Tuesday, November 17, 2009

Dahlia's article is a perfect example of liberal debating tactics...

I just got back from vacation, and the first day back home I came across article by Ms.Dahlia Honest to God, this article made me laugh. Dahlia's articles normally show what happens when a liberal lives among liberals and never dares to get outside of her little gated paradise to find out the conservative point of view. Of course, my analysis presumes that Dahlia is simply ignorant, and is not deliberately trying to obfuscate the issue and is creating a straw man. It's your pick really, what is true.

Lets go step by step and see what arguments the right-wingers give against the civil courts for a few hand-picked terrorists per Dahlia, and compare that with reality.
Ms Dahlia starts the article with asserting that anything less than civil trial for the terrorists is a sacrifice of American legal principles:
“What both camps [people who object to having civilian trial for moslem terrorists] share, besides a kind of unhinged logic and complete disregard for the legal process, is an obsessive fascination with the accused. The result is a broad willingness to sacrifice our commitment to legal principles in favor of the symbolic satisfaction of crushing the hopes and dreams of a motley group of criminals.”

If Ms.Dahlia were familiar with the views of the right-wingers, she would have known that her assertion is the exact opposite of what they say. As American scholar and famous economist Thomas Sowell writes: “Terrorists are not even entitled to the protection of the Geneva Convention, much less the Constitution of the United States. Terrorists have never observed, nor even claimed to have observed, the Geneva Convention, nor are they among those covered by it.”

Now, whether the terrorists are entitled to the civilian trials or not is a very serious legal question. It’s also important to resolve whether military tribunals for moslem terrorists is a violation of American principles (Dahlia’s assertion) or on the contrary is quite normal and expected. Moreover, if Dahlia’s assertion is correct, then she cannot in all sincerity support Obama’s decision to bring only a handful of terrorists to civilian justice, while keeping the rest of them either in indefinite detention or subject them to the military tribunals.

Powerline correctly asks pertinent questions, which are obviously news for Ms.Dahlia: “At the same time time that the Obama administration announced its decision regarding KSM et al, it also announced that it will try other Guantanamo detainees before the military commissions established by Congress conforming to the Supreme Court's specifications. If anything, however, the acts of KSM et al. against the United States are far more heinous and destructive than those of the others to be tried by military commission. No serious rationale supports this disparate treatment.”

Now, Ms.Dahlia is not the smartest person on Earth, but it’s amazing that it did not enter her mind to wonder how she can reconcile her claims that only civilian courts are the appropriate avenue allowed for trying the terrorists, while completely ignoring the decision of the Obama administration to use the military tribunals for the rest of the detainees.

Ms.Dahlia spends inordinate amount of time nitpicking on whether we should or should not follow the wishes of the terrorists on bringing them to NY city for trial – which is, surely, is a minor issue. She also poo-poohs Sarah Palin’s views on the subject, claiming that: “In addition to her argument that witnessing the American justice system at work will lead U.S. allies to "become less likely to support our efforts in the future," Palin ends her post with an exhortation to "Hang 'em high." Here's betting there's nothing KSM wants more.”

She also deny the accusation that terrorists will turn the trial into circus “Both Palin and Rep. Pete Hoekstra, R-Mich., are also obsessed with the prospect of allowing these terrorists to have an opportunity to mount a so-called "circus trial." They must be awfully afraid of the other side's message to believe that allowing the defendants to utter even a word in their own defense is to risk recruiting millions of new adherents worldwide.”

Indeed, it is worthwhile to look at the right-wing claims on the subject – and one would be of very feeble mind not to agree that their arguments hold water. Sarah Palin correctly asserts that “It is crucially important that Americans be made aware that the mastermind of the 9/11 attacks may walk away from this trial without receiving just punishment because of a “hung jury” or from any variety of court room technicalities.”. Indeed, what guarantee is there that there will be no hung jury?

If Dahlia were to spend a bit more time studying history, she could easily find examples of civilian trials going awfully wrong - Bill Ayers for example or Simson's trials come immediately to mind. But lets look at the example of Milosevic, a former dictator of Yugoslavia. He was tried by the International Court for nearly a decade – and in the end he died in jail, when there was still no end in sight for the trial. Indeed, the trial did become a circus – and I would like to understand Dahlia’s confidence that the Obama trials would not end up this way. How can she predict the decisions of 12 juries?

Moreover, it’s clear that the trial may be much harder than she imagine, given that “when terrorists like KSM were captured, we did not gather information on the assumption that it would be presented in federal court. Thus, the prosecution is at a disadvantage in proceeding down this road now.” If KSM was not read his rights – would this mean that everything he said becomes un-admissible in court? This is something that could be easily spotted by a person of average intelligence, but Ms.Dahlia is clearly not an average person – she is most likely quite below that level.

Ms.Dahlia mindlessly repeats that “It would be nice if we could call off the trial of anyone with plans to use the proceedings to promote hateful ideas. We could have refused to try all sorts of bigmouths who have used their trials to spread noxious garbage, but we don't. The purpose of a criminal trial isn't to suppress a political message. It's to put forth a better political message: Namely, that we believe in our legal system.”

Of course, the purpose of the trial is not to suppress hateful ideas, but neither it is to send a political message. The purpose of a trial is to find the truth and punish the guilty parties - in other words, the goal is justice, not propaganda one way or another. It’s a tad strange that Ms.Dahlia does not understand this.

But wait, there is more to this. As Eric [Black Panter] Holder said: “In addition to that, this is a matter that, as I said, happened in this country as opposed to overseas, which is different from what we might do with regard to those who are going to be tried in the military commissions. But that is a fundamental tenet of American jurisprudence, that crimes are tried in the places where they occur.”.

