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“Holding The Boston Bomber As An Enemy Combatant?”: Would Tsarnaev Be Convicted Under President McCain?

That was justice at work. It took a week less than two years, an impressively brisk time window, for federal prosecutors in Massachusetts to deliver justice to Dzhokhar Tsarnaev, and the jury needed just 11 hours to deliberate. We didn’t waterboard him or send him to Gitmo, his jailers didn’t make him strip naked and get down on all fours while they led him around on a leash; and still, miraculously, despite these failures of our resolve, the people of the United States got a conviction.

I say “failures” above, obviously, in an ironical kind of way. But I wrote it like that because it strikes me that this is a day more than most other days to take stock of such matters and to remember that in this case, if John McCain and Lindsey Graham had had their way, some of those things could conceivably have happened to Tsarnaev. You might be tempted to say, so what, he’s a mass murderer. And that he is. But he’s a citizen of the United States, and citizens of the United States, no matter how despicable, have rights.

But in April 2013, right after the bombing, when the demagogue needle was way over in the red, McCain and Graham were leading the call for Tsarnaev to be detained as an enemy combatant. Not to be tried as one—even they understood that that would be crossing the line when it came to a U.S. citizen. But they wanted him held and questioned as an enemy combatant—thrown in a military brig and then questioned by military and CIA personnel rather than the FBI, a process that would have stripped him of his right to legal counsel and other basic rights to which any citizen is entitled.

McCain and Graham were joined by their usual compatriots in these crusades, New Hampshire Senator Kelly Ayotte and New York Congressman Peter King. Their argument was that holding Tsarnaev as a combatant for a certain period of time would allow the government to ascertain things like whether he had any al Qaeda connections. Graham said at the time that being able to question Tsarnaev without a defense lawyer present was his whole point. That might sound reasonable, if it weren’t for, you know, the Constitution.

I don’t doubt that there was some measure of sincerity in McCain’s and Graham’s belief at the time, but even if it was quasi-sincere, it was just the worst kind of demagoguery. This did not happen in a vacuum, of course, but was yet another instance in a long chain of McCain-Graham demagoguery that went back to the very beginning of the Obama administration, when the new president was trying to close Gitmo, and Republicans—Graham was particularly noxious, as I recall—were running around charging that Obama was trying to release Gitmo prisoners onto the American mainland so they could live among us.

The reality, of course, is that the Gitmo detainees would by and large have been transferred only to the most secure Supermax prisons in the continental 48. But the reality didn’t matter, see, because what was important was to establish the narrative that this new president, with his suspicious name and questionable provenance and terrorist-palling-around and so on, didn’t want to defend America the way you and I did.

Then came the uproar over the administration’s plan to try Khalid Sheikh Mohammed in a civilian New York court. Now to be sure, the administration botched that one in p.r. terms, by not reaching out in advance to then-Mayor Mike Bloomberg and to Senator Chuck Schumer to make sure they’d both be on board. It wasn’t the first time or the last that the administration has aimed the revolver at its own foot.

But where are we now on that front? KSM still sits down in Guantanamo Bay, awaiting trial. He’s been ping-ponged from the military court system to the civilian and back again. He purports in more recent years to have had a change of heart, bless him, regarding the whole wholesale slaughter of innocents business. Whatever the case on that front, the core fact remains that the families who lost loves ones on 9/11 have not seen any resolution with regard to the legal fate of the mastermind of those attacks.

The families of the victims of the Boston Marathon bombing, on the other hand, got justice in two short years. And this civilian-court efficiency is no aberration. Up through 2011, according to Human Rights First, federal civilian criminal courts had convicted around 500 terrorism suspects. Military courts had convicted eight, and three of those were overturned completely and one partially. It’s hard to find more recent precise numbers, but it’s not exactly as if military tribunals have caught up since then. The bottom line is clear. Civilian prosecutions work, and they live up to (well, more or less—Tsarnaev was questioned before being read his Miranda rights) constitutional standards.

And yet the snarling from McCain and Graham and their amen corner never ends. Obama/Democrats soft on terror is too tantalizing a story line, a toothsome steak that they can’t help but bite into. One of Obama’s more admirable attributes, in fact, is the way he has stood up to this bullying. He’s tried (without always succeeding) to bring our terrorism policies more in line with our stated values while at the same time still prosecuting actual terrorists. If you lament Obama’s shortcomings, just stop today and ask yourself where you think we’d be on these fronts if President McCain had been elected in 2008. His fomentations tell us all we need to know.

 

By: Michael Tomasky, The Daily Beast, April 10, 2015

April 11, 2015 Posted by | Boston Marathon Bombings, GITMO, John McCain | , , , , , , | Leave a comment

“Guns, But Not Trials, For Terror Suspects”: The Land Of Liberty According To Lindsey Graham

South Carolina Sen. Lindsey Graham is not pleased that the Obama administration decided to prosecute Boston Marathon bombing suspect Dzhokhar Tsarnaev in civilian court, even though it would probably be illegal and counterproductive to treat the U.S. citizen as an enemy combatant.

