Posted by MataHarley on 21 May, 2009 at 12:50 pm. 1 comment.

Mike’s A has already posted the contrasting transcripts of both the current POTUS and former Veep on another thread. There was certainly a boat load of soaring rhetoric of feel good BS and high minded morality on Gitmo unloaded on the national viewing audience with which to take issue today.

But for the moment, I want to address Obama’s assertation that federal courts were adept at trying the “worst of the worst” detainees by holding up Zacarias Moussaoui, Ramzi Yousef and Ali Saleh al-Marri as examples. In fact, there is a vast difference between these men and their particular circumstances and those Obama wants to import to the US judicial system.

First, when feasible, we will try those who have violated American criminal laws in federal courts – courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear. Ramzi Yousef tried to blow up the World Trade Center – he was convicted in our courts, and is serving a life sentence in U.S. prison. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker – he was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.


Recently, we prosecuted and received a guilty plea from a detainee – al-Marri – in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania – bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.

Ramzi Yousef was arrested in Pakistan, and extradited to the US in 1995 or early 1996. He was tried for crimes committed on US soil… i.e. the 1993 WTC bombing, and a 1994 bombing of an airliner. Note… crimes committed on US soil and against our federal laws. Not a conspiracy to commit a crime or support for jihad. There was also the letter he sent claiming responsibility as evidence, as well as his laptop files and computer disks.

Zacarias Moussaoui was educated in London, and lived in Okalahoma, taking flight training in 2001. He was arrested on US soil – in MN in 2001. I’ll repeat that… unlike Yousef, who was tried and convicted for “crimes” committed but arrested in Pakistan, Moussaoui was captured within the US borders, and prosecutors had substantial evidence of his culpability.

Ali Saleh al-Marri was initially detained in Peoria, IL under a traffic stop, and detained in civilian jails until he was designated an unlawful combatant a month or so later by the Bush administration. Ali Soufan’s questioning of Mohamed al-Kahtani, who mentioned al-Marri as a relative, led to terrorism charges. al-Marri, arrested and operating on US soils, was not transferred to Gitmo, but sent to the Naval Consolidation Brig in SC, and tried in US courts. Again… arrested and operating in the US, and on our soil.

Evidence against al-Marri’s charges of being an AQ operative charged with facilitating post 911 attacks included corrorated evidence that he had been trained in use of poisonous chemicals, and was also tasked with exploring computer hacking methods. His laptop contained not only info about the chemicals, but hacking software.

UPDATE: Mata Musing: I see Curt and I are on a parallel thought today INRE this duplicitous attitude towards detainees… as he points out in his post, al-Marri will be free in 9-15 years. END UPDATE

While we’re at it, let’s include Salon’s Glenn Greenwald’s list of others tried in US courts posted back in Jan 2009 under the title of “The newest fear-mongering campaign from the Right and the media”. To Obama’s list, Greenwald adds several more.

Sheik Omar Abdel Rahman, convicted, 1996, U.S. District Court (before then-U.S. District Judge Michael Mukasey) — plotting terrorist attacks on the U.S. (currently: U.S. prison, Butler, North Carolina);

Rahman operated in the US, and was arrested in Brooklyn in June of 1993.

Richard Reid, convicted, 2003, U.S. Federal Court — attempting to blow up U.S.-bound jetliner over the Atlantic Ocean (currently: U.S. prison, Florence, Colorado);

British citizen subdued by American Airline passengers on a flight from Paris. The flight was diverted and landed at Logan, where Reid was arrested after the shoe bomb elements were detected.

Jose Padilla, convicted, 2007, U.S. Federal Court — conspiracy to commit terrorism (currently: U.S. prison, Florence, Colorado);

Padilla was arrested in Chicago in May 2002, detained until June when he was subsequently labeled an enemy combatant.

Iyman Faris a/k/a/ Mohammad Rauf, convicted, 2003, U.S. Federal Court — providing material support and resources to Al-Qaeda, conspiracy to commit terrorist acts on behalf of Al Qaeda (currently: U.S. prison, Florence, Colorado);

Faris was outed by KSM in March of 2003, and detained while living in Columbus, OH. He agreed to perform as a double agent for the FBI, was was quickly arrested while texting information to the enemy while sitting in a Virginia safehouse.

Masoud Khan, convicted, 2004, U.S. Federal Court — conspiracy to commit terrorism as part of Lashkar-e-Taiba and Islamic jihad (currently: U.S. prison, Terre Haute, Indiana);

Khan was one of 11 arrested, also known as the “paintball terrorists”. He traveled to Pakistan from his Gaithersburg, MD home to train with the Taliban. All eleven were arrested on US soil, in MD, PA and VA. You might want to consider that the jury rendered verdicts on only 12 of the original 32 counts, and four of those were not guilty.

John Walker Lindh, convicted, 2002, U.S. Federal Court — providing material support to the Taliban (currently: U.S. prison, Florence, Colorado).

Of all, Johnnie boy is the only American citizen… certainly the only obvious one to have immediate access to the US judicial system by the nature of his citizen status. He was captured in Afghanistan by the Northern Alliance in Nov 2001. Even at that, the legal process was fraught with motions and requests to unseal documents, suppress involuntary statements and agent interrogation evidence.

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In contrast to all of the above heretofore mentioned, the vast majority… if not all… of the Gitmo detainees have never set foot on US soil. They were captured overseas and on a war battlefield, not in the US under law enforcement charges. Evidence is not as forthcoming (i.e. how many laptops and emails do we have on those captured on the battlefield??), and what may be admissible is certainly under question with the EIT’s battle.

