTUS went on national TV and declared the defendant WOULD be convicted, the trial became a KANGAROO COURT worthy of the Islamist countries from which the terrorists come. How can anyone believe Obama is a "Constitutional scholar" when he betrayed the FOUNDATIONAL concept of the document--innocent until proven guilty--without a second thought?

Obama is trying almost as hard to destroy our Constitution as he is trying to destroy our medical system.

Posted by: VisceralRebellion | March 6, 2010 7:58 PM | Report abuse

The Attorney General made the correct decision to try these criminals in an Article III court. Perhaps a trial in Manhattan would cost too much, but Virginia is an equally appropriate venue and the Marine Base at Quantico or the Army Base at Ft. Belvoir would provide all the necessary security.

As with health care reform, the action needs to be framed as a moral issue. If Britain, Germany, India, Indonesia, Pakistan and Spain can use civilian courts convened in regular courthouses in populated cities, so can the United States.

David Gergen was on NPR this weekend and used the word "flipflop" to describe what a reversal of Attorney General Holder's decision would be. It would also be political manipulation of the Department of Justice. As for Senator Graham's threat to stop transfer of prisoners from Gitmo to the mainland, just ignore him and ship them by military aircraft to a military base, for example, the Navy base in Charleston, SC, and see what Senator Graham has to say. If Teddy Roosevelt could sent the U.S. fleet halfway around the world without Congressional approval, President Obama can send a few military prisoners at least halfway to New York.

In addition, a conviction in an Article III court need not involve the U.S. Supreme Court -- if the trial is sound and the Court of Appeals agrees. A trial in a military commission will inevitably go to the Supreme Court, thus further delaying the administration of justice.

Posted by: jsj20002 | March 7, 2010 8:03 AM | Report abuse

Rodriguez writes: "one of the most tried and true tools -- federal courts "

This is a liberal myth.

Yes over 300 people have been convicted for acts of terrorism in federal courts. But the average sentence ranges from 4 to 9 months !

Why ? because the offenses were overwhelming minor.. support for terrorist charities etc.

The prosecutors themselves working the major terrorist trials.. like the first World Trade Center bombing acknowledge damaging leaks of intelligence happened.. apparently 300 co-conspirators became aware they were "known" to authorities because of liberal disclosure laws in the civilian trial.

How many other terrorists and co-conspirators might have been identified ? early and captured or killed had we not immediately halted the questioning of the Christmas day bomber ? We may never know.

Posted by: pvilso24 | March 7, 2010 12:12 PM | Report abuse

The Obama administration cannot be trusted with the war on terrorism. How can they? They even shy away from the word itself.
Also, Obama is liberal and must cater to the liberal left of his party. The liberal left shares the viewpoint of the terrorists. They both depise the U.S.

Posted by: scvaughan | March 8, 2010 8:34 AM | Report abuse

In fact the the lawyers engaged to prosecute terrorists by liberal Eric Holder have a history of doing pro bono representation on behalf of terrorists, as does holder's law firm.
If you are a terrorists who likes to kill Americans, Holder's your guy.

Posted by: scvaughan | March 8, 2010 8:40 AM | Report abuse

I agree that Obama is caving into the right wing. I have no idea why. When Bush administration sends 100's of terror suspects to federal court it's fine. But when Obama does it, it means he is weak on terror. He can't possibly believe that? I think he looks week to the people who voted for him. It has already been shown that the federal courts have been MORE effective than military tribunals in convicting and sentencing terrorists.

This is a big, big mistake.

Posted by: rlritt | March 8, 2010 8:59 AM | Report abuse

The lawyers hired by liberal Holder to 'prosecute' terrorists have a history of doing pro bono work on behalf of terrorists, as does Holder's former law firm.
If you are a terrorist who likes to kill Americans and get caught, Obama and Holder are your guys.

Posted by: scwittels1 | March 8, 2010 9:31 AM | Report abuse

Liberal Holder puts a far higher priority on prosecutuing CIA members than terrorists. His only priority on terrorits has been on defending them.

Posted by: scvaughan | March 8, 2010 10:10 AM | Report abuse

C O P Y of a recent note
To Hon. Barack H Obama
Subject Try terrorists as terrorists


Dear Mr. President:

A majority of your fellow citizens
Are pleased at the prospect that you
Will soon decide that bringing terrorists to justice
Is outside the U.S. criminal justice system's purview.

And would welcome a decision
Regarding the military tribunals' venue
That would result in trials at Guantanamo
With no Miranda rights; and attendant fuss and ado.

You can have no doubt that such a decision
Will not only give terrorists more than their due,
But will also be fiscally prudent--
A latent characteristic of you.

Don't pay attention to your appointed Attorney General
Who--based on his advice to former-President Bill Clinton
to be lenient on FALN terrorists--
Has leanings toward softness on terrorists/ism
Re: which you should take a most jaundiced view.

Pay heed instead to the (now not so) silent majority
In this historically meaningful nation,
Forget about closing Guantanamo
And save us all from further related aggravation.

Posted by: Gonzage1 | March 8, 2010 11:44 AM | Report abuse

This is the stupidist argument for an irresponsible decision made by Obama and an Obama buddy, DOJ Eric Holder.

Show no concern about the safety of our citizens who believe in the Constitution and protect the scum who want to destroy the US Constitution.

Stick to your 'guns' and ignore the safety of New Yorkers.

And above all, demand a huge waste of taxpayer dollars for nonsense.

Bring it on!

Posted by: mlemac | March 8, 2010 12:01 PM | Report abuse

Our Constitution is for Americans. It is not for "military combatants" or terrorists from other countries.

No treaty or convention covers pirates or terrorists not in the uniform of a country. We could take them out and shoot them without a trial.

Or as Tom W suggests, take them to the dessert and ram them in the ground at 550 mph.

Obama and Holder are WRONG to take this to court in NYC. The ACLU wants this cause the chance is great the terrorists would be let go. Actually, the ACLU needs to be let go, too! The risk in NYC is too big. Obama has already shown Al Quida he is soft on terrorism.

Posted by: annnort | March 8, 2010 2:43 PM | Report abuse

Well, Eric Holder has put 9 lawyers in the "Justice Department" ...lawyers who have defended "terrorist" ....they defended for "free" ......

Obama should never have moved those "terrorist" to N.Y. in the first place. They should have a military trial. that was made clear a long time ago. Obama just can't stand to be wrong.

He must be disappointed a lot.


Posted by: paulann1 | March 8, 2010 6:09 PM | Report abuse

Republicans my butt........N.Y. does not want those "terrorist" there. and was not even ask.

This has to bring back so many unhappy memories for those people who live there.

It was not my family who the terrorist killed, but if it were, I would hate to have the trial next door.


Posted by: paulann1 | March 8, 2010 6:12 PM | Report abuse

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