Longtime Fresno lawyer Phil Fullerton says it's the right decision to hold the trials of the five terrorists in federal court in New York: "Political attacks on the Obama administration's decision to hold the trial of five terrorists in federal court in New York rather than have a trial before a military tribunal is an assault on the very foundation of our republic: the right to obtain a fair trial for all, even the most despised, and the belief that this will occur."
Click here to read the entire commentary.
Let's hear what readers of Opinion Talk think about the points Fullerton makes in his commentary and whether it's a good idea to try the terrorists in New York.
Baloney
Good for Phil Fullerton! He is absolutely correct. We must never retreat from the fundamentals of American democracy, which makes our liberties possible through law. Our basic law is not some option to be brushed aside in times of passion or fear. Indeed, it is the essence of what the patriots and those of us who bore arms for this nation established on this ground - a free and duly constituted nation which adheres to its highest principles for all time.
Apparently you do not share the same faith I have in our military justice system to conduct fair and impartial tribunals. Why you believe Eric Holder, who is on record with some very predudicial comments about our newly entitled defendents and their chances for conviction, can do a better job than them is beyond me. Are you suggesting that military courts are less fair and impartial? Are not patriots who bear arms for this nation select members of such tribunals? As a veteran who shouldered a weapon every single post I stood, with all due respect sir I fail to understand your self contradictory limitation.
To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order … to be tried for violations of the laws of war and other applicable laws by military tribunals.
[Military Order: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism §1 (e). Issued by President George W. Bush (November 13, 2001)]
Mr. Fullerton's commentary is simply wrong on so many levels.
First, his commentary stongly implies, if not outright argues, that the 9/11 five have a constitutional right to a civilian jury. After all, he claims in his first paragraph that the "political attacks" on Holder's decision to try the five in federal court "is an assault on the very foudation of our republic: the right to obtain a fair trial for all ...."
No serious commentator can claim the 9/11 five (all alien, ememy combatants)have a constitutional or other right to a civilian jury trial. Holder concedes as much. He testified he had to make the difficult (in his words) decision to try them in a civilian court or before a military tribunal. Holder will try USS Cole suspects in a military tribunal. There is not a single case which has ever held that an enemy combatant seized during wartime is entitled to be tried in a civilian court.
Indeed, in Ex parte Quinn, the Supreme Court held that FDR had every right to try eight German saboteurs caught on our shores before a military tribunal rather than a civilian court. The men were promptly tried before such a tribunal, convicted and six of them executed.
The 9/11 five were being tried before a military commission (pursuant to the bipartisan Military Commissions Act of 2006), last year had expressed a willingness to confess and plead guilty, and by now should be rotting away in the ground. The Obama administration's decision to try them in federal court not only flies in the face of what Congress had authorized as the proper tribunal for such enemy combatants, it makes no sense.
Some thorny questions for Mr. Fullerton and those who agree with him: If these men, who were apprehended several years ago, enjoy full constitutional rights (as Mr. Fullerton certainly argues), has the delay in prosecuting them violated their right to a speedy trial? Have they had Miranda rights throughout the entire time they have been detained? If they did, and were not Mirandized (including before every interrogation), are their statements now inadmissible in court, as well as any evidence discovered as a result of the statements? Do they have a right to confront all witnesses against them, including Al-Qaeda turncoats and intelligence officials we have overseas? Are they entitled to view classified information upon which the government has relied at any point? Can they move for a change of venue since 9/11 happened in New York City? In terms of the right to a jury of their peers, should venue be moved to a federal court in an area of the Country (such as parts of Michigan) with a heavy Muslim population? Did Holder's statement to the press that "failure was not an option" in trying them pollute the jury pool? If acquitted, do we release them even though they freely and proudly admit to playing a role in 9/11, and KSM admits to also playing a role in the Bali bombings, the 1993 WTC bombings and Richard Reid's attempted shoe bombing? If not (again, failure is not an option according to Holder), then isn't this just a show trial?
