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June 5, 2008

Alleged 9/11 mastermind requests the death penalty in GTMO arraignment

As detailed in this Reuters story, the "accused al Qaeda mastermind of the Sept. 11 attacks stood in a U.S. military court on Thursday, sang a chant of praise to Allah and said he would welcome the death penalty."  Here are more details:

"This is what I wish, to be martyred," Pakistani captive Khalid Sheikh Mohammed, the highest-ranking al Qaeda operative in U.S. custody, told the Guantanamo war crimes court.  He and four accused co-conspirators appeared in court at the Guantanamo Bay U.S. naval base in Cuba for the first time on charges that could result in their execution.

As the judge questioned him about whether he was satisfied with the U.S. military lawyer appointed to defend him, Mohammed stood and began to sing in Arabic, cheerfully pausing to translate his own words into English.  "My shield is Allah most high," he said, adding that his religion forbade him from accepting a lawyer from the United States and that he wanted to act as his own attorney.

He criticized the United States for fighting in Afghanistan and Iraq, waging what he called "a crusader war," and enacting illegal laws, including those authorizing same-sex marriages.  The judge, Marine Col. Ralph Kohlmann, tried to persuade Mohammed to accept an attorney, telling him, "It's a bad idea for you to represent yourself."

Mohammed looked old and portly and wore a long, bushy gray beard and big black military-issue glasses. He wore a neat white tunic and turban, in stark contrast to the saggy white undershirt he wore in photographs taken after his capture during a raid in Pakistan in March 2003.

Mohammed and co-defendants Ali Abdul Aziz Ali, Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi and Walid bin Attash are charged with committing terrorism and conspiring with al Qaeda to murder civilians in the attacks that launched the Bush administration's global war on terrorism.  They also face 2,973 counts of murder, one for each person killed in 2001 when hijacked passenger planes slammed into the World Trade Center, the Pentagon and a Pennsylvania field.

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Comments

This isn’t about sentencing. This isn’t even about “national security.” This is about the bizarre politics of terrorism. And, let’s face it, the way we have handled the issue has turned actual legal and moral questions into some sort of political act.

First of all, I did find it sort of odd that the administration and the defendant are in complete agreement about same-sex marriage, whereas both Pakistanis and the administration tolerate same-sex relationships.

In the past few years we have seen the administration giddily announce that they had found a way to conduct show trials without Congress’ approval or review by the courts. This proved to be impossible, and they were forced to go on bended knee to Congress, and to submit to some kind of review by the courts both in terms of direct review and collateral attacks. Sure, while Congress showed some deference to the administration, they attempted to take the prosecutions out of the political process, knowing, it seems that “defendants” were being selected for their political cachet rather than the strength of the proof against them. This culminated in motions for to remove legal advisors to the convening authority being granted, with embarrassing findings of fact.

But, from the defendant’s point of view, this isn’t about guilt or innocence, either. It is about “martyrdom.” In essence, they see it all as a political question as well. If the US figures out a way to execute them, they will see it not as a determination of guilt and sentencing, but a decision by the US as a whole to kill someone that they think should be killed for something. Even sadder still these defendants don’t really want an exploration into the more difficult legal questions of the evidence against them or whether they are really beyond rehabilitation or there are no mitigating factors. (Their lawyers probably will press these points as their lawyers probably rightly believe that their clients are less than competent and don’t really want to assist in their own defense.)

Consider this: in most run-of-the-mill prosecutions for everything from assault to murder many defendants will try and advance some bizarre theory as to why they didn’t do it, or shouldn’t be punished. Yet, after initial pre-trial proceedings most cases will be resolved via a plea bargain without our legal structure and the defendant is moderately glad to get what he gets. Even cases in cases that are tried, defendants generally don’t demand martyrdom. Instead, sit quietly and cooperate with their lawyers. There are some exceptions to this rule (usually by defendants with mental problems), but the strength of our system of justice is that most prosecutions do not seem to all parties like a political act.

But, in the case of these “commissions” this has failed. While many lawyers on both sides want to take this out of the realm of politics and make it about “law” and “facts” this isn’t going to happen at this point. Our decision to treat these things as a political matter has been made, and we have gone down the defendant’s road.

Posted by: S.cotus | Jun 5, 2008 3:06:55 PM

S.cotus:

Many a Nazi leader declined to renounce the Fatherland and went to the gallows sure that he was a martyr to the "noble cause" of killing the Jews (a cause enthusiastically shared by the current bunch as well), plus anyone else who opposed their effort to impose their belief system on the world through mass murder.

Fine. FDR hanged some Nazi saboteurs and Harry Truman was fully on board with the so-called victor's justice that hanged quite a few more.

These 9-11 butchers earned it and now, unless we lose our nerve, they're going to get it. A worthier bunch would be hard to imagine.

P.S. If you're serious about asking "whether they are really beyond rehabilitation or there are no mitigating factors," I can only say that you have given a new and enhanced definition to the word "credulity."

Posted by: Bill Otis | Jun 5, 2008 8:31:01 PM

So, essentially you are arguing that neither “facts,” “law” or evidence matter. Instead, you just want a political act.

Since Doug is speaking of this as a “sentencing” argument, talking about alternatives to killing the defendants is fair game. Moreover, in the one accepted guilty plea (of Hicks) which just about all agree was really a political compromise between Australia and the US, the defendant, while hardly a mastermind, is now on some form of close supervision in Australia. Somehow, the US doesn’t have a problem with that.

As someone who routinely brags about having been a US Attorney, you are now advocating for a show-trial with a pre-ordained conclusion. Which is exactly what these defendants want. Along with the perils of same sex marriage, this is another thing where the administration and the defendant are on the same page.

Posted by: S.cotus | Jun 6, 2008 7:10:03 AM

S.cotus:

"So, essentially you are arguing that neither “facts,” “law” or evidence matter. Instead, you just want a political act."

I will stand on my argument as I cast it, not as you re-cast it. This would be the case even if your re-casting were faithful to what I said, which it is not and does not attempt to be.

"Since Doug is speaking of this as a “sentencing” argument, talking about alternatives to killing the defendants is fair game."

I don't recall saying that the subject matter wasn't "fair game." The problem is not with the subject matter, it's with what you say about the subject matter.


"As someone who routinely brags about having been a US Attorney..."

Go right ahead and quote any words of mine in which I "brag" about it. If a point be made of it, however: If you're waiting for me to be ashamed of my job, which I held under administrations of both parties, you'll be waiting a long time. And if I did not tell people about my prior employment, I would be accused -- with you right at the head of the line -- of concealing my "biases."

"...you are now advocating for a show-trial with a pre-ordained conclusion."

Go find the quotation for that one too.

"Which is exactly what these defendants want."

What they want by way of punishment is irrelevant to prevailing law or the administration of justice. We're not asking for their approval.

"Along with the perils of same sex marriage, this is another thing where the administration and the defendant are on the same page."

Your obsession with same sex marriage might be of interest to you, but it isn't to me. As you were saying just a few sentences before, this blog is about sentencing. I'm sure they have gay marriage blogs all over cyberspace. This is not one of them.

I suppose the Administration and the defendants are also on "the same page" in preferring sunny days to ice storms. So what?

Posted by: Bill Otis | Jun 6, 2008 1:24:27 PM

Mr. Otis,

I am not saying you should be ashamed of your job, I don’t really know if you worked hard or were a schmoozing slacker. DOJ has both kinds.

However, you do seem to invoke it as a point of authority. Essentially your argument is “Trust me, I used to be in charge of the appellate section....”

The reference to same-sex marriage is based on a statement made in the above post. And, as I said, it illustrates how the administration (though not necessarily the presiding judge and the prosecutors) and the defendants completely agree about the status of these commissions. Both see it as a way to defend their rhetoric. The administration sees an opportunity for a show-trial where it will be able to show its power over the immoral terrorists. The defendants see it as an opportunity for a show-trial where they will be martyred by the gay-marrige-loving Americans. The administration, strangely enough, agrees on the gay marriage issue with the alleged terrorist.

