Kaffee vs. Jessup II?: Obama and McCain Square Off on Habeas Corpus Rights for Accused Terrorists

I live in the most southern part of the Netherlands. In recent years I adopted the grave of a WWII U.S. Army soldier Erie County, PA, who found his final resting place at the Netherlands American Cemetery at Margraten, the Netherlands. Since the waning days of WWII it is a Dutch tradition to adopt the U.S. graves at this cemetery. This tradition is passed on from generation to generation.

These young U.S. Servicemen payed the ultimate price for us to live in a free, democratic society which commits itself to safeguarding fundamental universal principles in the past, the present and the future. They paved the way for U.S. Nuremberg Chief prosecutor Robert H. Jackson to set the tone for the way modern post war democratic societies organized the values which we cherish so much. This is what always made me feel so proud of the Americans who liberated my country more than sixty years ago, so I couldn't agree more with the statements of Barack Obama pertaining to bringing Bin Laden to Justice and thus preventing this murderer from becoming a martyr. Reason prevails over fear. I am really thankful to Barack Obama that he is able to renew the values so eloquently stated by Robert H. Jackson in his Opening Statement before the International Military Tribunal (at Nuremberg) : “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Americans are stupid if they think that habeas corpus doesn't matter. I have no criminal record, but I was held prisoner by the U.S. government for 5 months and extradited 1200 miles to another state without a letter to my governor. There is a criminal docket report in the federal court district of Western Wisconsin which shows that I was committed and held without bail and also shows that there were no criminal charges. The Assistant U.S. attorney Robert Anderson appeared and said that the government was not a party to this, but I was imprisoned anyway. The person who imprisoned me was a court clerk, Theresa Owens, who signed as judge. I have a downloaded copy of the court calendar and it shows that on that date 5/11/07 there were no hearings involving me, no hearings involving her, and no hearings involving Magistrate Crocker. I have a dated pdf and I sent a copy by email to the U.S. judiciary. But when I checked the court calendar again it had been changed to show that I had a hearing before Magistrate Crocker, although he was off that day and the transcript shows that Theresa Owens officiated. I sent two filings to the same court one by FEDEX and one by US Express mail and neither one were docketed for unknown reasons and the federal court will not discuss this. The federal courts are crooked and you could be the next victim.

As far as "National Security" is concerned, there doesn’t seem to be much daylight between the positions of McCain and Obama with respect to keeping everything "on the table" regarding the threat of attack on Iran, keeping everything "on the table" with regard to the need for 'some' domestic, anti-terrorist spying, and keeping everything "off the table" regarding the impeachment of the Iraq war criminal, Bush.

El_Pajaro, President Bush's long term vision for defeating the Islamic terrorists in their jihad against Western Civilization is a three-step process. The first step is for Iraq and Afghanistan to become thriving democracies, and role models for their neighbors. The second step is the two-state solution to the Israeli-Palestinian conflict. With both countries also being thriving democracies, and additional role models for their neighbors, then hopefully their neighbors will demand that their countries turn to democracy. The third step is for the Islamic world to end their hate-filled, anti-Western Civilization curricula throughout their education systems. This three-step process is the only way to defeat the terrorists. It will not be easy and will require great sacrifice and patience. It is going to take decades, or more precisely a couple of generations, for it to come to fruition, if ever.

James Danley,

I am 100% with you on the "defeat the terrorists" part. I think we just differ on how to do it.

When I look at the war on terror from where I stand it looks like we are fighting mosqitos with canons. We are acting like Goliath in the fight against David and I don't like it one bit. Because we are the good guys and bin Laden is no David.

If we want to defeat terrorism it takes less muscles and more brains than what we have shown so far. And it requires us not losing ourselves to fear and hate.

Repost:

El_Pajaro, the 9 to 1 ratio is based on the old adage: "It is better that 9 guilty men go free then to convict 1 innocent man." It is an arbitrary number to make the point that the American justice system should error on the side of innocence and that even if 9 guilty men are freed in that process it is better than to incarcerate even one innocent man.

The point I was making was that with the U. S. Supreme Court's latest ruling it will now place these accused terrorists into our regular civil court system and all of the usual evidentiary rules (i.e., hearsay is not allowed except in very limited situations) and procedures which adheres to the afore mentioned adage. So I then applied the old adage to whether is really is better that 9 guilty terrorists be freed in the effort to NOT detain one single innocent man. And then I pointed out the ramifications of applying the old adage to individuals accused of being terrorists.