Mr. Fullerton's comments about their so-called First Amendment rights is bizarre. They do not have any such rights. Moreover, as Mr. Fullerton well knows, during trial, while testifying or asking questions (if they choose to represent themselves), the district court judge has the right to regulate what is said in his or her courtroom. In other words, under the power of contempt, the judge can order a defendant disrupting the proceeding or giving speeches on the stand (rather than only answering legally relevant questions) to shut up. I suspect, however, the goal from the defense side (since they have clients who admit to the wrongdoing), especially if radical, leftist lawyers represent the defendants, is to place the Bush administration's tactics in the war on terror on trial. This is why I believe the Obama administration chose a civilian court. They want government funded defense lawyers to use the court system to dig up dirt on the prior administration to discredit (in their minds) Republicans and to potentially provide information which leftists groups overseas can use to try to prosecute former Bush administration officials in world courts.
Charles...read VDH column in Sunday's opinion section...it hits the nail on the head as we look more and more "limp wristed" to the world we will neither gain their respect or discourage further acts of terrorism.This charade is being used for political theatre and although I respect your service I find your position both disingenuous and naive as I do most of Phil Fullertons.Military tribunals have been a way to deal with these pieces of excrement since the Revolutionary War and there is no need to change now other than to serve the agenda of the Obama administration which is full of the "Hate America" crowd which by your post and Fullerton's misguided effort shows they have plenty of associates.
Sorry I fogot to provide a source for that big secret I revealed earlier. This is a balanced story about one persons unbalanced idea. Movin' and Shakin' with the pot o' gold.
http://www.sdcitybeat.com/cms/story/detail/what_moves_you/7977/
Once these systems are in place, most vehicles visible from curb will have a gov't exempt license plate.
Please excuse my interruption above, failure to find a better home for the last entry may have slowed the momentum of discussion about an important topic.
You know I have been thinking alot about this and since noone else is willing to unwrap the flag from around themselves, I'll just say this. This is nothing more than Holder and Obama's idea of a trial lawyer stimulus package. They know this War which began before 9/11 is a goldmine for the leftist legal mafia who have recently lost jobs as I earlier illustrated in remarks about the ACLU. They and other Law Partnerships squandered a huge chunk of green for investment for environmentalists "legal defense funds" with Bernard Madoff, just to name two affected sets waiting patiently as the deception piles up.
I have given many of these comments much thought. Indeed, being a thoughtful person, my reply is probably so late in this digital world as to be irrelevant! Let me add that I am so pleased with the thoughtfulness of many of the comments. Most deal with the issues, and that is how it should be.
I am sill struggling with the question of whether there is such a thing as "partial justice." This is a Platonic question. Is there absolute justice towards which we should strive? I'll leave that unanswered which is where I am. Is it okay to give someone 30% justice?
As to military tribunals, the trier of fact is part of a disciplined and obedient system. That is its genius and why it is so successful. However, asking officers to be fully independent in that framework is asking a lot. The desire for military trial by some implies belief they are bound to convict.
The next question is about "enemy combatant." Like the question of absolute justice, this also bothers me. Must we have a declaration of war?Has Congress done enough with specific acts and funding? Does war require a nation/state? If it is a war, how about the conventions we have signed, like the Geneva Convention? In war, you apparently can bomb civilian targets (look at London, Dresden) although this is disputed, etc. In war you can kill enemy soldiers until they surrender, and also as I recall shoot those not in uniform. The problems go on and on. So it is not possible to get a quick result by claiming "war" and enemy combatant. This is a new situation and the rules are opaque at best.
Therefore, I defer on the question of whether they have a right to a civilian trial with the above two issues. However, if we have a civilian trial, I think we should support it in the belief that it represents the highest form of justice ever known to mankind. Something of which we should be immensely proud. Folks who deny the value of a civilian trial are denying a millenium of Anglo-American history.