But, getting to your actual argument, I am going to take it line by line.

>>Many a Nazi leader declined to renounce the Fatherland and went to the gallows sure that he was a martyr to the "noble cause" of killing the Jews (a cause enthusiastically shared by the current bunch as well), plus anyone else who opposed their effort to impose their belief system on the world through mass murder.

I am not sure what you mean by this. I guess you are trying to say that not all martyrs are immoral. I sort of see this argument. However, by today’s standards we would simply see the Nazi regime as immoral itself and the people that died politically opposing it as dying useless deaths. Or, maybe you are arguing that there is some similarity between a terrorist defendant and a member of the French resistance. I really can’t be too sure.

“Fine. FDR hanged some Nazi saboteurs and Harry Truman was fully on board with the so-called victor's justice that hanged quite a few more.”

So what? That doesn’t make it right. Nor does it make it legal by today’s standards. In fact, even in In re Yamashita

But, if we are going to do this, let’s call it “Victor’s Justice.” Let’s just execute them in public within weeks of their being caught. Lawyers should have absolutely no involvement. The administration didn’t want this. They wanted show trials. They even wanted lawyers to bless the show-trials as somehow some kind of legal process. (And the rest, as you know, is the convoluted procedure of the military commissions.)

>>These 9-11 butchers earned it and now, unless we lose our nerve, they're going to get it. A worthier bunch would be hard to imagine.

Well, whether they “earned” it is a matter of facts and law. Seeing that the administration has been very tight with presenting facts (and there have been no actual commissions) and the burden of proof (under the statute) is with the government your assertion that people “earned” it is specious and intellectually dishonest.

You also seem to conclude that if any of these defendants are acquitted we have “lost our nerve.” Again, you seem to be arguing for a conviction at all costs – regardless of the facts or law. Is this “nerve.” You, seem to be arguing that simply killing people is an example of “nerve” whereas any legal process is an example of “loss of nerve.”

Actually, there has been a fair amount of “loss of nerve.” Many GTMO detainees has been released for a variety of reasons. You would call all of these releases a “loss of nerve.” Some were released because of accords with their home county, I guess this means that international relations is a per se loss of nerve. Some were released because earlier proceedings found a lack of evidence. Again, a loss of nerve. And finally, Mr. Hamdi was released pursuant to a settlement with the government after the Supreme Court rejected most of the government’s arguments. I guess Hamdi is a “loss of nerve” and you would have rather the Supreme Court have said demanded his executive as being an example of “nerve.”

>>If you're serious about asking "whether they are really beyond rehabilitation or there are no mitigating factors," I can only say that you have given a new and enhanced definition to the word "credulity."

Considering this is precisely what happened in the case of Mr. Hicks, who was facing one of these commissions but is now free in Australia (though subject to some supervision), your comment doesn’t make that much sense.

Posted by: S.cotus | Jun 6, 2008 4:14:09 PM

S.cotus:

Fine. You get the last word. Your fawning affection for these terrorists is a bit much for me, however dressed up it may be as devotion to due process.

I'm glad you weren't on the plane that one of your rehabilitatable (if not entirely innocent) buds smashed into the Pentagon. A friend of mine was, however.

Posted by: Bill Otis | Jun 6, 2008 4:50:28 PM

I had multiple friends -- seven -- that died on 9/11 (some were in the WTC or Pentagon -- do they count as a whole friend or a half?). Does this make me a BETTER American than someone with only one friend died that day. Under your calculus, it does. Therefore, under your logic, I get to decide what the constitution means, right?

Oh, and questioning my patriotism when I argue that we are a nation of laws and open discussion rather than show-trials and “secret” evidence. Where did you learn that litigation tactic?

There isn’t an “affection” for these people. But, the fact is that we don’t know much about them. All the American public knows is that the few of them to appear in open court have appeared crazy. Recent days are no exception.

I seriously doubt that anyone that nutty could have sewed such destruction on the US. But, who knows… maybe they did. Or maybe they only sewed part of it. Unfortunately people like you are doing your best to prevent any American from making an informed judgment about this.

These military commissions (which have not actually started) are hardly “open” since 1) they are not on American soil so Americans cannot spectate; and 2) even the testimony of the accused can be censored. Moreover since the legal advisor to the convening authority was disqualified for unlawful command influence (i.e. essentially trying to politicize the prosecutions) it is doubtful that anyone is taking the process too seriously.

So, these are hardly a public trial as contemplated by this constitution that you reject. But, even assuming that the Sixth Amendment doesn’t cover Arabs (this is pretty much a direct quote from a DOJ employee), Americans still should be able to judge for themselves whether 1) the “GWOT” is being fought against the right people; and 2) whether we have degraded ourselves by fighting it in a way that Americans, as a whole will not tolerate. People like you seem to want to do your best to deprive Americans of that choice. To you, the constitution is some kind of annoyance. Something to be gotten around. To me, the constitution is, at a minimum a way to structure our choices about how to run the government.

Finally, considering that the administration has conceded that many of the detainees actually are not only not going to be subject to the death penalty, but actually are capable of rehabilitation, your views are in conflict with the administration. Somehow I don’t see you objective to David Hicks’ release and supervision.

Oh, and you have not directly responded to any of my arguments, so it seems that the best you are capable of (in litigation and in law) is political rhetoric and counting how many friends we lost on 9/11. (And I am ahead on both scores, I think.)

Posted by: S.cotus | Jun 6, 2008 7:54:24 PM

S.cotus:

I will cast my lot with FDR and Harry Truman, who knew what to do with the brownshirted killers of their day. If you don't know what to do with the current version, it's beyond my power to try to tell you.

The reasons I do not respond directly to your arguments are (1) your belligerence has become tiring, and (2) the arguments are incomprehensible. If I could decipher them, then on a good day I might give it a shot.

My litigation record is irrelevant to the subject matter of this thread, but since it seems to interest you, feel absolutely free to explore it. My name is on dozens of Fourth Circuit cases. Unlike you, I don't use an alias.

I am sorry you lost so many friends to the 9-11 plotters, and I hope they get the death sentences they have earned.

Posted by: Bill Otis | Jun 6, 2008 11:56:24 PM

Thank you for your reasoned response. I think that there are a couple of confusing parts which require some illumination. Now would be a chance to show that you actually are capable of a reasoned discussion or legal argument, rather than simply conceding points and making odd historical analogies and taking political positions.

First of all, I am not "belligerent.” I was somewhat confused by your reference to your loss on 9/11. You seem to be implying that because you lost a friend of something that your arguments have added weight. However, your losses on that fateful day seem somewhat smaller than mine, and I seriously wonder if this mean that you will concede that my arguments are per se better than yours. You need to respond to this argument. Maybe we could post a list of the friends we lost (together with a description of the nature of our friendships) and whoever lost the largest quantum friends would win. However, I assure you that my losses on that day were more than yours and I am almost insulted that you would suggest that you were victimized more than I was.

I have stated my arguments clearly. Everyone else understands them, you are just choosing to ignore them because you think that you earn points by making some sort of “might makes right” argument. Instead, like most people you refuse to actually address them. This would appear to be a concession of my arguments.

On the other hand, I have addressed each and every point you have made. I have explained why you are wrong as a legal and moral matter. You cannot offer a rebuttal other than to say “I will cast my lot with FDR and Harry Truman, who knew what to do with the brownshirted killers of their day” which is something I don’t understand. The “Brownshirts” were agents of the German state (before Truman was president) and neither Truman nor FDR really cared too much about the actions of the Brownshirts in Germany until Germany started invading other countries. So, your comment doesn’t make much sense, or maybe it is some kind of rhetorical flourish for the non-lawyers. This would require more legal explication.

