This week’s back-and-forth among Barack Obama, John McCain and the press over Obama’s statements about what due process rights the detainees at Guantanamo Bay ought to have — and whether it reflects a 9/10 mindset on Obama’s part — misses a larger point.
Prof. Ann Althouse struck closer to the mark with her dissection of Obama’s comments, noting the degree to which they represent Obama’s effort to not reveal his stance on the issue. Hardly anyone has bothered to note Obama’s stance as to what to do with suspected terrorists moving forward — and he does have one.
Barack Obama is a co-sponsor of S. 576, the “Restoring the Constitution Act of 2007,” which provides in part as follows:
SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.
Paragraph (1) of section 948a of title 10, United States Code, is amended to read as follows:
`(1) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant’ means an individual who is not a lawful enemy combatant and–
`(A) who directly participates in hostilities in a zone of active combat against the United States; or
`(B) who–
`(i) planned, authorized, committed, or intentionally aided the terrorist acts on the United States of September 11, 2001; or
`(ii) intentionally harbored any individual described in clause (i).
The term is used solely to designate individuals triable by military commission under this chapter.’.
Note the degree to which the next Khalid Sheikh Mohammed does not fit under that definition and thus would not be tried by a military commission, as the US has traditionally done. But you do not have to take my word for it, when you can consult the other side of the debate:
Elisa Massimino, Washington director of Human Rights First, said the new bill would remedy several legal problems her organization has identified in the Military Commissions Act, particularly in the area of habeas corpus rights. She said the definition of “enemy combatant” is “hugely important” because it would draw a line between actual combat and the Bush administration’s ambiguous “global war on terror.”
“It would go to the question of whether the whole of our counterterrorism effort is going to be considered an actual and legal war,” Massimino said. “Congress hasn’t taken that issue head-on.”
Allahpundit has highlighted some of Obama’s more hawkish statements regarding taking out terrorists, but President Clinton was not beyond the occasional cruise missile strike either. There’s nothing particularly post-9/11 about that approach. Obama’s mindset beyond Gitmo would leave him in the same position as Clinton in the event that a nation like Yemen offered to hand over someone we believed to be involved in terrorism against the US, but lacked the type of evidence needed for a trial of the matter.
Wait, how does KSM not fall under (B)(i)?
Isn’t this just par for the course with Baracky? He seems to spend an extraordinary amount of time and effort to not actually say anything, or not reveal his actual policy choices.
He does, the next one doesn’t.
I, for one, have a serious problem with a law that specifically calls out one single instance of a crime. In fact, isn’t that un-Constitutional?
Duh. A key word, that next. Gracias.
I, for one, have a serious problem with a law that specifically calls out one single instance of a crime. In fact, isn’t that un-Constitutional?
Those are called Bills of Attainder, if I recall correctly, and yes, they’re blatantly unconstitutional.
Pablo, KSM does. The next KSM, the mastermind of the next mega-attack, however, will not be covered by this definition… unless he is foolish enough to then “directly participate in hostilities….”
Does anything in particular stand in the way of defining an “unlawful enemy commander, mastermind, planner (what-have-you)’ as opposed to mere ‘combatant/footsoldier’ for the purposes of the law? Is there any conceivable, coherent reason to make the omission other than the error of oversight, a simple failure to be thorough?
Would this cover it: “They’re not anti-war; they’re just on the other side.”
Aside from going around the recent Supreme Court ruling on the rights of detainees by shooting first, detaining second–is there a plausible means by which the military can do an end run around the ruling?
I was thinking about this last week in light of Indiana’s weird “Riverboat Casino” laws. In order to run one in Indiana, a casino must float on a body of water. Furthermore, the casino must travel on a body of water, so they pull a few feet away from shore once or twice a day and everything’s legal.
I wonder if the military is considering just such a scenario.
…otherwise, I expect this will be heard frequently in Iraq and such places:
U.S. Soldier:
You have the right to remain silent.
You have the right to an att–…
Aw, fuck it.
BLAM
…oops.