The senator, a lawyer and reserve Air Force JAG officer himself, called for stripping Tsarnaev of his constitutional rights to due process even before the 19-year-old was captured Friday evening. “The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise,” Graham said on Twitter on Friday. “Under the Law of War we can hold #Boston suspect as a potential enemy combatant not entitled to Miranda warnings or appointment of counsel.”

But Graham seems to hold the opposite view when it comes to different constitutional rights for those accused or suspected of terrorism. At a press conference he set up this afternoon to slam the White House on the enemy combatant decision, he was asked about legislation that would stop people on the Terrorist Watch List from buying guns. Here’s his response:

GRAHAM: “I think, anyone who’s on the Terrorist Watch List should not lose their Second Amendment right without the ability to challenge that determination. I think, Senator Kennedy was on the Terrorist Watch List. There’ve been people come up on the watch list. I did not want to make that a — the basis to take someone’s Second Amendment rights away. What I would suggest, is that if you come up on the Terrorist Watch List, you have the ability to say, “No, I’m not a terrorist.” And that would be the proper way to do that.

Currently, the federal government can only prevent a firearm sale for 11 reasons — suspected ties to terrorism, or even suspicion that a gun would be used in an attack, are not one of them. Between February 2004 and December 2010, 1,453 people on the terror watch list tried to buy a gun and over 90 percent were not stopped.

Democratic Sen. Frank Lautenberg’s bill to close what he calls the “terror gap” would not automatically strip anyone’s Second Amendment rights, as Graham suggests. It would, in fact, allow “any individual whose firearms or explosives license application has been denied to bring legal action to challenge the denial.” In Graham’s world, Tsarnaev would have no such clear recourse to challenge his status as an enemy combatant.

The Terrorist Watch List is imperfect and there are plenty of legitimate civil libertarian arguments to be made against restricting firearms access to people on the list, since people on it haven’t been convicted of any crimes and they’re not even allowed to know whether they’re on the list. For instance, Ted Kennedy was, indeed, briefly and erroneously placed on the no fly list in 2004, though that’s a different list. But Graham’s opposition to limiting the Second Amendment rights of people suspected of being terrorists is wholly inconsistent with his support for completely stripping away their Fifth and Sixth Amendment rights to a fair trial in court.

Contrast his opposition to closing the “terror gap” with this, from a 2011 New York Times article:

Citizens who are suspected of joining Al Qaeda are opening themselves up “to imprisonment and death,” Mr. Graham said, adding, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”

So the only right that Graham seems interested in preserving for people suspected of being affiliated with al-Qaida is their right to purchase firearms.

The NRA also opposes closing the “terror gap,” fearing that it would be used to strip the Second Amendment rights of “Americans who disagree with the policies of the Obama Administration,” “who believe in federalism,” or “who post their political opinions on the Internet.”

 

By: Alex Seitz-Wald, Salon, April 22, 2013

April 24, 2013 Posted by | Constitution, Terrorism | , , , , , , , | Leave a comment

“Who’s Doing The Terrorizing?”: Lindsey Graham Pulls A Page Straight Out Of The Bush-Cheney Playbook

Apparently on Friday, before Dzhokhar Tsarnaev was apprehended, Sen. Lindsey Graham was already torquing up the hysteria by taking the position that Tsarnaev not receive his Miranda warning before being interrogated. Graham–who, not to imply anything from this, is one of those lucky men who can go into any barbershop and the get the exact look he wants simply by saying, “I’d like the Adolf Hitler haircut”–tweeted “If captured I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes.” He then added “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.'”

The Brothers Tsarnaev will never be known as anything but terrorists, but Boston certainly doesn’t look like a town that has been terrorized to me. Defiant? Sure. Inspired? Definitely. There’s a kind of a civic euphoria arising from the realization that town came through this blow with strength and intelligence and courage. From the first responders on Monday, to the individuals who opened their homes to stranded runners, to the full-throated expression of patriotism that infused the way Bruins fans sang the national anthem, to an exemplary performance by the law enforcement authorities, Boston has a lot to be proud of. They don’t look terrorized to me.

It’s the Lindsey Grahams who are terrorizing people by suggesting that this threat maybe might possibly be so enormous that we have to deny Dzhokhar Tsarnaev his rights as an American citizen. This is a page straight out of the Bush-Cheney playbook, the idea that we have to start throwing away our most important values and traditions in order to be secure.

It’s nonsense. Denying Dzhokhar Tsarnaev his rights won’t improve my safety. Let’s face it: if I really wanted to improve my safety, I would lose twenty pounds.