Seamus points out specific problems that will no doubt be subjects of motions in the court: Miranda rights, etc. This is a tribute to our system. Yet, if these issues are fundamental justice issues, one must assume that the military courts would have the same issues. So, by raising these issues aren't we in effect saying that we know military courts will gloss over these things. Partial Justice? Maybe 10%? Or are we arguing that our criminal trial rules aren't really justice at all? Miranda? Speedy trial?
I totally agree that the trial court would control this. Federal Judges are quietly among the most powerful people in America. Supported by the marshal's service and finally by the military (read Little Rock integration) they will control their courtroom. However, the defendant's have a right to an open trial, one of our long fought rights. There would be opening and closing statements, perhaps testimony by Defendants, and perhaps witnesses on these issues. I think the public should hear these arguments. The fanaticism of the defendants will probably deeply offend all, and let us know how serious our enemy is, something we should all know and not fear. Let's air all of these issues. My point is that the First Amendment is designed to allow, as here, for the free exchange of ideas. This is a superb thing, and we shouldn't fear the same process here. We should relish the battle of American ideas against an Islamic minority whose ideas were frozen by the Turkish occupation for five centuries. I am not saying that "enemy combatants" (again raising the caveat of what that is) have First Amendment Rights, but only that the First Amendment is magnificent and should be our lodestone guiding all issues of public discourse. Let the battle of ideas begin with terrorists!
Among a couple of things which I believe strongly enough about is that the qualitative force of conduct does help answer some of the small legal questions like: Our choices in approaching justice after thousands of innocents fall from the sky in plain view.
There are good reasons to hear the perceptions of an American who lived an otherwise useful life in this nation, and may have cause to tell a story for all to hear as to why they did or do not commit a misdemeanor or felony, in an open court.
Aliens who plan the hijacking and trajectory of missiles filled with human cargo aboard, who learned the technical skills of flying but not landing, who made their targets the gravitational center of our national defense, our economic capital, and the residence of our chief executive, will not not in my mind ever rise to that level of a hearing.
To allow them would be to miss the profound meaning of certain truths our founding fathers held to be self evident.
I do not believe a military tribunal in and of itself guarantees conviction. I believe military officers, who know a thing or two about duty and honor, can be as objective as a judge and jurors from the same city where 3,000 people lost their lives. Of course, I wish we were spared either a civilian or military trial. The fact that the 9/11 five proudly admit they planned or played a role in 9/11 is a sufficient basis for summary execution without trial in my view; indeed, after being waterboarded for valuable information, they should have been promptly hanged or shot. I would not have even given them a military trial. But that is how I would have handled it were I commander-in-chief.
Be that as it may, in my opinion, there is no question that we are at war with Al Qaeda. War was declared by Al Qaeda on the U.S. and continues to this day. The use of force against Al Qaeda was authorized not only by Congressional resolutions but also by the actions and decisions of two consecutive commanders-in-chief. After all, if there was no war against Al Qaeda, and members of Al Qaeda were simply a criminal organization like the Mafia, by what right can predator drones kill Al Qaeda members? That has happened during Obama's presidency. Surely, that would violate their so-called constitutional rights? Unless we were at war, by what right could Obama have declared during the campaign that he would bomb Osama Bin Laden if he were in Pakistan? The fact is, we are at war, and even Obama and Holder acknowledge that these five could be tried in a military tribunal.
By the way, as for a civilian trial versus military tribunal, while both are carried out objectively and fairly, the rules of both are quite different. One is public, the other private. One affords the terrorist a platform to air their views (which their attorney made clear the other day is their intent), the other does not. One allows a terrorist defendant to see all of the evidence against him (including classied materials), the other does not (only his attorney, who has to have a security clearance). One affords a full panoply of consitutional and procedural rights to the terrorists, the other affords more limited rights consistent with the nature and history of military tribunals (but very likely quite generous in comparison to traditional military tribunals since they were devised by a bi-partisan Congress in 2006.)
The decision to try in one forum versus the other simply reflects whether an administration believes we at war with Al Qaeda or whether this is a "law and order" issue relating to "overseas contingency operations." I believe it should be considered the former.
