December 18, 2006
WAR/LAW: One of These Things Is Not Like The Other
Salon's Alex Koppelman has a silly article contrasting the Jose Padilla case with that of Demetrius Crocker, a right-wing Timothy McVeigh-style nutjob who was criminally prosecuted for plotting to bomb a courthouse in Tennessee and to use lethal gas against the local black population. (Via Bashman). What is silly about the article is Koppelman's thesis that the successful prosecution of Crocker through the traditional criminal justice system shows that no alternative procedures are needed to deal with Al Qaeda and other foreign-based jihadist groups.
The differences between the Crocker case and cases involving international terror organizations are so obvious that it is astounding that Koppelman never even tries to explain why they don't matter:
According to court documents, the investigation of Demetrius Crocker began in early 2004, around the time he told a man named Lynn Adams that Timothy McVeigh "[did] things right." Adams, who had met the Mississippi-born farmhand through a mutual acquaintance, began to hear from Crocker about his plans for mass murder. A resident of rural Carroll County, Tenn., an hour northeast of Memphis, Crocker told Adams he wanted to kill the black population of nearby Jackson, Tenn., with mustard gas and explode a bomb outside a courthouse.
By then, Adams had learned a lot about Crocker's background: his previous membership in the neo-Nazi National Socialist Movement, his anti-government beliefs, his fascination with Adolf Hitler and idolization of Oklahoma City bomber McVeigh. . . .
[T]he Carroll County Sheriff's Department passed the case on to the FBI. Steve Burroughs, an FBI agent, began working undercover. Posing as an employee at the Pine Bluff Arsenal in Arkansas, where some of the country's remaining chemical weapons are stored to await destruction, Burroughs offered to help Crocker obtain explosive materials. Without Burroughs' prompting, Crocker became more ambitious. He began talking about blowing up a radioactive bomb outside the U.S. Capitol.
Unquestionably, Crocker was a serious danger and a would-be terrorist by any definition. But note what is missing from the case: no ties to a foreign organization, no logistical support or terrorist training, no indoctrination in the methods of secrecy. Regardless of the merits of the Padilla case - a subject for another day* in itself - the fact that Crocker was prosecuted does not show that similar methods would be successful against a radically more organized threat, nor does it disprove the Bush Administration's claim that different methods would be more effective in doing so.
In fact, recall that Koppelman's own account makes clear that catching Crocker was a stroke of blind luck, precisely because Crocker - unlike foreign jihadists with the support of a foreign organization - trusted the wrong guy:
Crocker . . . hadn't learned nearly as much about Adams. He didn't know, for example, that Adams was a former sheriff's deputy and a confidential informant for the Carroll County drug task force.
You want to take a chance that the next Mohammed Atta will be that stupid? The last one wasn't.
On the other hand, Koppelman does concede a point that undercuts much of Salon's ongoing theory that Padilla and other terror suspects were no danger because they were not all that bright:
There was an element of the fantastic in Crocker's plan; he hoped, he told Burroughs, to obtain the necessary plutonium for the dirty bomb he wanted to explode outside Congress by communicating with mail-order brides from Russia, one of whom would presumably put him in touch with a former KGB agent with access to nuclear material. His lawyers claimed he had an IQ of just 85.
But tapes of the conversations between Crocker and Burroughs reveal that Crocker knew what he was doing. He had made a version of Zyklon B, the gas used in the gas chambers in Nazi concentration camps, and he accurately described its manufacture. He had made nitroglycerin. He had the ingredients for a rudimentary bomb in his home, where he also kept several guns he told Burroughs he would use to kill any government agent sent to capture him.
I'm glad the government was able to take Demetrius Crocker out of circulation. But we were lucky, very lucky, just to get him - and that's one man working largely alone. Organized and well-funded terrorism is a greater threat, and we can't afford to wait to be lucky.
