Monday, November 23, 2009

“Nix eine Hitler”: “Obama’s” Plan to Try KSM in a Civilian Court is Treasonous, but He Had Help

By Nicholas Stix
Last updated Tuesday, November 24, 2009, 10:05 a.m.

Did Eric Holder Get His Law Degree from the University of Phoenix?

The more I see of Attorney General Eric Holder, the more convinced I become that the average Tuscaloosa traffic cop knows considerably more about the criminal law, constitutional law, military law, scientific laws and Burke’s Law—not to mention traffic law—than he does. The only area in which I would trust Holder’s expertise, is in answering the crucial question of where one would go, in order to purchase a snazzy suit in the D.C. area. One must stipulate that the man has good taste in suits.

But as the above video and the following transcript from the Senate Judiciary Committee’s Justice Department oversight hearing last Wednesday show, he’s not even a talented b.s. artist. Why, my nine-year-old could have done a better job of talking himself out of the corner Holder painted himself into, with the latter’s manifest ignorance of the law!

In “Would U.S. Need To Read Bin Laden His Miranda Rights?,” even writer Frank James at socialist NPR granted that Holder was “stumped” by questioning from mushy moderate Sen. Lindsey Graham (Chameleon-SC).

In one of the highlights of Wednesday's Justice Department oversight hearing by the Senate Judiciary Committee, Sen. Lindsey Graham, a South Carolina Republican, attempted to put Holder on the spot with the question: would U.S. officials need to Mirandize Osama bin Ladin if it [sic] captured him, including telling the al Qaeda leader that he had the right to remain silent?

Holder essentially said no, not necessarily. It would depend on the tack the U.S. government decided to take after [emphasis mine—NS] capturing the terrorist leader. Graham clearly wasn't persuaded by Holder's answer.

The exchange started with Graham stumping Holder with a question one would have thought the attorney general would have been prepared for:

GRAHAM: “Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?”

Holder’s fumbling answer betrayed his incompetence. In effecting a criminal arrest, you must Mirandize someone immediately; otherwise, you will be guilty of violating his rights, and the judge will set him free. Holder said that the decision on how to try bin Laden would only be made later, which would either make it impossible to Mirandize bin Laden, requiring that he not be tried in a civilian court, or mean that prosecutors would lose the case against him, right out of the gate.

Lindsey Graham Remembers That He’s a Man, and Catches Eric Holder Without His Script

Although he is a former U.S. attorney and D.C. superior court judge, Holder talks like someone who has never tried, let alone presided over a criminal case. (I say “tried,” as in litigating a trial, as opposed to simply abusing the power of the state, in order to coerce a defendant into accepting a plea bargain, thereby saving himself the inconvenience of prosecuting an actual trial.)

David Axelrod sent little Eric to Congress on Wednesday, without packing his lunch and his script, and didn’t realize that Lindsey Graham wasn’t always going to bend over for the “Obama” posse.

* * *

SEN. GRAHAM: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

ATTY. GEN. HOLDER: I don't know. I'd have to look at that. I think that, you know, the determination I've made—

SEN. GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.

ATTY. GEN. HOLDER: Well, I think—

SEN. GRAHAM: The Ghailani case—he was indicted for the Cole bombing before 9/11. And I didn't object to it going into federal court. But I'm telling you right now. We're making history and we're making bad history. And let me tell you why.
If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

ATTY. GEN. HOLDER: He would certainly be brought to justice, absolutely.

SEN. GRAHAM: Where would you try him?

ATTY. GEN. HOLDER: Well, we'd go through our protocol. And we'd make the determination about where he should appropriately be tried.

SEN. GRAHAM: Would you try him—why would you take him someplace different than KSM [Khalid Sheik Mohammed]?

ATTY. GEN. HOLDER: Well, that might be the case. I don't know. I'm not—

SEN. GRAHAM: Well, let—

ATTY. GEN. HOLDER: I'd have to look at all of the evidence, all of the—


ATTY. GEN. HOLDER: He's been indicted. He's been indicted already. (Off mike.)

SEN. GRAHAM: Does it matter if you—if you use the law enforcement theory or the enemy combatant theory, in terms of how the case would be handled?

ATTY. GEN. HOLDER: Well, I mean, bin Laden is an interesting case in that he's already been indicted in federal court.


ATTY. GEN. HOLDER: We have cases against him. (Off mike.)

SEN. GRAHAM: Right, well, where would—where would you put him?

ATTY. GEN. HOLDER: It would depend on how—a variety of factors.

SEN. GRAHAM: Well, let me ask you this. Okay, let me ask you this. Let's say we capture him tomorrow. When does custodial interrogation begin in his case?

If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

ATTY. GEN. HOLDER: Again I'm not—that all depends. I mean, the notion that we—

SEN. GRAHAM: Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, "You must read him his rights and give him a lawyer"? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?