Now then to your point number 5: "What if every case of mistreatment of innocents made another 10 or 100 young men join al Qaeda to fight what they see as American injustice?" We can do the what ifs all day. What if we just let al Qaeda kill innocent people and just ignore it? What if we all just converted to Islam? You do know that would require adhering to ALL of the tenants of Islam! No music, no drinking, no TV, no movies, no ...you get the idea!

The fact is that the Islamic extremist are dedicated to their jihad against the United States and the Civilized World. You cannot negotiate with these fanatics since they are already willing to die for their cause. So there are only two options: We defeat the terrorists or we die!

Or maybe the information that was gleaned from the detainees was successful in foiling subsequent attacks.

And my point is to say, this is not an easy issue and I would suspect a Democratic administration would have wrestled with this as much as anyone else.

Its also easy to look back now after 6 years without any attack on our homeland, and say, well, they weren't really an existential threat after all.

Aaron, very well put!!

Allow me to attempt to be a little bit non-partisan:

1. After 9/11 and the fighting in Afghanistan resulted in picking up non-Afghan fighters who really do not fit well into the Geneva guidelines, the government came up with their Gitmo solution.

2. Military tribunals were planned. This took too long, but such is life with lawyers. Then the tribunal were challenged in court, appealed, etc. This took more time. Such is life with lawyers.

3. Finally, the courts said, you need Congress to pass a law. That took time, but was done.

4. Now the SCOTUS says that the law isn't good enough. (right or wrong) and now everything changes again.

So, everyone who is complaining about 6 years without trial should temper that criticism by realizing we didn't have anything set up to deal with the situation at hand. This issue hasn't been ignored, its just been percolating through our government which takes a long time. Let's have some perspective here.

Vernonwerge, even if we did know that Saddam Hussein didn't have WMDs it still doesn't matter. ONE of the conditions of the 1991 cease fire was that IF Saddam Hussein no longer had WMDs he HAD TO PROVE THAT HE NO LONGER HAD THEM. He did NOT prove that he no longer had them, therefore he continued to violate the conditions of the cease fire. SO we felt that 12 years of trying diplomacy to get Saddam Hussein to comply with the conditions of the cease fire agreement was long enough. When the UN Security Council refused to follow through on their "final ultimatum," President Bush issued his own final ultimatum. Saddam Hussein called what he perceived was a bluff by President Bush. But when Saddam Hussein once again failed to comply, President Bush rescinded the cease fire and invaded Iraq. This was in accordance with several UN Security Council resolutions.

Now then you wrote: "I believe the evidence is over whelming that he manipulated evidence and stretched the truth to such a degree it was no longer the truth." Explain to me then how it was that in 1998 -- when Congress gave President Clinton the authorization for regime change in Iraq due to his WMD threat -- Gov. George W. Bush (R-TX) manipulated the evidence which caused President Clinton, VP Al Gore, Secretary of State Madeleine Albright, National Security Adviser, Sandy Berger, Sen. Rockefeller (D-WV), Rep Nancy Pelosi (D-CA) and many others to say that Iraq had WMDS and was a threat? NOTE: Sen. Rockefeller was one of those who said the threat was "imminent." He also said that Iraq would have a nuclear weapon in 5 years -- that would have been 2003!!!!

In addition, Sen. Carl Levin (D-MI), Sen. Tom Daschle (D-SD), Sen. John Kerry (D-MA) and others sent a letter, dated Oct 9, 1998, to President Clinton urging him to "take necessary actions, (including, if appropriate, air and missile strikes on suspect Iraqi sites) to respond effectively to the threat posed by Iraq's refusal to end its weapons of mass destruction programs."

Somebody needs to tell the supposed Constitutional law expert Obama that Nuremberg did NOT allow for American habeas corpus. Ridiculous!

Posted by: Cory | Jun 16, 2008 4:15:45 PM
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Someone needs to tell you that those defendants were not tried for crimes against the United States - but for war crimes. So I will.

The legal basis for the trial was established by the London Charter, issued on August 8, 1945, which restricted the trial to "punishment of the major war criminals of the European Axis countries". Some 200 German war crimes defendants were tried at Nuremberg, and 1,600 others were tried under the traditional channels of military justice. The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war

Somebody needs to tell the supposed Constitutional law expert Obama that Nuremberg did NOT allow for American habeas corpus. Ridiculous!

rhbate - Ignorance is Bliss -

Posted by: spock | Jun 16, 2008 3:13:06 PM
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You must be very happy, and silly.

I happened to have been the attorney who filed an appeal based on the legal theory that the Fifth and Fourteenth Amendments to the US Constitution applies to ALL PERSONS.