In fact, the access of Gitmo detainees to the US court system is only made possible by the SCOTUS…. and that decision has been nothing short of mind boggling in it’s far reaching ramifications for future justice when considering what evidence may be available, and what may be admitted.

These foreign combatants, who fight for no specific state/nation and never set foot on US soil, are largely accused of crimes of conspiracy or aiding/abetting. This seem to fall under the jurisdiction of international “war crimes” or perhaps Universal Jurisdiction.

The question is, is a conspiracy to commit acts of terrorism (or more accurately to wage war against infidels) enough to trigger such universal principality in the case of these detainees? And if it were so simple a way to introduce them to the US court system, why would it not be done?

Or does this require the “crime” and attack to have already taken place… hence a law enforcement measure instead of intel collection during time of war?

Universal Jurisdiction is not only isn’t used, but doesn’t even seem to be on the Obama admin’s radar as a possibility. In fact, back on Feb 20th, I posted about another Bush-lite Obama maneuver – the admin’s decision to deny Constitutional rights to detainees held at Bagram. The Obama justice department argues that the detainees at Bagram are being held as part of an ongoing military action. At that time, I posted a Jan 7, 2009 link to the Washington Independent, calling Bagram Obama’s Gitmo… as the detainees there indeed differed little from the Club Gitmo denizens.

“We’re talking about the exact same situation as Guantanamo,” said Tina Foster, executive director of the International Justice Network, which is representing the four detainees in conjunction with law clinics from Stanford and Yale law schools. “People are removed from whatever country or jurisdiction they happen to be in and taken to a place for the purpose of evading any legal requirements or obligations.”

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The question before the district court today – and an important question facing the new Obama administration — is whether the same principles will hold true for some 600 men being held at Bagram.

The Bush Justice Department insists they do not. It argues that unlike Guantanamo Bay, Bagram is a temporary air base set up during wartime and that Afghanistan maintains sovereignty. Though Bagram, like Guantanamo, is leased indefinitely for the exclusive use of the US military and a status of forces agreement confirms broad US control over the base and its residents, the government insists Bagram is different. The US hasn’t had the lease for as long; and, “the military base is in an active theater of war where the US military, along with the host nation’s security forces and the troops of some 40 nations, are engaged in daily combat,” Justice Department lawyers wrote in a brief to the court.

But lawyers for the detainees say there’s a big difference between people seized on the battlefield and held temporarily for questioning or turned over to local authorities for prosecution, and people picked up in other countries and sent to a US-controlled prison that happens to be near ongoing hostilities.

“Amin was abducted in Thailand,” says Foster. “But for the US having brought him to Afghanistan, he would have been nowhere near Bagram or Afghanistan. So the argument that they’re holding him in close proximity to ongoing hostilities is a problem of their own making.”

Joseph Margulies, law professor at Northwestern University, agrees. “The United States can choose to house people anywhere,” he said. “They make a choice to move people closer or farther way from the conflict. You wonder whether the law should sanction that kind of manipulation.”

Under the laws of war, says Margulies, “the US has an obligation to move people away from the battlefield after the point of capture. So the US cannot maintain that while there may be boots on the ground in Afghanistan, Bagram airfield is a battleground.”

But if prisoners at Bagram have the right to challenge their detention in US courts just as prisoners at Guantanamo do, does that mean that thousands of suspected Taliban or al Qaeda members being held by the United States as part of the war on terror will have the right to flood American courts with their claims? As the government puts it, to give them all habeas corpus rights “would have a crippling effect on war efforts.”

We already know the Obama admin’s stance on detainees at Bagram. And while he continues to sell his “hasty decision” to the public on his rapid fire decision to close Gitmo hours after taking his oath of office, he’s deliberately ignoring his Gitmo-parallel path in Bagram.

So when will the MSM start asking him, what is the difference between the detainees at Gitmo and Bagram? If brought again to the high court, will SCOTUS redefine Bagram also as US sovereign territory, as they did Gitmo?

The parallels cannot be missed. Detainees in both facilities are foreign nationals, picked up on, or in proximity to, the overseas battlefields. Unlike the examples above – who either committed jihad attacks on US soil, or were arrested and operating on US soil – the Bagram detainees bear all the hallmarks of the Gitmo detainees. Can we expect these detainees to flood the US judicial system as well?

Obama’s mistruth is comparing apples (the above US tried terrorists) to oranges (Gitmo detainees). And at some point, someone’s going to pick up on the real apples to apples (Gitmo to Bagram) example, and call Obama out on his forked tongue of morality.

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UPDATE: Tallguy over at Free Republic also made a great point about the differences between the above terrorists tried in US courts, and the detainees.

There is another basic difference between the terrorists apprehended in the US and the Gitmo inmates: the manner of their arrest. US soldiers/Marines/sailors are not law enforcement personnel who arrest people under the 4th & 5th Ammendments and who secure evidence for legal proceedings. Coast Guard personnel are a different matter, but I would be surprised if any of the GITMO detainees are there as a result of an arrest by a Coastie.

The reason I mention this is that any legal proceedings in our federal courts are going to attract top lawyers like sharks to blood. These lawyers are going to make so many pre-trial motions concerning evidence & arrest that the judge is going to go blind. It may not be possible to try these detainees using the normal procedures.

H/T Tallguy… steller observation that I totally missed.

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