Anyway, for the assembled audience let’s lay out some basics.

1) So far, the American public has been presented with no evidence (beyond confessions made after several years in captivity) that these defendants actually committed the crimes they are accused of. All the American public has to go on is the “say-so” of the administration.

2) The American public, so far, has only seen apparently insane and incompetent people tried as “terrorists.” Not one of them would appear to be any real threat to the US, simply because they are too nutty. Not a one of them would appear to be any kind of calculating mastermind. Perhaps there is evidence that one or more of them actually was that calculating, but none has been presented as yet. As it stands now, the best we have is the say-so of the government that a screaming lunatic that demands to be “martyred” has not only killed many Americans, but also is so heinous that should he be tried in front of a jury he would manipulate or charm the jury into siding with him.

3) You did not respond to the argument that the MCA was specifically designed to counteract political decision-making in the military commission process. Indeed, the fear that the commissions would be used to secure political results appears to have been foremost on the minds of Senators McCain and Graham. Finally, you did not explain whether it was correct to disqualify the legal adviser to the convening authority because, it appear (from the record) he attempted to convert at least some of the commissions into political acts.

4) You did not explain why the alleged acts of these terrorists are so great as to require that Americans cannot judge for themselves (via a truly public trial) whether they really are any different than any other criminal. Instead, we need to go with the administration’s say-so..

And finally,

5) You claimed that none of the people facing commissions could be rehabilitated. You also seemed to say that regardless of the evidence they should be killed. However, you did not explain whether the administration is legally and morally wrong by allowing David Hicks to be transferred to Australia, where he would face a very short sentence followed by a period of what amounts to “supervised released.” Now, everyone agrees that the resolution in Hicks’ case was a political solution, but it would seem to be in variance with your view of matters.


Posted by: S.cotus | Jun 8, 2008 7:54:12 AM

S.cotus:

It's the oldest debating ploy in the book to lay out longer and longer lists of arguments, and when, by attrition, your opponent says (as I have), fine, you get the last word, to proclaim that he has conceded whatever your latest bromides assert.

I have told you already why I've given you the last word, but you're not satisfied and you're determined to remain unsatisfied. So I will elaborate just a little, because it really is futile with you.

Part of it is that you say things for which you have absolutely no evidence and offer none. This has taken the form of claiming that I "bragged" about having worked in a United States Attorney's Office, when I did no such "bragging" and you were unable to cite (and disinterested in citing) any post of mine where this allegedly had occurred.

In your note now, you make the similarly unproven (and ridiculous) claim that, "I have stated my arguments clearly. Everyone else understands them..."

Really? How do you know that "everyone else understands them"? Has everyone else sent you an e-mail saying, "Your arguments are clear and I understand them"?

Of course they haven't, as we both know. You just felt like congratulating yourself on the supposed clarity of your arguments and, for good measure, pretending that "everyone else" joins you in this generous assessment.

I am just not going to take that sort of thing seriously, or spend a whole bunch of time responding to it -- or what comes in tow with it -- because at best it would be an unproductive use of my labor.

But the principal reason I'm not going to engage you is not that you make statements with no proof. The principal reason is that what you say is more emotive than argumentative in the ordinary sense, and the emotion behind it is so alien to my way of thinking that it's hopeless to try to break through to you.

The attitude that comes through in your writing is one small step away from the truly crazy attitude held by some on the Left that these terrorist killers are either (a) media figments created by Bush/Cheney; (b) if not figments, are in league with Bush/Cheney, who had foreknowledge of the attacks; or (c) even worse, were active accomplices of Bush/Cheney, who planned and directed the attacks to whip up support for the Iraq war.

I don't know if you believe any of that stuff, but your posts are consistent with believing it, and that's enough for me to wave goodbye. I also will not, for example, engage in substantive debate with people who claim that THEY DO TOO HAVE 29 DOCUMENTED CASES OF ALIEN VISITATION.

Debate presupposes at least a bit of common ground, and we don't have that. You insist that nothing has been proven in court against these terrorists (which is itself completely false, see, e.g., last Friday's Fourth Circuit opinion unanimously affirming a terrorist's conviction). But remaining "open-minded" about whether these people committed grievous wrongs against our country is a burlesque of open-mindedness. You're certain that Bush is a thug, but agnostic on the question whether these self-styled jihadist "martyrs" did the least little thing wrong, because The Government Is Hiding The Truth, and military commissions aren't being held in Yankee Stadium where everyone can get a ticket.

Sorry. I am not an adherent of the America Stinks theory that is about one-eighth of an inch below the surface or your arguments. I don't think the country "deserved" 9-11, or, as Rev. Jeremiah Wright has said, that it was the chickens coming home to roost. I have less than no interest in asking, "Why do they hate us?" I am not agnostic about whether we have the right to kill the foreign enemies who tried to kill us (as FDR wasn't), and who will try again. I don't care if they got their Miranda rights, and I don't believe people out to destroy the country have or ought to have the same procedural protections as normal criminal defendants.

Because there is little or no common ground for us to share, I have no way of communicating with you at any level that makes sense to me. I wish it were otherwise, but it isn't.

Posted by: Bill Otis | Jun 8, 2008 9:26:46 AM

There are a number of problems with your argument. The biggest one is that because you do not actually address my argument you presuppose that I have adopted some non-legal political position. I have not. In summary, I do not think that the administration is “behind” 911. Instead, I think they have mishandled the legal questions surrounded the GWOT. Secondly, I do not believe “America stinks.” It is the greatest country in the world, and I am a patriot. Although you seem to question my patriotism, I am pretty sure I love America more than you.

The other problem with your position (that my position is wrong), is that although you understand that it is largely derived from Congressional testimony and a couple or orders from military judges, you seem to think that by saying that it mine alone it lacks less weight. While it may be true that Col. Brownback (and Sen. Graham) were wrong, you still need to respond to their arguments.

Taking your objections in turn:

First of all, I did not say that everyone agrees with my argument. I did, however, say, that to my knowledge, everyone *understands* my arguments. In fact, for the most part, my arguments are really nothing new. Each one has been raised in some GTMO-related context. Some of them have even been concede by the administration in court (though their public stance usually won’t call it a concession). I seriously doubt that anyone really completely invents an argument from whole cloth, anyway. Most legal arguments don’t really have “proof.” I could, for example, cite you to a record. For example, on p. 11 of Col. Brownback’s order, available at, http://media.miamiherald.com/smedia/2008/05/10/10/Hamdan_Hartmann_Ruling.source.prod_affiliate.56.pdf he writes “Telling the Chief Prosecutor… that certain types of cases would be tried… because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case would be at play.” I am sure that you read this order when it was issued, and I am quite shocked that you did not respond to it.

Second of all, there is absolutely no “emotion” in my arguments. Calling your opponent’s arguments “emotional” is a very old trick in some book. However, with the exception of your assertion that your opinion is more valid because some of your friends died on that day seems somewhat emotional.

Third, I have to admit that I am completely at a loss aas to why you are using large letters and talking about aliens.

Fourth, I never said that the “terrorists” were in “league” with the administration or made up by them. You made that up. What I did say, is that the administration has not fully described the nature of these terrorists in the way that the public would learn about the motivations, of say, a murderer. Instead, we are told time and time again that they are just too much of a threat to be described.

You have said numerous times that you won’t engage me. Yet, you do spend even MORE time telling me why you won’t engage me.

>> It's the oldest debating ploy in the book to lay out longer and longer lists of arguments, and when, by attrition, your opponent says (as I have), fine, you get the last word, to proclaim that he has conceded whatever your latest bromides assert.

What book is this? I though the oldest trick in the debating book was to make a Hitler reference. But perhaps I am wrong.