By: Jamie Malanowski, Washington Monthly Political Animal, April 21, 2013

April 22, 2013 Posted by | Boston Marathon Bombings | , , , , , , | Leave a comment

“Elected Official Edition”: Lindsey Graham Presents The Worst Response To Boston So Far

Sen. Lindsey Graham (R-The Worst) has some helpful suggestions for the Obama administration and, I guess, the thousands of FBI agents and police officers currently searching for Boston Marathon bomb suspect Dzhokhar Tsarnaev, in case any of them follow him on Twitter: Don’t read Tsarnaev his rights, if you catch him alive, because terror:

  The last thing we may want to do is read Boston suspect Miranda Rights telling him to “remain silent.”

— Lindsey Graham (@GrahamBlog) April 19, 2013

If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.

— Lindsey Graham (@GrahamBlog) April 19, 2013

If the #Boston suspect has ties to overseas terror organizations he could be treasure trove ofinformation.

— Lindsey Graham (@GrahamBlog) April 19, 2013

Graham wasn’t done, telling the Washington Post’s Jennifer Rubin (sigh): “This is Exhibit A of why the homeland is the battlefield.”

That is just the worst, dumbest, least helpful, wonderful (and totally predictable) response to a terror attack, Senator Graham. Making America “the battlefield” is sort of the point of terrorism (well, the point is also “killing Americans” and often “somehow causing America’s foreign policy to change in a way that is actually the opposite of the way that terrorism always makes America’s foreign policy change” but most terrorists aren’t great strategic thinkers, that is why they fucking bomb civilians).

So Tzarnaev is an American citizen, and while he may be a terrorist, terrorism is a crime. In America, when we arrest people for crimes we are required to inform the criminals that they have certain rights under the Constitution — the Constitution is this old list of rules that people like Sen. Lindsey Graham claim to revere — and we do this not just to make the criminal justice process fairer but also so that prosecutions don’t fall apart because of police misconduct.

This “don’t read terrorists their rights” line is weird nonsense even if you do think “terrorism” is a magical word that turns crime into super-crime-where-the-Constitution-doesn’t-count. Tsarnaev may be doing poorly in college, but he’s presumably watched enough television that if police tell him his rights he will not be surprised to hear them.

Anyway, Graham doesn’t even have to worry because the Supreme Court and the Justice Department have already basically rolled back Miranda to the point where once you say “terror” you basically only have to read someone their rights if you feel like it.)

Graham also told Rubin that it would be “nice to have a drone up there” because yeah what is impeding this investigation so far is that no one has access to any airborne cameras. IF ONLY WE HAD AIRBORNE CAMERAS.

This will remain the dumbest response to this week’s chaos until John McCain urges war with Russia and/or Liz Cheney urges war on Chechnya.

By: Alex Pareene, Salon, April 19, 2013

April 22, 2013 Posted by | Boston Marathon Bombings, Constitution | , , , , , , , | Leave a comment

“American Born Terrorists Are Not Excused”: The Alternatives To Drone Strikes Are Worse

America’s drone policy makes everyone uncomfortable. The alternatives are worse. Attacking enemy combatants from the air is part of warfare. Combatants who wear civilian clothing or who operate from sanctuaries are not excused from risk. Compare drone strikes to the feckless 1998 cruise missile attack on bin Laden. Drone strikes work; that is why our opponents object to them. If the host governments are cognizant and accepting (even if this is not public), if the laws of armed conflict limiting egregious attacks on civilians are observed, drone strikes are an acceptable use of force.

The more difficult issue involves targeting belligerents who also hold American citizenship. If you think about it, every confederate killed by U.S. forces in the Civil War was an American citizen. Germans with dual citizenship, both civilians and soldiers, were killed in combat or in aerial bombings during World War II. There were probably a few citizens among Chinese forces in Korea. Killing Americans participating in hostilities in an armed conflict against the United States, while disturbing, is not automatically precluded.

Arrest and trial is the preferred approach for dealing with Americans who threaten to kill their fellow citizens. What do we do if arrest is not an option? We could wait for a moment when they can be caught, but that runs the risk that while we wait, there will be another 9/11 or a successful airline bomber. The struggles against global jihad do not fit neatly with existing rules for conflict, and a pragmatic approach that puts public safety first faces difficult choices in balancing risk and rights.

The most difficult choice involves setting bounds for the use of lethal force against Americans. The administration has three rules: A senior U.S. official must determine there is an “imminent” threat of violent attack; capture is not possible; and attacks must be consistent with the laws of war (meaning an effort to avoid collateral damage and innocent causalities). The rules could be clearer in saying targets must be combatants engaged in armed struggle, and the administration uses an elastic definition of “imminent,” but these rules are sufficient for what should be a rare and infrequent event—if drone attacks on U.S. citizens are not rare and infrequent, something is dangerously wrong. It would be better if we did not have to do this and there will be a time when these rules can be abolished, but that time is not now.

By: James Lewis, U. S. News and World Report, February 6, 2013

February 7, 2013 Posted by | Citizenship, National Security | , , , , , , , | Leave a comment

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