Powerline immediately notices that Obama’s chief prosecutor in effect created an incentive for the terrorists to strike on American soil: “Put yourself in the place of a would-be terrorist: If you want to garner maximum publicity; if you want to make yourself into a world-famous martyr; if you want an endless platform for disseminating jihadist propaganda; if you want to be treated with kid gloves at all times; what should you do? That's right: you should organize an attack on American soil that kills thousands. You'll be rewarded with top-flight legal representation at taxpayer expense and a forum in which to advance the cause of jihad. Like so many things the Obama administration does, this creates exactly the wrong incentives and needlessly puts American lives in danger.”.

Now, it would be interesting to see what would be Ms.Dahlia’s argument against these observations – but it’s unlikely to be written since, as I said before, she is not terribly smart, and she is not very knowledgeable – in other words she did not read this argument, nor can she figure it out on her own.

Ms.Dahlia also sneers at the argument of former prosecutor Andrew McCarthy, “who tried Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing”, Ms. Dahlia says that “According to this critique, the problem isn't only that the accused may turn the trials to their own advantage. It's that the U.S. judicial and executive branches are overrun with people who really like terrorists and want them to prevail. “

In reality, McCarthy’s arguments are a tad more complex and are fact based, so it’s clear that either Ms.Dahlia did not read his article or did not understand it. To wit: “In the current Justice Department, several top officials, including the attorney general himself, are recused from various national-security cases under conflict-of-interest guidelines. The reason? They, or their former firms, represented enemy combatants in lawsuits against the American people. Indeed, such is the mindset of the Obama DOJ that, to help formulate detention policy, Holder recruited Jennifer Daskal - a Human Rights Watch official with no prosecutorial experience - who had been a tireless advocate for terrorists held by the United States.”

Are there more examples of the ways for liberal judges to make the terrorist prosecution more difficult? Sure enough, McCarthy provides just that: “The intelligence and evidence supporting the military's designation of Mutairi as an enemy combatant were not merely solid, they were overwhelming. The Kuwaiti intelligence service identified him as a "hardcore extremist" affiliated with al-Qaeda before he left for Afghanistan shortly after the September 11 attacks; to get to Afghanistan, he used a known al-Qaeda smuggling route; he contributed money to an al-Qaeda front designated as a terrorist entity by both the United States and the U.N.; after the U.S. invasion, he fled towards Tora Bora at the same time and using the same route as al-Qaeda and Taliban fighters; when al-Qaeda safehouses were raided after his apprehension, his name was found on a roster of "captured Mujahideen" (a mujahid is one who fights in a jihad); and his passport was deposited in a safe-deposit box consistent with the al-Qaeda practice of having operatives turn in their passports (which gives the network more control over them, makes identification difficult if they are captured, and provides al-Qaeda opportunities to forge fraudulent identification documents). In the face of these damning facts, the military's determination that Mutairi is an enemy combatant was invalidated. A federal district judge in Washington, Colleen Kollar-Kotelly, absurdly held that the evidence was insufficient.”

“Naturally, the Obama Justice Department went along for the ride. No appeal was pursued, nor would one have expected otherwise. The way Kollar-Kotelly warped the case is precisely the kind of "justice" top Obama lawyers were pushing for over the last eight years. Now they're in charge, and they readily cited Kollar-Kotelly's ruling as justification for transferring Mutairi back to Kuwait, where he'll be free to rejoin the jihad and take up arms against the United States - like so many other former detainees who've been released in the mad dash to empty Gitmo.”

If one were to read McCarthy’s articles and Ms.Dahlia’s petty attempts to minimize his arguments – who would win?

But Ms.Dahlia’s does not stop there. She also manages to attack the views of John Yoo, by claiming that his concerns about the intelligence information getting into the hands of terrorists in the case of a civilian trial are limited to the number of of times KSM was waterboarded. Compare Ms.Dahlia’s writing with John’s Yoo’s:

Ms.Dahlia: “Yoo warns, apparently without irony: "KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it." Wait, wait. John Yoo—isn't he the same guy who is being sued for creating the legal structure that justified the entire U.S. torture program? And now he's saying he opposes open trials because he doesn't want the world to learn secret information, like how evidence was gathered from a man who was water-boarded 183 times? Curious.”

Curious or not, but Yoo's views are based on facts, which Ms.Dahlia refused to deal with.

John Yoo: “Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it. Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.
This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit. Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be. Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.”

Again, would a reasonable person conclude that Ms.Dahlia treats John Yoo’s arguments in a reasonable fashion? Surely not…

In the end, Ms.Dahlia was exhausted with the legal arguments (I am being generous here) and ends with a refusal to admit that America is at war, after which she proudly proclaimed that “Of course, these aren't so much legal arguments as political theater. And it's hardly surprising that, after eight years of insisting that the law doesn't apply to extremely bad people, opponents of Holder's decision are now focusing their arguments on the bad people, not the law. Still, it's awfully depressing to keep hearing that the only thing wrong with the criminal justice system is the criminals themselves.”

Well, for one, whether US is at war and moslem terrorists are combatants is a rather important issue. Secondly, Ms.Dahlia must provide legal rational for her claims that military tribunals for moslem terrorists is against the US law. For some reason, it slipped her mind to write down those arguments – assuming she actually understood that it’s not enough to assert this.

Finally, it is worth noting an interesting question asked by powerline: “Ask yourself this question: suppose that Khalid Sheikh Mohammed's trial results in an acquittal or a hung jury. Would the Obama administration really let him go? If so, they are crazy. If not, why are they holding the trial?”. Indeed, Ms.Dahlia – can you think beyond step one?

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