ATTY. GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to—

SEN. GRAHAM: Mr. Attorney General, my only point—the only point I'm making, that if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that the rules in this country, unlike military law—you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.

(A more complete transcript is posted here.)

* * * *

Eric Holder got both his B.A. and J.D. from Columbia University, while Lindsey Graham only attended the University of South Carolina in Columbia for his undergraduate and law degrees. How could Graham have so whipped Holder?

His frequent lack of political spine notwithstanding, where the law is concerned, Graham is the real deal, a colonel in the U.S. Air Force reserves, veteran USAF Staff Judge Advocate, and teacher of Air Force lawyers, while Holder is just another well-dressed, affirmative action fraud.

Holder appeared clueless regarding the role of legal precedent. He emphasized that we have captured thousands of unlawful enemy combatants on the battlefield, while Mirandizing only a few, as if that will matter, once he turns prosecutions of terrorists into domestic criminal affairs, and leaves military personnel in a state of battlefield confusion. Likewise, his overconfidence regarding the purported strength of the federal case against KSM is not only folly in the extant case, but in addition to destroying our intelligence work, may lead to acquittals and dismissals of charges in cases that are less solid, due to procedural protections that have no place in the prosecution of unlawful foreign combatants and which, so abused, may make such prosecutions impossible. He may also bring about the death of some of our hard-won intelligence assets.

In order to protect themselves from “Obama” and Holder’s incompetence and malevolence, field commanders would probably develop the CYA maneuver of immediately Mirandizing all unlawful combatants captured in battle. This would give us the worst of all possible worlds: We would not be able to interrogate the terrorists, and thus would gain no intelligence from them; meanwhile, they would still be able to manipulate the legal system and get intelligence from us; and all at a cost of billions to the American taxpayer. This is a lose-lose-lose proposition for the American people, but win-win-win for America’s enemies, which includes Holder and the John Doe calling himself “Barack Obama.”

Pat Buchanan has enumerated many of the follies of Holder’s position.

Hell, Holder’s nonsensical answer regarding whether we’d have to Mirandize bin Laden, showed that he was clueless regarding the logical consequences of his own just uttered words. He has so far shown himself incapable of giving a logical or even a legal argument for any of his positions.

Holder is giving foreign terrorists (unlawful enemy combatants) luxurious and legally unjustifiable privileges, at the same time that he is robbing white Americans of their Constitutional rights, e.g., through the recently passed, unconstitutional, Hate Crimes Bill that I skewered in June.

During the quickie two-hour Congressional hearing held on the Hate Crimes Bill in late June (see video below), senators Jeff Sessions (R-AL) and Tom Coburn (R-OK) exposed Holder as a legal know-nothing, in terms similar to his performance last Wednesday before the Senate Judiciary Committee. Holder’s argument on behalf of treating crimes against members of certain protected groups as legally more important than the same acts committed against white, heterosexual Christian males, was that the protected groups had historically been targeted. That argument is thoroughly incompatible with the legal protections anchored in the First, Fifth, and 14th Amendments to the U.S. Constitution. Holder evinced himself as completely ignorant of the Constitution and its history, hostile towards the very idea of giving legal arguments, and where groups he hates—white, heterosexual, conservative Christian males—are concerned, sees the protections that the Constitution provides the citizen against the state as obstacles to surmount.

(It’s not just Holder, of course. Last spring saw the scandal over the Department of Homeland Security’s phony report on “Right-Wing Extremism,” which was based on SPLC and ADL propaganda, presenting all constitutionalist white patriots, including returning servicemen, as potential terrorists. DHS is run by Janet Napolitano who, like Eric Holder, works for the genocidal, black supremacist-in-chief.)

The dual development of granting legal luxuries to foreign terrorists, while legally impoverishing white American citizens is no coincidence. Since the terrorists seek to destroy America, “Obama” and Holder see them as allies who must be helped; since patriotic white Americans seek to save their country, the racist, biracial (but passing for black) traitors “Obama” and Holder see them as enemies who must be destroyed, by any means necessary.

“Nix eine Hitler”

I wish I could simply blame all of our problems on Eric Holder and “Barack Obama,” but they had help.

As former U.S. Attorney Andy McCarthy and former federal prosecutor John Soo have recounted, it was Bill Clinton who, following the first terrorist attack on the World Trade Center in 1993, initiated the practice of trying unlawful foreign combatants in criminal court. The terrorists were able to demand that the prosecution provide its evidence against them; it was thus forced to hand over “an intelligence bonanza” to them—which they forwarded to Al Qaeda—thus destroying years of hard-won intelligence. Thus, Soo, building on McCarthy:

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

KSM is the self-proclaimed mastermind of the 9/11 attacks on the World Trade Center and the Pentagon—and a "terrorist entrepreneur"… Together with Osama bin Laden, he selected the 9/11 terrorists, arranged their financing and training, and ran the whole operation from abroad….

