I tend not to criticize or praise Obama because I don’t want this blog to be political. By political I mean Republican vs Democrat or conservative vs progressive; libertarian vs liberal, etc. There are many other sites out there to whet your appetite if you are into political wrangling. I’ve gingerly stepped into this area close to the political realm because of the Marathon Terrorist Attack (MTA) which involved some aspects of this blog especially as it relates to the FBI plus the obvious: that it was an attack on my city. I felt I could not ignore the enormity of it.
I’m anxious to get back to Whitey since things have happened that I’ve let that slide. I’m especially disappointed I did not get to the last hearing where Whitey himself sans-beard showed up. I hadn’t thought much would happen between now and the opening bell in early June so I hit the road for a bit. I appreciate the continuing comments and interest out there. But before going back, I have to talk about this one big mistake by Obama.
The Boston Globe talked about it in a round about way yesterday telling how Obama heard Dzhokhar Tsarnaev, who I call Joker which is the way his first name is pronounced by those with a Boston accent, was captured and how he was briefed by 45-year-old Lisa Monaco, Obama’s homeland security and counter terrorism advisor, who “also is now responsible for helping determine the targets of drone attacks.”
Obama also got advise from 42-year-old White House counsel Kathryn Ruemmler on giving Joker his Miranda rights and helped Obama “conclude that [prosecuting Joker as an enemy combatant before a military tribunal] wasn’t an option because [Joker] is a naturalized U.S. citizen entitled to a federal trial.” Monaco and Ruemmler are long time friends having worked together early in their legal careers as prosecutors in the Department of Justice.
I found it odd that the person who picks targets for the droneliminations and her buddy believe because a terrorist is an American citizen he can’t be treated as an enemy combatant.
You’ve heard of Anwar al-Awlaki and Samir Khan. Both were active in Al Qaeda and preaching against and urging others to attack the US. On September 30, 2011 these two American citizens were dronelimated. Then two weeks later the 16 year old son of Anwar, another American citizen got the same treatment. It is said that on the Obama Hit List, this is a secret list that contains the names of people we want to droneliminate, there are other American citizens.
How then can the president with Lisa Monaco’s assistance order American citizens be killed but he can’t send them off to Guantanamo for a military commission trial? Why is an American citizen who actually killed Americans with a terrorist device entitled to more benefits than American citizens who preached violence against America? Assuming Joker rather than hijacking the car and ending up hiding in the boat had thought ahead and purchased air plane tickets to go back to Chechnya or to Yemen, where al-Awlaki was killed. Wouldn’t Obama have put him at the top of the Hit List?
It is odd that we can have a secret meeting by Administration people where American citizens are determined to be worthy of being killed but are not allowed to have similarly situated people unable to be tried openly by military commission. It is this confusion and lack of certitude that will be dangerous to America.
The 9/11 attacks came because our prior posture toward the Muslim terrorists was ambiguous and confused. It went back to the time of Jimmy Carter when the American Ambassador was kidnapped and murdered in Afghanistan and we did nothing. After that the Afghan government and Russians conspired for a Russian takeover which lasted until near the collapse of the Soviet Empire in 1989. The Muslims during that time appreciated the help we gave them in Afghanistan but pushed back in other areas. Under Reagan when we had our Marines blown up in Lebanon and our response was to flee. We were attacked in other areas such as a German night club and TWA flight in 1986, Pan American bombing in 1988. The attacks continued into the 1990s at our embassies and even in the homeland with the first bombing of the World Trade Center in 1993. Our response to all this was best described as feeble. In some instances we brought the terrorists into federal court and tried them.
9/11 woke us up. We got serious and invaded two countries and put 1% of our country on a military footing and sent a clear message to terrorists that until this war is over if we think you have evil intents against America off to Guantanamo you go. The innocent and guilty were sent there and many of such will never leave. Our message was a strong one. We will not tolerate terrorist attacks on America.
We had none since 9/11. Now that we have had another one our message has again become muddied. We’re back to cuddling them in the federal court system. The Joker case will end up costing Boston many millions, will shut down parts of the city, will turn it into an armed camp and somewhat of a circus if the Joker gets the right lawyers and agrees to push this which my guess is he will (unless he is really afraid of the death penalty like Martorano and Flemmi who liked to kill people but whose legs shook like palm branches in a hurricane at the thought of their own demise).
Obama will be seen by our enemies as irresolute and weak. Up to this point they wondered. It’s too bad he and his advisers have forgotten what history has taught us.