>> I did no such "bragging" and you were unable to cite (and disinterested in citing) any post of mine where this allegedly had occurred.

Perhaps you will simply state that you “stated” this. But you do use this as a point of authority.
http://sentencing.typepad.com/sentencing_law_and_policy/2008/06/first-circuit-b.html#comments (“Having once been in charge of the appellate division in a United States Attorney's Office, I doubt that the government will appeal, simply because there is no longer any discernably legal standard under which a variance, up or down, can be said to be erroneous.”)


Posted by: S.cotus | Jun 8, 2008 2:07:17 PM

While S COTUS is more than handling his own, I cannot let Bill's comments about not caring why the "terrorists" hate us pass by - that is precisely the tone death response that the Bush Administration has pursued in the "War Against Terror" which has been utterly refuted by anyone else (anyone who does not think that the terrorists were taking revenge against US actions should be directed to the 9-11 Commission Report). Instead, Bill would treat the motivation of a terrorist the same as some idiot who robs the local Kwickie Mart and shoots the cashier. Of course, thinking like that is why the terrorists will win the war on terror just as drugs have won the drug war.

What makes terrorism terrorism and not a normal criminal act is the pursue of a political agenda. Thus, terrorism is much different than normal law enforcement - the absurdity of Bill's position is that while he discounts the role of political agenda in terrorism and how normal rules of criminal law do not apply (terrorists welcome being martyrs for their cause, thus far from being a deterrent, death is a sought after goal). Thus, Bill would hand a victory to the terrorists by having them executed following a show trial. The proper way to handle terrorists is to try them in accordance with our Constitution - give them real due process, show that we are better than them. Do you think that the terrorists consider the Moussari case a victory? Doubtful - after a fair trial, the guy is going to prison for life and will be forgotten. Instead, doing a show trial and killing a person will make the U.S. appear to be the "Great Satan" that the terrorists claim that we are.

Bill you seem like a smart person, but you are way too typical of American attitudes of ignoring what the rest of the world thinks. Far from being crazy, smart strategy requires knowing what your enemy thinks. The surest way to assure that the War on Terror will result in major failure for America like the War on Drugs did is to ignore what the rest of the world thinks - especially the Moslem world. The way to beat terrorists is not by giving up our freedom and shredding our Constitution to kill a few of them in a show of feel good vengence - it is to let the American constitution show that even the most dispicable among us get a fair trial and that this is a country where people can hold whatever crackpot ideas they want. The oldest advice in war in the book (Sun Tzu's The Art of War, to be specific) is to know your enemy. S COTUS understands the enemy and what the enemy thinks - Bill (and the Bush Administration) doesn't.

Posted by: Zack | Jun 9, 2008 12:15:16 PM

Zack,

I have mostly given up on this particular thread, because I have no common ground with S.cotus, because I cannot decipher his arguments, and because he mis-characterizes not only what I have said but what he has said. A recent and blatant example of the latter was his response yesterday when I called him on his chest-thumping claim that "Everyone else understands" his arguments.

That was his exact language. Check it out (it's at the beginning of the third paragraph in his post on June 8, 7:54:12 AM.

When I called him on this, his response was, "First of all, I did not say that everyone agrees with my argument. I did, however, say, that to my knowledge, everyone 'understands' my arguments."

Well, not exactly. First, at no point did I say that he had claimed everyone "agrees" with his argument. That is a manufactured straw man and he knows it. Second, his actual claim was an UNQUALIFIED assertion that everyone understands his arguments. Knowing that he could prove nothing of the kind, he simply re-wrote what he'd said, morphing it to read, "to my knowledge, everyone understands my arguments."

That is not an honest recounting of the dialogue, nor is it something S.cotus could have been mistaken about, since the discussion was about his own very recent words on the same thread.

There is simply no use in trying to debate someone who will not tell the truth about what he has said or take responsibility for it.

As to your view of the war on terror: I am not naive enough to think that asking, "Why do they hate us?" is anything other than the camel's nose of an argument that the behavior of the United States justified the terrorists' hatred. It is, in short, a slightly different way -- posing as a question, but not really a question -- of lining up behind Jeremiah Wright's view that 9-11 was an example of the chickens coming home to roost.

Like other of Rev. Wright's views, this is just rancid anti-Americanism. It is both vile and false.

I am no more interested in "why they hate us" than I was interested in why the Nazis hated the Jews. We dealt with that bunch of fascists the way we ought to deal with the current bunch, namely, not by being understanding, or trying to show them how pristine we are, but by employing whatever force was needed to put them out of business, period.

We did not win German "hearts and minds" during WWII. We killed their soldiers and laid waste to their lands until they got it through their heads that a world war of conquest and the extermination of the Jews wasn't such a good idea, and that is was over with because we dictated that it was over with. Since then, Germany has not been a threat to it neighbors and has lived in peace and growing prosperity, for over 60 years.

We know what works because we have seen it work. And it isn't asking, hat in hand, "Why do they hate us?"

Posted by: Bill Otis | Jun 9, 2008 3:38:58 PM

Mr. Otis, Once again you do not address anyone’s arguments. (Mine were labeled succiently, and included citations and links to sources materials.) The best you can muster is to call peoples’ arguments straw men and refer to “Reverand Wrights Views” as if everyone knows or cares about what they are. Zack seems to understand my arguments. You just don’t want to.

To be perfectly clear: 1) nobody is justifying terrorism; and 2) nobody is claiming that 9/11 was some kind of government conspiracy.

I mean, seriously, for a lawyer, you seem to be based all your analysis on nothing more than lay politics. I am sure, given the experience you have as a lawyer which you bragged – yes bragged – about you could do better.

Rather than offer any legal analysis you claim that you knew people that died on 9/11 (like that matter) and you claim that the defendants are “animals.” Now you are just resorting to personal attacks (on me and Zack), and the old lawyer standby saying “I don’t understand.”

Rather then respond to the arguments made, you seem to be raising an additional argument in your last post. To me, it does not matter *why* they hate us, but whether “they” will see their hate as vindicated via show trials and martyrdom. (I realize that people may differ with me on this.) My political system (i.e. the US, with its constitution) demands resolve their differences peacefully and actually looks down upon people that martyr themselves. The result is that political acts in the US are generally non-violent processes where the outcome cannot be determined in advance. In short, anyone that hates American foreign policy would be better served by hiring a lobbying firm then by resorting to an act of violence. Anyone that feels individually aggrieved should hire a lawyer.

Now, in return for giving up violent tendencies and martyrdom, it gives people due process and public jury trials. Anyone that thinks the can achieve a political or legal result through violence will be indicted, and probably convicted by a jury. The jury simply won’t care whether their acts of violence were done for some kind of political goal. Nor should they.

The problem is that the administration has chosen to alter this equation. Rather than allow the normal course of justice to take its course and deny the “defendants” the ability to become martyrs, the administration has done its best to do exactly what these people want. The administration’s first attempts to turn the “punishment” of the terrorists into a political act failed when the Supreme Court put a stop to it. When Congress grudgingly got involved, Congressmen seemed (Democrat and Republican) seemed quite concerned with the possibility that these commissions would turn into a political act. Some saw it the way I did: that politics has no role in providing individualized justice. Some saw it as necessary to preserving the integrity of military justice, which disfavors “unlawful command influence.” (Which is essentially the same thing in military terms). Nevertheless, despite this Congressional concern, some in the administration, and unfortunately some in the military saw the need to continue to view the commissions as a political act. This culminated in the legal advisor to the convening authority being disqualified after Col. Davis offered very embarrassing testimony about how he cases were being selected for political value. I cited to the order, but you didn’t respond or read it, which is why you conceded this point.