*I will note here that Koppelman takes everything Padilla's lawyer says at face value, including the fantastical claim that he was given a hallucinogen while being interrogated. Really.
I'm not opining on Padilla's relative level of guilt, nor do I want accusations that I'm pro-terrorist or anything like that. I'm more than convinced that he's a world-class scumbag, and his safety and civil rights are no concern of mine.
But what I think is less important than the health of our Constitutional system, and the laws we live by.
And what doesdisturbs (and others like me) is that the entire crux of your argument, Crank, is that Padilla had "ties to a foreign organization . . . logistical support or terrorist training . . . indoctrination in the methods of secrecy." But neither you, nor I, nor his lawyer, nor anyone in existance that I'm aware of except for a small number of officials tied to the Administration/Dept. of Defense/etc., has ever seen anything that substantiates these charges.
That's why, as you know, due process, which includes the presentation of the evidence against you, is such an important part of our justice system.
As a non-lawyer, I will express my non-legal but logical opion. THE TERRORIST ARE NOT US CITZENS AND HENCE ARE NOT AFFORDED PROTECTION BY THE CONSTITUTION!
They are also not legal combatants and hence are not afforded protection by the Geneva convention!
End of Agrument!
I must make the gratuitous accusation, mike is pro terrorist!! :)
Ok, ya' got me, Abe. You can start calling me by my real name now: Osama bin Mike. ;-)
And as to Lee, in the face of that awe-inspiring non-legal, but logical, grammatical, throughly spellchecked and factual declension, I throw up my enemy combatant hands in the universal sign of surrender and ask that you spare me any more of your intellectual bad-ass smackdowns.
Please Lee, no more.
Mike, when one declares the end to an "agrument", what else can you do?
Easy to declare someone an enemy combatant, particularly if you are able to hide behind "classified" information.
And I think his safety and civil rights are very important, even if he is an international criminal. The problem with calling anyone a terrorist is that it is pejorative...We need to start calling them "international criminals" working in a "international criminal conspiracy" for I think we can all agree that they are that...
I think there needs to be procedures for international criminals that has due process and sufficient law enforcement tools. But to eliminate liberty and civil rights because they hinder investigations is like, oh, eliminating air because it makes fire...seems like I read that somewhere...
I think his safety and civil rights are very important
Of course. I was distinguishing between my belief that everyone, in the abstract, MUST be safe and have his civil rights protected . . . and my very personal opinion that I hope Padilla is given a fair trial, in the presence of his attorney, before he's found guilty and hanged by the balls until . . .
Well, you get the idea.
Stros guy, you raise a number of good points. But I don't see an act of war as a criminal act. The current system is flawed, but reclassifying the enemy as a crime syndicate does little to move us in the right direction.
Thanks for correcting my spelling and proving again why depending on lawyers to handle things continues to make things a mess. They focus on the details and miss the core of the issues.
The argument that someone is an "international criminal" versus a terrorist is again more lawyer parsing of wording. Do we have to revisit asking what the defintion of "is" is yet again?
The core issue is how to handle individuals who refuse to abide by any rules of war. To them there are no such things a non-combatants. Everyone is a target. Such people are not soldiers; just killers of the innocent. The American legal system is totally ill-equiped to handle such people. Hence other processes are needed.
Lee, the spelling and grammar are incidental, this is true. Sorry to be petty in that regard. I mean it.
But when you first miss, then later ignore, the key fact, namely that Padilla is an American Citizen, well you can't really expect us to take your assertions seriously, can you?
And when someone rants in ALL-CAPS, then declares unilaterally that the "agrument" is over, does this person really expect to have his points addressed in earnest. Little tip: when you start screaming (i.e., ALL CAPS), you've told your opponent that you have no solid points left in your arsenal.
Lawyers may be pains in the ass (I plead guilty), but at least we understand the importance of laying out a solid argument.
Fact: Padilla is a citizen.