Matt, someone else said this: “Just because the Joker says “we acted alone” proves Zilch regarding his “enemy combatant” status!” If X (trained in Chechnya Russia Kyrgistan) recruits little old Mrs. Murphy to help kill Americans, Mrs. Murphy of Chicago has become an Enemy Combatant. Please don’t give credence to or taut the erudition of these stumblebums in the Feds who can’t protect us at home in Boston even when the Radicals are waving Red Flags in our faces. How many more Bostonians must die?
Matt: I don’t distnq men or women; I write in the “neuter” gender; I live, however, in the real biological world where as the French say, “Guys and Gals are as different as night and day; Viva la Difference!”
Matt: I don’t want to sound profane, but our dear lifelong friend and BC grad who was an adviser to liberal democrats/unions and a nationally renown expert on Elections Laws, Billy McDermott from Savin Hill, father of two, grandfather of half-dozen, was recently accidentally hit by a car and killed crossing Day Boulevard going into the L-Street Gym. This was definitely an accident. We all know that. It was a dark, heavily raining night (8:00P.M in about March 1)and Billy was running back to the L to get his wallet which he forgot he left in his locker. Congressman Steve Lynch, Bob Quinn and many other elected officials were at the Funeral mass. But if Billy were not as squeeky clean as you get, then maybe there’s someone sitting in Washington D.C. advising that certain far left or far right people with influence, power or money, American citizens, have to be “droned” for “national security.” Worse has happened historically in other countries. We’ve seen how Wyshak has abused his power and flouted the Constitution. Now we’ve got two 40 year old bimbos (or bozos) secretly saying who among us will live and die! Whatever happened to the America we grew up in?
Bill:
It is not my intent to suggest that the women who advise Obama are other than competent individuals. I have not looked into their qualifications and as to their sex I certainly do not find that a factor in them making those decisions, I’d be equally concerned if they were men. The gist of my remarks was to show that these people who make decisions to eliminate Americans by done attacks have used the idea of a person being an American to refuse to designate him an enemy combatant. Had they said Joker did not fit the definition of enemy combatant as Jay argues that would be one thing; but to suggest just because he is a citizen he can’t be treated as an enemy combatant but can be eliminated by drone makes little sense.
Matt, I wonder whether these two death-dealing drone witches (deliberately using some dark-metaphors) are counseling Obama to take out Polish-Americans living in Chicago (let’s say) because they might be remotely related to Narco-Terrorism. Instead of death-by-drone in Yemen, why not arrange an “accidental” head on collision with a Mac Truck on Lakeshore Drive in Chicago? Wouldn’t this be a nice way to dispose of political enemies: Have the billionaire head of a Polish-American shipping/railroad operation with some remote links to drugs (ala the Caswell Hotel) who just happens to also be, let’s say, a devout conservative Black Muslim (Half-Afro-American; half Polish)eliminated for “national security” reasons. Seems to me when you start assassinating AMerican citizens, there’s no stopping it. Brother Andy suggested the best approach to the Joker and anyone else connected with the MTA: Revoke their citizenship: they obviously falsely swore to become Americans;in fact, they’d already sworn, not allegiance to the Constitution and American way of life, but alienation from it;they’d already sworn to become domestic/foreign enemies of the Constitution.
Bill:
The tactic of crashing dump trucks into opponents was developed in Ukraine. It was a quite effective way to quiet dissent. I think you are onto things when you suggest that the idea a Star Chamber type group can decide which American citizens live or die can quickly be expanded. Suppose the war on drugs would justify what the war on terror allows us to do? Good thing that during LBJ’s war on poverty we didn’t have drones so that we could eliminate the poor folk which could have made the war a total triumph.
I thought this blog was about Whitey, not Barack.
Savoia:
I stand corrected. Sometimes things get in the way. The Marathon Terrorist Attack threw me off course as it did many other life long Bostonians. I’ll try to leave the president alone. I do like the guy but sometimes he wants to please too much.
When people “Zoom OUT” on this case and Whitey, et al, it’s fascinating to see how close our world really is connected, politics aside. So let me see if I have the raw basics:
Obama is connected to Buffett,
Buffett is connected to IBM,
IBM is connected to Wheeler,
Wheeler is connected to Bulger,
A Buffett board member (or former board member) is connected to Mr. John Connolly
IBM is also connected to the Galleon Group/DiMasi with 2011 (again) being a key year there too.