Perhaps none of this matters to the American public. After all, the miliary is doing its thing in Iraq and Afghanistan, and the only people facing these show trials are Arabs that really hate Americans. My point – which you ignore – is that there is a real casualty here. Americans are being deprived of their ability to actually see the kind of person that is committing these crimes.

On a daily basis, any American can wander into a courtroom in any city and see people facing trial for any kind of crime. They can see the evidence put forward. They can see the arguments made. They can see the sentences pronounced. They can even see cross-examination that might be embarrassing to the government. Even if they disagree with the ultimate outcome, they see the “kinds” of people committing crimes and can reach an independent judgment about 1) whether government is working; and 2) whether the substantive or procedural law needs to change. None of this is present at GTMO. First of all, Americans can’t easily go to GTMO. Second of all, the evidence that is being put forward – even comments by the defendant himself – is being censored for “classified” material. So, there is no way that the American people can reach an informed judgment about what kind of people are being “prosecuted” here.

None of this involves surrendering or capitulating to the terrorists. In fact, it doesn’t even involve exploring their “motives” (unless some sort of insanity, diminished capacity, or similar argument were made). Instead, it involves simply standing for American values and procedure in the FACE of a “terrorist” threat.

Posted by: S.cotus | Jun 9, 2008 4:03:14 PM

S.cotus:

1. I haven't bragged here about my career or anything else -- but I will now. I officially brag that the demands on my time are such that I cannot match the length of your posts.

I wouldn't try to anyway, to be honest, but I just wanted to give you some future grist, so you won't have to make it up -- as you did, for example, in your phony "expalantion" of your claim that "everyone understands" your posts.

2. Speaking of things that don't get responded to, I didn't see in your post -- its length notwithstanding -- the slightest effort to discuss, much less rebut, my observation that we defeated fascism by force, not by humbling asking why they hate us (or hate Jews or whoever else in on the bad list).

But then we know you have previously dismissed FDR and Harry Truman as Falling Short Of Your Superior Wisdom, so what would I expect?

3. You say, "...nobody is claiming that 9/11 was some kind of government conspiracy."

I think you might have blurted that out in the heat of the moment, so I want to give you the opportunity to withdraw the "nobody" part before I say anything more about it.

Posted by: Bill Otis | Jun 9, 2008 5:07:58 PM

Yes. We defeated fascism by force. Big deal. So what? We also defeated the south with force and the British and indians by force, too. Wars are like that.

Sure, some lay people are claiming that 9/11 was part of some government conspiracy, but they don’t count.

The rest of the legal arguments made by Zack and I (which, as I said, include cites and links to orders from the military commissions that support my argument.

If you really were all the lawyer you claimed to be, you could rebut the legal arguments. Not the vague historical arguments and platitudes that are directed at the lay people that you seem to really want to argue about.

Posted by: S.cotus | Jun 9, 2008 9:25:54 PM

S.cotus:

"Yes. We defeated fascism by force. Big deal. So what?"

So we'll do it again this time, without asking why they hate us.

Incidentally, there are those who think defeating fascism was a big deal indeed. Like maybe the biggest deal of the Twentieth Century.

"Sure, some lay people are claiming that 9/11 was part of some government conspiracy, but they don’t count."

Now that's a keeper. Lay people don't count!! Far out.

I beg to differ. My parents (and just about everybody else's) were lay people. I kinda thought human beings counted, with or without a law degree, and that they could have important ideas about sentencing law and policy. But maybe it's just me.

"If you really were all the lawyer you claimed to be, you could rebut the legal arguments. Not the vague historical arguments and platitudes that are directed at the lay people that you seem to really want to argue about."

I am happy to leave the judgment about my lawyering skills, such as they may be, to the judges before whom I have appeared for many years. As I have told you before, my name is on dozens of Fourth Circuit cases, so you can read all about it for yourself. The cases will be easy to find because, unlike you, I do not use an alias.


Posted by: Bill Otis | Jun 9, 2008 10:08:36 PM

You can rehash WWII all you want. That doesn’t change the legal arguments made above that you seem conceded.

Arguing (or having your name on an argument) on behalf of the government in the Fourth Circuit is, well, not that much of an accomplishment. On the other hand, you still have not responded to the legal arguments made here.

I don’t really have much contact with the lay people. They don’t have much to do with my life, so I don’t have much use for them. They don’t run the country. You of all people should know that.


Posted by: S.cotus | Jun 9, 2008 10:41:36 PM

I guess in S.cotus' world, this:

"But, from the defendant’s point of view, this isn’t about guilt or innocence, either. It is about “martyrdom.” In essence, they see it all as a political question as well. If the US figures out a way to execute them, they will see it not as a determination of guilt and sentencing, but a decision by the US as a whole to kill someone that they think should be killed for something. Even sadder still these defendants don’t really want an exploration into the more difficult legal questions of the evidence against them or whether they are really beyond rehabilitation or there are no mitigating factors."

constitutes a legal argument. I guess what makes S.cotus "sad" is verboten.

Of course, when you write crap like this:

"Anyway, let me be clear on my point. It isn’t that complicated. 14th amendment equal protection post-dates the signing of the constitution and the ratification of the bill of rights by over a century. While the constitution was envisioned as a compact between the states and allocation of some federal and state power, and the bill of right was envisioned as a means to protect people from federal power, the post-civil war amendments were viewed as a way to reign in the evil in the south. It was not until later that the “rights” recognized in the “bill of rights” began being “incorporated” to the states (i.e. applied to the states as well as the federal government). The extent to which they applied is not 100% clear, though most people will always say, “sure, they all do.” Off the top of my head, the following are questionable areas of selective incorporation: 1) establishment clause (maybe this is just Justice Thomas); 2) the 2d amendment; 3) 8th amendment prohibition against unreasonable bail); and 4) the interrelationship between the ADA and the 11th and 14th amendments (i.e. Congress’s ability to abrogate state sovereign immunity in the name of the 14th)."

then hand-wringing over KSM wanting to be a martyr is probably one of your better days.

Bill, there are a few things that must be understood about S.cotus: (1) he has an over-inflated view of his intelligence, (2) he never got over the heady feeling of competing with other pseudo-intellectual twits in college who competed to come up with the wackiest points of view on Shakespeare or some other topic and (3) he is envious of real erudition, which, of course, takes time to cultivate.

Posted by: federalist | Jun 9, 2008 11:43:00 PM

What does the 14th amendment have to do with this. Nobody made a 14th amendment argument here. The UCI arguments were under 10 USC 949b(a)(2)(C). Read first. Then post.

Posted by: S.cotus | Jun 9, 2008 11:48:27 PM

Oh, S.cotus, you are so tiresome. The quote is from one of your previous posts on this website. The relevance to this thread is that it is a shining example of just how dumb you are. As they say, stupid never takes a day off, and you are a tireless worker.

Really, S.cotus, understand first. Then post. I wrote "Of course, when you write crap like this [S.cotus nonsense on Bill of Rights] then hand-wringing over KSM wanting to be a martyr is probably one of your better days." Apparently, I have to hit you over the head with the obvious import of that statement, viz., that you say some pretty dumb things in here and that, while dumb, your little whine about how sad it is that KSM wants to be a martyr, while dumb, does not plumb the depths of stupidity that you have exhibited here. Get it now?

I understand that I am using a pretty nasty form of argument, but since stupid doesn't take a day off, it's valid, although I guess it is possible that you had a monkey typing on the machine moment. I don't know--I don't typically look for two bits of wheat in two bushels of chaff.

Posted by: federalist | Jun 10, 2008 12:24:44 AM

Federalist, At least Mr. Otis can write relevant posts and then claim to not have the time to respond to arguments. I don’t see what this 14th amendment stuff has to do with the price of tea in China.

Posted by: S.cotus | Jun 10, 2008 6:34:16 AM

It has nothing to do with the price of tea in China. It has everything to do with how dumb you are. Like I said, understand first, then post, SFB.