I have further First Amendment thoughts. (This is the problem with Blogs and their immediacy.) While the non-citizen prisoners probably have no First Amendment Rights, clearly there are huge such First Amendment issues in the trial. The public almost certainly has the right to know what is happening. If the court sought to close the trial to the public and media, this issue would be framed. I have done a lot of litigation over the issue of whether this issue belongs to the public or press, but the hypothetical question would not put that in question.
An interesting case would be if a prisoner smuggled out a letter to the press. Could the court bar it by ordering the press not to publish it? Probably not. Then the issue is: is that the public's, the press' or the prisoner's First Amendment Right? In this sense the prisoner could at least have a derivative right as a member of the public, although query, if a prisoner not a citizen could he derive such a right?
As one can see, this is a complex issue. Yet, I stand by my point that the First Amendment is a work of genius letting ideas to be tested. And a public trial of the "9/11 Five" would permit it full scope and value.
I very much suspect the civilian court will allow press access. The public and press have strong First Amendment claims to access. While there may be certain restrictions upon the press (will cameras be allowed?), I doubt the government will move to ban the press. The terrorists clearly want cameras galore at the trial. This result would not be the same if a military tribunal were used.
Which brings me back to a fundamental point: Why in the world did Holder et al. choose a civilian court? The five defendants have repeatedly admitted their guilt. They would gladly do so on the stand. They advised the court in the military tribunal last year that they want to plead guilty and proceed to the penalty phase - death. Their counsel has publicly acknowledged their guilt in the last few days in seeking his 15 minutes of fame. They have no legally congnizable defenses (other than potential legal objections - which this Administration ensured by submitting this to a federal judge - to allegedly unlawfully obtained evidence). Holder has testified he has plenty of evidence to convict these defendants; again, according to Holder, failure is not an option. Moreover, Holder has all but admitted the government will never release these defendants.
So why the show trial? Under the above circumstances, what prosecutor would refuse a guilty plea and a sentence of death, especially if it preserves the secrecy of confidential witnesses (intelligence operatives, Al Qaeda turncoats and potential co-conspirators) and classified materials and avoids adverse legal rulings and a possible acquittal? This is the answer: Because Holder, Obama and their liberal cronies want to put the Bush Administration on trial. They see Bush and Cheney as more dangerous than the 9/11 five. They want to impress European and other leftist elite with their law enforcement approach to the war and to try to damage the reputation of the prior administration in particular and Republicans in general.
And the defendants? They love it. Lights, camera, action. While Mr. Fullerton believes most Americans will consider them monsters (as they should), the defendants will be playing to a worldwide Muslim audience. Whether true or not, you can assume that they will testify that the Koran was defiled by Gitmo guards, their prophet Mohammed was cursed at and mocked by the Gitmo guards, they were tortured, made to eat pork, humiliated, spat upon and treated terribly. Waterboarding evidence involving KSM will surface. He will describe the waterboarding in vivid detail. This will further stoke the passions of tens of millions (if not hundreds of millions) of Muslims worldwide, create propoganda to be used to recruit new jihadists bent on killing Americans, endanger our troops in the Middle East, and cause leftist lawyers abroad to seek to prosecute American politicians and soldiers in world courts.
In short, Holder and Obama foolishly opened a can of worms for no good reason. And while the civilian court trial may give rise to a host of interesting legal issues (and others) which you and I have posed and will be litigated ceaselessly, we are not talking about coffee shop kvetching here. These are life and death issues. Americans will be placed in jeopardy by this Administration's very political decision.
Mr Fullerton: I believe the First Amendment is no less important a safeguard against the absolute power of the state as any other. After reading all views, I have concluded that our differences in opinion with you, President Obama, and Eric Holder has as much has to do with the application vs. exploitation of written American principles as any other issue. I am sure you will find many causes for the "9/11 Five" to validate as this process of American justice opens its arms to those who are actively seeking to end it. They have a friend, I'm not sure they are yours. That you will place another flea on the system for us to watch is an unadaptive act. Good luck with your experiment, it's on us.