Wyshak is all over Whitey,
Wolf was involved with Whitey et al.
Wolf was involved with DiMasi and
Wyshak is now also involving DiMasi in the Probation scandal…
and on and on it goes.
AleX:
Interesting post. Isn’t that like the idea that everyone is connected by within six degrees of separation. I knew this guy Isneal who could prove that BC was the top football team in America even with a 5 and 7 record. I didn’t know Wyshak connected DiMasi (poor Sal is dying in prison – no one seems to care – I knew him from a couple of case he handled as a defense lawyer and meeting him in the corridors of the State House where he always was friendly – always had a soft spot for him and felt bad when he got jammed in). I’ll have to look into that. Thanks.
Much closer than six degrees in this case…with some fascinating “common denominators” between them.
Adding to the layers, with respect to Mr. DiMasi (and I agree with your take on it – he should have been able to get better care than he did instead of being transported here there and everywhere and then up to testify on the patronage scandal at the probation department too) – let’s not forget that the businessmen in the “scandal” got off scot-free. Anyone from Cognos doin’ anytime?
Cognos which was involved in the scandal got contracts for the “State Board of Education” and for the “State Information Technology Division.” BUT, IBM took over Cognos shortly thereafter. IBM,(now Warren Buffett’s company don’t forget) has unprecedented “Access” to all that information. Warren Buffett’s “Gates” foundation just paid for the Common Core which is being rolled out by, ya – you guessed it – the State Board of Education. (We’ve already talked about the Common Core a bit and its fraudulent game-plan.)
On top of it all, Buffett’s IBM (through Cognos) has a deal with the State Information Technology Division. If I am not mistaken the State Information Tech division houses or works in close cooperation with the Department of Revenue. As such now Mr. Buffett (through IBM) just may have access to all that “private, sensitive taxpayer information” – yours, your neighbors, Mr. Wolf’s, Mr. and Mrs. John Kerry Heinz’, etc. all for his benefit – and the FBI’s since IBM has some sort of “deal” with them and Buffett clearly has some kind of “immunity” for some reason?
Alex:
There’s an old Sicilian saying: “Everyone has her price.” Sometimes its money, other times its the head of a horse on your pillow. Buffet has enough money, or people willing to do him favors, that he does not need all the front outfits to get any information he wants. There must be many IRS officials who would be honored to do Mr. Buffet a good deed for the proper recompense.
“Obama will be seen by our enemies as irresolute and weak. Up to this point they wondered. It’s too bad he and his advisers have forgotten what history has taught us.”
Well-stated summary of Obama’s response to the Joker affair, but I’m not sure our enemies were wondering before the Joker attack. You could say this is a nice summary of his “leading from behind” foreign policy in general, and that our enemies have long since taken notice.
But in the interest of not getting political, I’ll leave it that.
Jon:
One of the problems with our criminal justice system is the delays. We don’t send out a clear message. The punishment comes many months if not years after the criminal act. Therefore the criminal is confused and while waiting (usually on bail) he gets involved in other crimes. Studies have shown (I used to read them) that a swift and appropriate response to a criminal act was best in teaching the criminal the adverse consequences of crime.
The same thing applies to a nation. It’s enemies have to know what to expect. Jay wrote and made a good point that I have to consider that the Tsarnaevs were not “enemy combatants.” My gut tells me their actions committed as part of their belief that American should be attacked because of its war against Muslims makes them enemy combatants but I have to answer Jay before I go on. Thanks for your post.
Dear Matt,
You raise an insightful point which continues to be aired in the news media: whether Tsarnaev should be designated as an enemy combatant, or not. I believe that our answer rests within the definition of “enemy combatant itself.” I find sound guidance in this document from the Council on Foreign Relations, which touts identifies among its members our current Secretary of Defense, Chuck Hagel. There, we find the following description:
“An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” Memorandum from William J. Hynes, General Secretary of the Department of Defense, Council on Foreign Relations, December 12, 2002. Retrieved from http://www.cfr.org/international-law/enemy-combatants/p5312.