Posted by: federalist | Jun 10, 2008 6:57:20 AM

Well, I realize that is the way you people are taught to argue, but whether I am intelligent or not (like the 14th amendment) has nothing to do with the argument at hand. I would urge you to read posts and try and make your comments somewhat relevant as that will aid discussion.

Have a nice day.

Posted by: S.cotus | Jun 10, 2008 8:00:44 AM

S.cotus:

"You can rehash WWII all you want. That doesn’t change the legal arguments made above that you seem [to have] conceded."

Yes, well, "rehashing" how we beat the fascists in WWII might have some lessons about what is needed to beat the modern version, but I'm sure Cindy Sheehan -- and you -- know better. Why study a bunch of old, dust-gathering history? Nothing to be learned there!!!

By the way, is there anything Cindy Sheehan says about our conduct of the war on terror that you DON'T agree with? Anything at all? How about Ramsey Clark? I mean, he's a lawyer, so he might count with you. Is there anything he says you don't agree with?

When I want to concede something, I'll be sure to let you know. Simply posting at great length to outlast the opposition is not "winning" in any recognizable sense. It is, however, the mark of having a boatload of free time, and some day I hope to join you in that luxury.

"Arguing (or having your name on an argument) on behalf of the government in the Fourth Circuit is, well, not that much of an accomplishment."

Gads, S.cotus, you really know how to hurt a guy. Oddly, the opposing lawyers I faced in those many cases were just as sure they were right as you are. In part for that reason, they viewed the government's winning as a considerable if unwelcome accomplishment.

Still, in a way, you're onto something. Whatever success I have had in the Fourth Circuit is due only in part to my efforts. It is due in at least equal measure to the work of my colleagues, who in the trial court built a strong record. It was that record, as much as anything I did, that won the case in the court of appeals.

"On the other hand, you still have not responded to the legal arguments made here."

Because they're still incomprehensible, verbose, unfocused, disconnected and -- most of all -- premised on the wildly mistaken notion that we can litigate our way to victory. As the FDR understood (irrelevant as he may be in your view), the road to victory does not run through the courtroom. It lies in the relentless and unapologetic use of power, determination, moral confidence and, when needed, ruthlessness.

"I don’t really have much contact with the lay people. They don’t have much to do with my life, so I don’t have much use for them."

Then I'm sorry for you, and I think you're missing out on a lot.


Posted by: Bill Otis | Jun 10, 2008 8:47:33 AM

federalist:

I try to talk to a lot of commenters, at least for a few posts, because sometimes you have to get used to a style of argument that at first seems nuts but later can be deciphered.

S.cotus often seems to come close to having some worthwhile idea, but I can seldom figure out exactly what he has in mind. It's like he's speaking a foreign language that I almost understand, but not quite. He's also prone to overstatement, and to taking a personal whack when he gets frustrated. This is not uncommon among human beings, but it does not encourage me to expend a lot of effort trying to reason with him. This is particularly true because there are others here who disagree with me, but in a way that permits a rational debate to go forward.

I think you have more patience than I. But I keep trying, even at my age (as to which I take the Fifth).

Cheers.

Posted by: Bill Otis | Jun 10, 2008 9:10:28 AM

Actually, S.cotus, I did address one of your silly points in my first post. I then dredged up some nonsense you had written earlier to mock you.

Posted by: federalist | Jun 10, 2008 9:34:15 AM

Mr. Otis, Most of my points are hardly original. Indeed, if there is any originality in the law, it is from cobbling together the ideas of others. This isn’t art school.

My views on the military commissions have been largely advanced by others, and, in fact, adopted by the courts, Congress, and the military judges sitting on the commissions, themselves.

Somehow Zack can understand me. Somehow my colleagues can understand me. And, of course, courts can understand me, which is how I pay the rent. In real life, if you don’t understand, you either risk conceding the point, or you do your best to address what you think the argument is.

Yes, I will admit that I do use overstatement. However, you do, too. Your point seems to be that we need to disregard our laws and kill lots of people in order to preserve our way of life. And, you also seem to be arguing that we need to do so without allowing the electorate to pass on whether this is a good idea or not. To me, this is a very extreme position, but I think that we both agree that it isn’t a new one. (Heck, you provided examples of where you think that has happened in the past.) But, I seriously doubt that you are arguing that whenever democracy seems endangered the executive should have free reign to do whatever it says is in peoples’ best interests. Even a former AUSA in the Fourth Circuit wouldn’t go that far (heck, I am related to one and s/he has a slightly different view). But, I do acknowledge your argument: that in some cases our constitution might endanger American lives.

However, since I think your argument – devoid of nuance – is absurd and extreme, I disagree with it. Perhaps you thin that you are arguing to a lay audience. Perhaps you are trying to attract clients or a political appointment. Whatever the case, I seriously doubt that you would see things in such a categorical fashion. But, feel free to troll away.

My view on this matter is not as categorical as yours. My point is simply, in the first post of this thread, is that these commissions risk devolving into political acts. Senators McCcain and Graham had the same fears. You don’t see a problem with that. Judge Brownback saw those fears come to fruition. You didn’t respond to those objections. That is the entirety of our argument.

For me, this isn’t about “why” terrorists do what they do. I don’t care. This isn’t about whether the government was “behind” 911. (I don’t think it was.) Indeed, in the context of this argument, I am not even making a 6th amendment “jury trial” argument. (I am making a “public trial” argument, however, because I think that the American public SHOULD see what kind of people these are, and SHOULD judge for themselves what should be done about terrorism. Perhaps we will conclude that the terrorists are a bunch of loons that should be in the loony bin. Perhaps we will conclude that they are just common criminals. Perhaps we will conclude that the whole process is corrupt. I don’t know. Whatever the case, I believe the American people need to make these decisions in the sunshine.)

Now, Mr. Otis, since you are a lawyer, I am according you the proper amount of respect. Federalist isn’t a lawyer, so there is no need to really care. He didn’t address any of my points.

Posted by: S.cotus | Jun 10, 2008 10:03:26 AM

Bill:

You keep going back to the World War II comparison which is a perfect example of the Pentagon's often noted tendency to fight the last war. Despite historical evidence to the contrary which suggests that different situations require different tactics (the Union only won the Civil War when Generals Sherman and Grant abandoned the Napoleanic War tactics, same with Germany in the Franco-Prussian War - they did not follow the Napoleanic tactics and won a sweeping victory, but the German's Franco-Prussian war tactics failed misarably in 1914, etc.). The Pentagon has now attempted to refight World War II three times - the first time, it reached a stalemate in Korea - yes, South Korea was saved, but neither the U.S. nor Red China wanted to destroy themselves over North Korea so it went back to the status quo before North Korea invaded in 1949. The second time was Vietnam - clearly Vietnam should have shown the weakness of World War II tactics when dealing with an insurgency and what was essentially a guerilla army. Carpet bombing may work against cities (although of questionable legality under international law), but it didn't work against a hidden army in the jungle. World War II tactics of battling another army do not work when you are fighting in a place where friend and foe and neutral look the same.