[2] It is well settled that the protection afforded by the Fourteenth
Amendment's prohibition against a state's denial of equal protection
of the law to "any PERSON" within its jurisdiction extends to aliens as
well as citizens of the United States. (See Graham v. Richardson,
403 U.S. 365, 371 [29 L.Ed.2d 534, 541, 91 S.Ct. 1848].)

rhbate - Ignorance is Bliss -
You got to read the whole Constitution - "We the People of the United States of America"
The constitution in all its amendments is for the people of the United States, not foreigners caught on foreign land.

And to top it all of these terrorists are not on our land, the Supreme Court has always upheld in the past that persons kept outside the US in a time of war do not get covered!

Even in WWII which I do not agree with FDR intermed 100's of thousands of Japenese and German within US and the court approved.

The Court has over stepped its authority and the President should ignore the order or Congress and the President should overturn the judgemant with law.

Obama, a supposed constitutional expert, is utterly clueless. Nobody had access to American civilian courts during the Nuremburg trials.

Posted by: Michael | Jun 16, 2008 3:04:47 PM
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Guess what? Those prisoners were not on US soil, nor did they commit crimes on US soil.

Just one more reason I cannot and will not vote for Obama. Nor will I stay home. I refuse to even discuss the notion that non-Americans have American rights that only Americans have died to defend. Period

Posted by: dotindixie | Jun 16, 2008 8:24:12 AM
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The Fifth Amendment to the United States Constitution provides, in pertinent part.
No PERSON shall be . . . . . deprived of life, liberty, or property, without due process of law.

The word “citizen” or "American" is not even mentioned in the Fifth Amendment of the US Constitution.

James, the problem many, me included, have with the Iraq had WMD excuse, is that both the British and American intel services originally gave reports that were much more sceptical on Iraqs ability to have viable WMD. Both the governments, Britain under Blair and America under Bush sent those reports back and told the intel services to "stiffen them up". Bush and Blair were not responding to intel reports, they were dictating what those intel reports should say in order to justify a war they had already decided upon. My basic belief is that not even Dubya is mad enough to send troops into conflict with an enemy that he truly believes has (or may have) WMD UNLESS HE KNOWS EXACTLY WHERE THEY ARE AND CAN BE TAKEN OUT BY A PREEMPTIVE STRIKE. History shows we had no idea of possible locations of WMD, what those supposed WMDs were capable of doing. Therefore the logical conclusion is we KNEW there were no viable WMD in Iraq. I have ABSOLUTELY NO PROBLEM with the action in Afghanistan, I have a problem with starting a war under false pretenses, I have a problem with a President lying under oath, I have a problem with a President that lies to the American people and Dubya did all of the above. The war was not that Iraq MAY pose a threat at some stage in the future ( any country could be said to pose a potential threat in the future) Colin Powell was sent in front of the UN to say that Iraq was a CURRENT AND IMMINANT threat. It was no such thing. You believe that Bush acted in good faith, I don't. I believe the evidence is over whelming that he manipulated evidence and stretched the truth to such a degree it was no longer the truth. He may believe what he did was in the best interest of the USA, however he acted ( as I believe he often does) on a gut feeling and his gut feeling could not be backed up by the facts. The term " enemy combatants" was made up because Bush wanted to avoid these people coming under American ( or any for that matter) law. He suspened due process for them, ignored the constitution both in starting the war and how POW/prisoners were processed. IMHO that is not acceptable for one man (or his neo con backing team) to make those decisions on behalf of the American people. And by the way both South Africa and India had some bloody parts to their eventual independence. I don't believe armed response should ever be off the table, but it has to be SHOWN to be the ONLY viable option and in the case of Iraq it was not, it was the avenue of choice to the government and for that Bush and his neocons should be made to answer.

@James Danley

A few counter questions:

1. If they are known "guilty" terrorists, why would they be released?

2. How did you come up with a 9-1 ratio of terrorists versus innocents? You even point to former Secretary of the Army Thomas White in your comment, and according to him at least a third of the inmates didn't belong at Gitmo.

3. Which ratio is acceptable to you? 5-5? 7-3? Or even your ratio reversed: 1-9?

4. Would you still find it acceptable if that one innocent individual was yourself or one of your loved ones?

5. What if every case of mistreatment of innocents made another 10 or 100 young men join al Qaeda to fight what they see as American injustice?

I recommend that you take a look at McClatchy's investigation into the detainee cases, released yesterday.

The moment we don't stand up for our constitution is a bad day!

I think this movie demonstrates the worst part of asking a lawyer to represent a client who no one wants to hear from.