See not only does he narrow the scope to 9/11:href
but in the next section; he puts so many obstacles in the way that it becomes impossible to try him:
Restoring the Constitution Act of 2007 – Amends federal provisions concerning the prosecution of unlawful enemy combatants by U.S. military commissions to, among other things: (1) repeal the authority for civilian trial (prosecution) counsel in a commission proceeding, but authorize civilian military defense counsel; (2) exclude statements made by coercion; (3) authorize the Secretary of Defense to make exceptions to commission procedures and rules of evidence as required by unique circumstances of military or intelligence operations during hostilities; (4) provide for self-representation by the accused, while requiring assistance by military defense counsel; (5) authorize the military judge to order trial counsel to disclose to defense counsel the sources, methods, or activities in which witnesses or evidence against the accused was obtained; (6) require commission decision review by the U.S. Court of Appeals for the Armed Forces rather than by the Court of Military Commission Review; (7) provide the scope of review of detention-related decisions; (8) repeal a provision of the Military Commissions Act of 2006 prohibiting invoking the Geneva Conventions (Conventions) or similar protocols in any habeas corpus or other action to which the United States is a party; (9) require the President to notify other parties to the Conventions that the United States expects members of U.S. Armed Forces and other U.S. citizens detained in a conflict not of an international character to be treated in a manner consistent with the Conventions; (10) include as War Crime offenses the denial of trial rights and the imposition of cruel, inhuman, or degrading treatment or punishment; (11) restore habeas corpus for individuals detained by the United States; and (12) provide for expedited judicial review of civil actions that challenges any provision of the Military Commissions Act of 2006.
If RICO had that many exemptions back in 1970; the Five Families would still
control the mob.
Maybe I should have said ‘conceivable coherent reason the bill’s authors would be willing to say out loud in public’?
Spoilsport.
I mean McGehee, I’ve known they were on the other side in the war since mid 2002. They couldn’t have been plainer about it. I also know they pretend to have a political theory they are occasionally willing to articulate, although less and less it seems, as time goes on. I caught a commenter at Feministe in the act a few days ago, honest, forthright, in the open…”equality of results” was the boildown. But not being of their political persuasion I find myself often at a loss as to the proper articulation of their intentions. And in this instance, I don’t know how to use “equality of results” in framing a law outlining who does and who does not instantiate an unlawful enemy leader. I suspect in the event their position will have something to do with ‘utopia’ and ‘unicorns’ but I couldn’t prove that as I sit here now.
RTO Trainer:
More to the point:
“who directly participates in hostilities in a zone of active combat against the United States”
As I read it, the next KSM is NOT considered an unlawful enemy combatant if he’s engineering the next 9/11 from, say, his apartment in Germany.
BTW, does anyone else find the title of the act, “Restoring the Constitution Act of 2007,” more than just a little arrogant? The founding fathers and all our ancestors must be spinning so hard in their graves that the earth may spin out of its orbit.
I find Obama extraordinarily scary. Find fault with McCain all you want, but he’s the only thing standing between us and Obama with a Democratic Congress.
I see this as yet another swipe at troop morale by the democrat congress. I also think it will, by intention, have a chilling effect on military recuiting.
I also belive this to be the aim of the Supreme Court justices who handed down last week’s ruling on habeus corpus.
“BLAM
…oops.”
Yup, Cowboy. That’s how I read that law, too.
#10
Yepper
#8
According to the lefties I know there is need for a WOT. We are overreacting to 9/11. Therefore terrorists must be protected from Bushs overeaching.
Hugs for thugs. Get those jihadis some counseling (on Medicaid’s dime, of course).
Whoah, whoah, whoah…
That bolded bit — isn’t it forbidden to subject lawful combatants to criminal trials?
Massively arrogant.
Because everyone rememebers the 400,000 trials we had during WWII for all the German detainees that were being held stateside. A real stickler for the Constitution, that FDR was.
[…] nothing particularly post-9/11 about that approach. Obama’s mindset beyond Gitmo would leave him in the same position as Clinton in the event that a nation like Yemen offered to hand over someone we believed to be involved […]
[…] pointed to legislation he supported as a senator in 2006 — but that legislation was far more radical than what is described […]
[…] pointing to legislation he supported as a senator in 2006 — but that legislation was far more radical than what is described […]