However, the World War II comparision to the war on terror fails in a more fundamental way - then there was a battle between countries - the fighters wore uniforms, they fought under a chain of command, most citizens of each of the combative country supported their government (at least at the beginning of the war). Second of all, you are absolutely wrong that the Allies (as well as the Axis) did not However, the war on terror is not like that - the U.S. is not fighting a country. They are fighting an idea - the idea of terror and an ideological war - that of using terror and violence to achieve ends rather than peaceful political means. Thus, the War on Terror contains a fundamental aspect that it involves the fight for the hearts and minds of people. The invasion of Iraq turned into such a disaster for Americans because the Americans were not familiar with the Iraqi people - more study of history would have shown the danger of ethnic warfare. It would have avoided the simplistic view that people fighting the Americans are all Al Qeada terrorists - instead, people fighting the Americans are a mixture. There are vast differences within the Moslem world (and of course, terrorism is hardly specific to the Moslem world) - these need to be understood in order to keep the entire Moslem world from falling under the control of Islamic fundamentalists. Make no mistake - the War on Terror is a war against an ideology and a war for the hearts and minds of the rest of the world. Precedents from World War II for the treatment of agents of a foreign government who were undertaking a daring mission do not apply to this type of struggle. Treating the War on Terror as a war like World War II is the surest way to lose the War on Terror. It already has led to bad consequences in Afghanistan and Iraq. Fighting the conditions that allow fundamentalism to flourish around the world is much more likely to succed than fighting it as a military operation - killing one terrorist does no good if two terrorists arise to take his place.

Obviously, what the terrorists want is not acceptable as a world vision - however, in order to win, we do need to win the hearts and minds of people to reject the call of fundamentalism (and not just Moslem fundamentalism). Being a beacon of freedom and democracy is one way to do that.

Respectfully,

Zack

Posted by: Zack | Jun 10, 2008 12:25:27 PM

Skipped around and failed to complete a thought (maybe should preview before posting rather than reading after posting)

should read "you are absolutely wrong if you think that the Allies and Axis in World War II did not try to win the hearts and minds of the enemy during the war. Both sides invested much effort into propaganda and at the minimum trying to undermine the morale of the enemy (such as Tokyo Rose or Axis Sally to use the best known examples). Often military operations were done for the psychological factor - in fact, one of the great early successes for the Allies, the Battle of Britain was a success due to successful psychological operations - after German bombers bombed an English city, the English sent a few bombers to bomb Germany. The Germans then began the London Blitz and bombed London nightly - many military historians believe that had Germany not shifted to bombing London, they would have destroyed the RAF and been able to invade England. The Doolittle Raid on Tokyo is another classic example of a military operation solely designed for propaganda purposes - both to undermine Japanese morale and to raise American morale. It is well recorded that both sides in World War II used radio broadcasts, dropped leaflets, etc. to try to sway the hearts and minds of the enemy public. By and large, these operations were not overly successful, but don't discount the large amount of psy ops involved in World War II and don't discount that morale played a big role in the outcome.

Posted by: Zack | Jun 10, 2008 12:34:41 PM

Zack, Interesting points. Not being *much* of a military historian, I would need to brush up on Civil War stuff. I realized that earlier, in an effort to try and get Mr. Otis to actually discuss something legal for a change I conceded that “force defeated fascism.” Now I have some second thoughts.

We won WWII. Even though we all know that there were many psychological tactics used, the allies did have considerable firepower and soldiers. So, I will grant him that “force” defeated the axis. Did we defeat “fascism.” Not really. There were fascists post-WWII. There are fascists now. As you say, many fascists, like terrorists, didn’t decide to stop being “fascist” (and say, adopted some other ideology) just because we killed a lot of them. So, I don’t think that fascism was (or ever will be) defeated by some kind of war. Perhaps if the US and other countries are a beacon of freedom it will lose its appeal. After all, who wants to support some country with food shortages and no good music, when the American way of life has lots of food, entertainment, and the ability to spew whatever stupid political opinions you want.

Now, we have a “war” on terror. If we assume that “terror” is an ideology, I am not convinced that a “war” can defeat it. That would require identifying everyone that thinks that “terror” is a good idea and killing them. Neither the law of war (even as it applies to illegal combatants), nor the constitution provide for killing people based on thought crimes. Not even the administration claims this. Instead, we look to overt acts. Unlike detention of soldiers on the battlefield until the end of a conflict, punishing “terror” (which I guess refers to the acts of illegal combatants) requires the actions of individuals be identified retrospectively. This process is somewhat cumbersome, because not only does it require presentation and analysis of evidence, but it also requires that the detaining authority somehow demonstrate that it is morally superior than the detained. So as to show that its proceedings are not just show-trials, but are actually analysis of prior acts. The US has usually been pretty good about this. But, Mr. Otis, seems to argue that we should jettison this tradition in favor of making terror punishments a political act, which is exactly what the terrorists want.

I might disagree with you a bit, Zack, about wanting to win “hearts and minds” and understand exactly where all this anger is coming from. I don’t really think we can do this in the context of a war. It takes generations to win peoples’ hearts and minds. However, I think that the American people do need to see what kind of person would become a terrorist.

Posted by: S.cotus | Jun 10, 2008 1:03:17 PM

"Despite historical evidence to the contrary which suggests that different situations require different tactics (the Union only won the Civil War when Generals Sherman and Grant abandoned the Napoleanic War tactics, same with Germany in the Franco-Prussian War - they did not follow the Napoleanic tactics and won a sweeping victory, but the German's Franco-Prussian war tactics failed misarably in 1914, etc.). The Pentagon has now attempted to refight World War II three times - the first time, it reached a stalemate in Korea - yes, South Korea was saved, but neither the U.S. nor Red China wanted to destroy themselves over North Korea so it went back to the status quo before North Korea invaded in 1949. The second time was Vietnam - clearly Vietnam should have shown the weakness of World War II tactics when dealing with an insurgency and what was essentially a guerilla army. Carpet bombing may work against cities (although of questionable legality under international law), but it didn't work against a hidden army in the jungle. World War II tactics of battling another army do not work when you are fighting in a place where friend and foe and neutral look the same."

Gee whiz, Zack is a military historian. Different situations require different tactics, who woulda thunk it? Of course, Zack's crass errors give away his lack of knowledge:

1) "The German's Franco-Prussian war tactics failed misarably in 1914, etc." Not really. The German war machine in 1914 inflicted disastrous defeats on the Russians in 1914. In addition, in France, while the Germans lost the Battle of the Marne, the Germans inflicted massive losses on the Allies during 1914, e.g., the French 5th Army in the Battle of the Frontiers and ensconced themselves on a significant portion of France. Moreover, the Germans' failure in 1914 was not due to "fighting the last war", it was more the result of not adhering to the plan. Things could have very very easily gone differently for the Germans in 1914. Just think if they had decided to have only one Army in Alsace-Lorraine . . . . (of course, that's what happened during the race to the sea, where the German Seventh Army was moved to France).

2) "the first time, it reached a stalemate in Korea - yes, South Korea was saved, but neither the U.S. nor Red China wanted to destroy themselves over North Korea so it went back to the status quo before North Korea invaded in 1949".

Uh, North Korea invaded South Korea in 1950, not 1949. Second, the parties most certainly did not return to the status quo, but rather an armistice line. The 38th parallel no longer divides the Koreas. It's also doubtful that the US was in serious danger of destroying itself. In fact, Ike threatened the Chinese with offensives in 1954 to get them to the table.

3) "The second time was Vietnam - clearly Vietnam should have shown the weakness of World War II tactics when dealing with an insurgency and what was essentially a guerilla army. Carpet bombing may work against cities (although of questionable legality under international law), but it didn't work against a hidden army in the jungle. World War II tactics of battling another army do not work when you are fighting in a place where friend and foe and neutral look the same."

Carpet bombing sure worked at Khe Sanh. And we were fighting more than an "insurgency". NVA regulars did a lot of fighting. But it's a little unfair, I think, to think of the US as strictly refighting WWII in Vietnam. You sell our guys far too short. And, it would have been interesting to see what would have happened had the US fully committed to Vietnamization.

4) "The invasion of Iraq turned into such a disaster for Americans because the Americans were not familiar with the Iraqi people - more study of history would have shown the danger of ethnic warfare."

A "disaster"? Hmmm. We're still there. Second, I think it beyond silly to argue that we didn't know Iraq. Everyone with half a brain knew that the country has serious structural issues--given the Sunnis, Shia and Kurds. The military guys knew, that's for sure. By the way, things may be bad for us in Iraq, but they clearly are pretty bad for Islamic terrorists.