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….

This is not hypothetical… 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 … could immediately see who was compromised [and] 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? the "crime scene" … take statements from nearby "witnesses"…. ...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.

The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War…. [and] could guarantee a fair trial while protecting national security secrets from excessive exposure.

The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.

Hence, even if we win every trial held in an American courtroom, the price in the destruction of our intelligence capabilities will be prohibitive.

Some readers will respond, “But Bill Clinton was a traitor, from Jump Street.”

So, let’s look at George W. Bush.

Very early in the wars in Afghanistan and Iraq, the Treason Lobby—the
New York Times, the George Soros-funded Open Society Institute, etc.—demanded that the Bush Justice Department grant the protections of the Geneva Conventions to terror “suspects.”

The scare quotes are because the very usage referring to most of the folks who at any point have been detained at Gitmo as “suspects” requires a misrepresentation of the Laws of War and the Geneva Conventions.

When you catch a combatant in a war zone fighting without uniform or any clear signification that he is a combatant, or who is not openly brandishing his weapon, he is therefore an unlawful combatant (spy, saboteur, terrorist) who can, and in most cases should be shot right there. The military authorities may choose to grant him a military trial at their pleasure, but are under no obligation to do so. (Bush’s provision for “military commissions” may or may not have made this obligatory, in which case, so much the worse for Bush.) Unlawful combatants do not enjoy the presumption of innocence, or the right to habeas corpus, Miranda warnings, counsel, or any of the other procedural protections that Americans and resident legal aliens have come to take for granted.

The very idea of “procedural rights” comes from civilian courts dealing with a nation’s own citizens (giving such rights to resident legal aliens came later). The problem here is that the Treason Lobby has worked for generations, sowing confusion about the law, and often in practice getting the law turned upside down, in order to confer on foreign terrorists luxurious legal privileges, while robbing patriotic (white) American citizens of their fundamental legal rights.

As I wrote six years ago, in “Do Terrorists Have Rights?,” which was based on the unambiguous wording of the Geneva Conventions, and on the work of legal scholar Jeremy Rabkin (here and here), the Conventions are not universally binding, but rather a treaty providing conditional rights limited to the signatories (“Contracting Parties”). They clearly distinguish between those who do and those who do not enjoy their protections.

On no less than five points, does the 1949 Geneva Convention explicitly support the Bush Administration’s [initial] position that the Guantanamo detainees are unlawful combatants, and thus not protected as prisoners of war, because:

1. They are not fighting for a Contracting Party to the Convention;
2. They are not “commanded by a person responsible for his subordinates”;
3. They wear no uniforms or the equivalent (“a fixed distinctive sign recognizable at a distance”), identifying them as combatants;
4. They fail the test of “carrying arms openly”; and
5. They fail the test “of conducting their operations in accordance with the laws and customs of war.”

The Geneva Conventions implicitly recognize principles of reciprocity, the right of national self-defense, and enlightened, national self-interest; the
New York Times does not – at least, not in the case of the U.S. And yet, since the Geneva Conventions have for many liberals a sacrosanct status, instead of saying that he held them in contempt, the Times editorialist chose to lie about what the Conventions say.

Times was echoing a strategy which was established, after 911, by influential humanitarian organizations, including the Red Cross/Red Crescent and the Open Society Institute (OSI).

The Treason Lobby asserted that, according to the Conventions, their protections applied to unlawful combatants, which was a boldfaced lie.

All George W. Bush had to do was say, “You lie!,” tell the American people the truth, and uphold the Conventions. Instead, he caved in, and gave America’s enemies what they demanded.

In extending the Conventions’ protections to those whom they expressly excluded from protection, Bush vitiated the Conventions, and proved himself an imbecile, a coward, or a nihilist.

* * *

From 1980-1985, I attended college in West Germany on what I like to call a “Daimler Scholarship.” I supported myself working most holiday seasons building the world’s finest mass produced automobile on the assembly line at Daimler-Benz—that’s “Mercedes-Benz,” to you civilians.

Although I rapidly attained fluency in German, most of my colleagues were foreign guest workers (“Gastarbeiter”), who spoke only the eponynmous pidgin German. During my first hitch in early 1981, a huge, generally quiet Yugoslavian named Josef once said to me, “Nix eine Hitler.”

Translated from the Gastarbeiterdeutsch, Josef was saying, “Hitler didn’t do it alone.” He had lots of help.

(Tripartisan tips ‘o the hat to traditionalist conservative Larry Auster, the Republican Web sites Newsbusters (Noel Sheppard) and Hot Air, and socialist NPR.)

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