I will note here that Koppelman takes everything Padilla's lawyer says at face value, including the fantastical claim that he was given a hallucinogen while being interrogated.
Padilla spent 1,307 days at the Naval Consolidated Brig in Charleston, S.C., where, his lawyers allege, he was kept in solitary, deprived of sleep, drugged with PCP or LSD, held in stress positions, and blindfolded, shackled and deafened on the few occasions he was allowed out of his 9-by-7-foot cell.
Crank, do Padilla's lawyers allege such treatment or not? If they do, how does Koppelman reporting it constitute "tak[ing] everything Padilla's lawyer says at face value"?
Am I missing something here?
Responding to the fact that Padilla is an American citizen, what if we parse the situation into two cases depending upon if the person is an American citizen or not.
If the person is not a citizen; then I stand by my original position. No protection by the constitution. We do not attempt to treat this like a criminal case. The Clinton era thinking that we approach terrorism with US criminal code is out the window. It is an inappropriate use of our legal system.
If they are an American citizens, the basic premise of lawyers is that all of our laws apply and we treat them like criminals.
A hypothetical situation from WWII. An American citizen is working for the Nazis to plan to blow up the Brooklyn Bridge. The person(s) is caught. They are working for a foreign entity. They are spies with deadly intent; not criminals. My position is that they have just given up their American citizenship. By the act of working for an enemy of the US to harm American citizens; they forfeited their citizenship and all of their rights.
The question is what burden of proof (and in what venue should this proof be established) is required show that indeed they were working for this foreign entity. A normal court of law or some other venue?
My position is that they have just given up their American citizenship. By the act of working for an enemy of the US to harm American citizens; they forfeited their citizenship and all of their rights.
The Common Law as interpreted by Lee?
We have a Law for what you've described, Lee. It's called treason. And like any other charge, the suspect is entitled to due process: notice of the charges against him, a right to refute the evidence laid forth, and counsel to assist him in his defense.
If after the application of such Due Process, a jury of his peers finds him guilty, then may whichever entity he serves have mercy on his soul, because the debate below notwithstanding, treason is a capital offense in every country I'm aware of.
And while acknowledging my ideological opposition to capital punishment, you wouldn't see me crying for anyone hanged because he committed treason and tried to kill Americans to demonstrate it.
Thanks for the legal term. IMHO, I have can't see the rationale to continue to give full rights to a citizen aligned with foriegn interests who is now committing acts of violence against American citizens; not military targets.
Maybe because treason was invisioned to be giving aid and comfort to the enemy; not actually killing large numbers of innocent civilians. Also maybe treason was seen as an act during war with another nation. We are not in such a war. We are fighting no physical nation. Doesn't that make the traditional concept of treason out of date with the new reality?
How do you view non-citizens like the 9/11 terrorists? Why confer upon them the legal rights of a US citizen?
killing large numbers of innocent civilians
That's called "murder."
Doesn't that make the traditional concept of treason out of date with the new reality?
Why? Why does it matter whether they're allied with a sovereign nation or merely trying to foment destruction from within? If I'm making a mistake concerning the elements of treason or any other crime, I defer. But either way, they should be afforded due process.
How do you view non-citizens like the 9/11 terrorists?
Not sure why it matters how I view it? I've been discussing Constitutional standards. But since you ask, I'll answer that through your second question:
Why confer upon them the legal rights of a US citizen?
First of all, due process is only one right among many afforded US Citizens.
Second, due process is such a low standard, I don't see why we'd want to take it away from anyone. Like the right not to be subject to cruel & unusual punishment, or not to be tortured, it's such a basic notion of human rights, I want everyone who steps foot in the US to have their rights of due process.
If someone faces penalties up to & including death, wouldn't you want to know that they at least had a chance to answer the charges against them? To have assistance of counsel? To face trial under Anglo-American rules of evidence & fair procedure?
I know they have no Constitutional Right to it, but you asked me my opinion, so there it is.