5) I saved this one for last. The German (or more accurately, the Prussian) experience prior to the Franco-Prussian War was not Napoleonic. Remember, the Germans fought two wars immediately prior to the Franco-Prussian war, one in 1864 against Denmark, and the second against the Austrian Empire in 1866. Besides that, advances in technology, as everyone knew, made Napoleonic War tactics suicidal. Moreover, one Napoleonic thing most certainly did stick around until Korea, namely national mobilization. Additionally, the Germans did keep some of their innovations resulting from their asses getting kicked by Napoleon, namely a General Staff and a professionalization of the military in general. The latter paid huge dividends for Germany in WWI, as reservists were able to take front line positions in the beginning of the war, much to the surprise of the French.

It's trite to say that people (or winners) always fight the last war. Military history is far more complicated, and people are not automatons.

Posted by: federalist | Jun 10, 2008 2:51:23 PM

What's the matter, Zack, cat got your tongue?

Posted by: federalist | Jun 11, 2008 2:51:47 PM

Federalist, as a practicing attorney, I actually have more important things to do that respond immediately to a message board post.

As for your points - you missed the point on the Franco-Prussian War example - the Prussians more than any other country studied the examples of the Crimean and American Civil Wars which indicated that Napeleonic tactics were no longer viable given advances in technology. France, of course, stuck with the Napeleonic tactics. Yes, you are right that Germany did not follow their plan in 1914 - they wanted to conquer France and England first before invading Russia - they failed to do so got involved in the two front war they absolutely did not want (one rule in military history that I am sure we can agree on is that you absolutely never under any circumstances should invade Russia - also interesting that Germany repeated this same mistake in 1940/1941). Yes Germany didn't stick with their plan, but their plan probably wasn't viable in the first place.

As far as the Iraq war - I could spend all day listing quotes from the Bush administration talking about how easy it would be or how the invasion would finance itself through oil money or how Americans have been greeted as liberators. It is almost impossible to look at the Bush Administrations handling of the war and not reach the conclusion that they were incompetent and made no plans at all for postwar Iraq. Add in that the Bush Administration apparently cannot tell the difference between a secluarist regime like Sadaam Hussein's and Islamic Fundamentalists like Osama Bin Ladin (whose support mainly comes from Saudi Arabia and Yemen).

I did take some military history classes in college - but I might be rusty. Still, you seem to be conceeding my main point that Bill's (and the Bush Administration's) constant comparisions to this situation to World War II are absurd. You also seem to be conceeding the importance of psy ops and working to sway the minds of the Islamic world. But hey, if you feel better going after minor errors of someone going on decade old memory, I'm not going to stop you.

Posted by: Zack | Jun 11, 2008 6:24:46 PM

I just went after the errors because your military history post was pretty silly, and I didn't feel like explaining why in painstaking detail to you. I too have demands on my time.

Your riposte has problems of its own. First of all, you wrote that Prussia abandoned Napoleonic tactics during the Franco-Prussian War. My point was that Prussia had abandoned them beforehand. What your later post indicates is that you meant that France had clung to the old ways while Prussia had not. That's probably an overly simplistic view of the Franco-Prussian War and the reason for France's defeat. But we don't need to get into that--I didn't miss the point--you simply linked a situation where certain tactics were abandoned during a particular war with a situation where they were abandoned long before the particular war). And I was pointing that out.

Second of all, your post is a bit curious. You state that Germany repeated the mistake of invading Russia in 1941. But it's hard to argue that Germany's invasion of Russia in WWI was a mistake--given the Treaty of Brest-Litovsk. Moreover, the plan to which I was referring, and of which you seem ignorant, was the Schliefflen Plan--which had nothing to do with "conquering" England, as you mention in your post. The deviations from the Schliefflen Plan were two--(a) von Moltke diverted 3 army corps (unnecessarily as it turned out) from the Western Front to the East to deal with a quicker than anticipated Russian invasion and (b) von Moltke went for more of a double envelopment than a single envelopment in executing the invasion of France. Had von Moltke put the German Seventh Army "on the right wing", the outcome of the Battle of the Marne could have been a lot different. German plans for the opening of WWI can certainly be criticized, but it's very hard to argue that they were not viable. They certainly were far better than the French plans, as the French came very close to being defeated, and they were far better than Russian plans, as the Russians suffered staggering defeats in E. Prussia in 1914, most notably, the Battle of Tannenberg.

With respect to the Iraq War, there is little doubt that from 2004-2007, there were serious problems with the prosecution of the war. Things appear to be looking up now.

I am not conceding anything. The current war does have parallels to WWII, namely the implacability and evil of the foe. With respect to winning the minds of the Islamic world, well, I do agree that our efforts are woefully inadequate--we should be touting democracy and the rule of law. We should be denouncing anti-Jewish hatred. Etc. Etc.

Get the basics right first, Zack.

Posted by: federalist | Jun 11, 2008 7:50:59 PM

Your arrogance is unbecoming. Of course, I learned about the Shefflin Plan and I do know about it (as I said I read this stuff a decade ago and was going by memory - so my memory is a bit rusty, so what?). You are simply throwing out red herrings which distract from the main points. So you can spout more trivia about World War I than I can - congratulations. What does that say about whether it makes any sense to do as S COTUS pointed out exactly what the terrorists want us to do by executing them? Absolutely nothing.

Anyway, comparing the terrorists to the Nazis is cheap and misleading. You can do better than that federalist.

Posted by: Zack | Jun 12, 2008 10:51:52 AM

Zack, it shows that fundamentally you were talking out of your ass. And I don't think it arrogant to point that out. You were using what you deemed to be historical fact and applying lessons from that fact. But the facts just were not so. And you excoriate political leaders for not knowing history, yet you show extreme ignorance of basic historical fact (not trivia).

For example, you write, "Yes Germany didn't stick with their plan, but their plan probably wasn't viable in the first place." Was that a lame attempt to salvage your laughable description of Germany's 1914 efforts as disastrous and to attribute German failures to refighting the Franco-Prussian War? Or was that simply talking out of your ass? Hard to tell--but Germany came uncomfortably close to victory over France in 1914.

As for S.cotus' silly point--first of all, he could be mistaking bravado for what the terrorists want, second, who cares what they want? If KSM rots in an American prison, he becomes an issue for the foreseeable future. See, e.g., Samir Kuntar. If he is executed, he no longer is a problem.

Posted by: federalist | Jun 12, 2008 1:25:37 PM

Federalist - I am sorry that you feel so insecure that you feel the need to prove that you know more than others and insult those who disagree with you. Maybe you consider it rational debating to ignore people's points, attack irrelevant issues, through out red herrings, and insult people who dare to disagree with you and actually unlike you support their arguments using actual evidence, but I don't. I'm through attempting to engage you in conversation because it is simply impossible to have a rational conversation with you.

Posted by: Zack | Jun 12, 2008 5:18:50 PM

Interesting your view of a "rational" conversation. Usually people who use historical references know what they're talking about--you do not. What, pray tell, was the basis of your statement that "Germany didn't stick with their plan, but their plan probably wasn't viable in the first place"?

I don't see how pointing out gross historical errors is a "red herring". Face it, Zack, you came in, spouted some pseudo-intellectual horse manure and got called out on it. I'm sorry you think I'm insecure or otherwise.

It's amazing how a "conversation" with you goes from pillar to post. For the most part, all Bill was pointing out was that we dealt with our enemies very harshly in WWII--he believes that's a good idea today. That's hardly comparing the terrorists to Nazis.

Funny how you complain about me not addressing your points--yet ignore my take on S.cotus' point about doing what the terrorists say they want.

Posted by: federalist | Jun 12, 2008 5:44:37 PM

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