Matt, I believe that therein lies the answer to the question posed. Let us recall recent revelations, following the 48-hour “public safety” interrogation, in which Tsarnaev apparently asserted that “he and his brother acted alone” and were “motivated by religion.” See Margaret Hartmann, “Tsarnaev Says He and His Brother Acted Alone, Were Motivated By Religion,” NEW YORK MAGAZINE, April 22, 2013. Retrieved from http://nymag.com/daily/intelligencer/2013/04/tsarnaev-says-he-and-his-brother-acted-alone.html. Given that the definition of “enemy combatant” inherently requires that actors “associate themselves with the military arm of the enemy government…” and given here that Tsarnaev has asserted he and his brother acted alone, this requirement for “enemy combatant” status is not fulfilled. To do so, would result in an unconstitutional expansion of the definition of “enemy combatant,” contrary to U.S. Supreme Court precedent, and perhaps advance the oft-invoked doomsday scenarios depicted in discussions here about encroachment of the Government into the lives of private citizens, and infringement of constitutional rights — such as even the right to assemble freely derived from the First Amendment and as applied to the States through the Equal Protection Clause of the Fourteenth Amendment.
That, I believe, is why the question of whether these two brothers acted alone or in concert with other, foreign forces, such as the Chechen separatist forces, or the “Caucus Emirate,” was so decisive. I believe that charging Tsarnaev as an enemy combatant would have resulted in a much lengthier and expensive legal battle, the erosion of rights for other citizens by establishing new, dangerous precedents, and even endangering the ability of justice to be served in trying and convicting Tsarnaev for his role in the Marathon Terrorist Attack (MTA).
In the points you rightly make in support of your argument, the named parties were all associates of Al Quaeda and working in concert with a terrorist organization, formerly harbored by the foreign government in Afghanistan under the Taliban. If the Tsarnaevs acted alone, of their own volition, and not in concert with an enemy government or a terorist organization, there does not appear to be any sound constitutional basis for which Tsarnaev could be designated as an enemy combatant, as much as Boston residents may wish for that to be the case, and for this suspect to be as far away from Boston as possible. However, going back to your own successful career as a prosecutor, how many cases did you have in which evidence was seized but was found to have been unconstitutionally seized due to a lack of probably cause, for example, or a defective search warrant, thereby resulting in the exclusion of all fruits of this illegal search? While the offender may have been guilty no doubt, the Constitution remains then and now, the supreme law of the land. As we are learning throughout these discussions, sometimes that fact can be bittersweet.
Thank you for raising this well-reasoned question, and for prompting me to ponder.
Sincerely,
Jay
Jay:
Excellent post and great rebuttal of my argument. I’ll need time to consider it and get back to you. Right now time is pressing on me. So bear with me and I’ll respond with either a white flag or move forward.
Jay:
Can’t raise the white flag yet!
Always remember the law is what the judges say it is. It is variable and changeable depending on the times and sometimes on whether a judge had an argument with the spouse just before leaving for court. Lawyers are worse than judges because they can argue for point A today and against it tomorrow. It is into that bag of confusion we are attempting to decide the issue before us. I argued that just because a person is a US citizen, which was the reason given for not treating Joker as an enemy combatant, is not a basis for making that determination. You suggest there is no evidence Joker is an enemy combatant referring to the Quirin case where the Supreme Court discussed enemy combatant.
I like to deal with simple basics. As to the citizenship issue my point is that if you can kill American citizens with drones who support our enemy then you certainly can put them before a military tribune. Look at this another way: suppose the president got information that the Tsarnaevs had stolen an airplane at Norwood Airport that was filled with explosives and intended to crash into the spectators at the Boston Marathon. Do you think it would be important for the president to find out whether they were citizens or not prior to taking any action against them? Obviously not. He’d get one of our F-22 Raptors or F-35s and shoot them down.
Or if the Boston police knew the Tsarnaevs were on the way to the Marathon to set up bombs and the only way they could stop them was to shoot them, then the issue of citizenship would not matter. Why then should it matter after the incident? Or in the Tsarnaevs case would we have treated the brothers differently if both survived since one was a citizen and the other wasn’t.
My post was about the disparity in results and the muddled message. I think Obama is mistaken in sending a mixed message that some enemy combatants will be treated differently than others.
You then suggest that there’s another way to approach this saying you can’t call someone an “enemy combatant” unless you have a definition for those words. I agree.
You then go back to another time in our history, WWII. You refer to the Quirin case which came down during that time when we were at war with German, Italy, Japan and some others. That decision states enemy combatants are: “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” You then suggest: “Given that the definition of “enemy combatant” inherently requires that actors “associate themselves with the military arm of the enemy government.”
I agree if we are in a war with nations. But I suggest that definition does not apply in this situation of a non-nation war. There is no “military arm” nor is there an “enemy government”, as in the concept of a government of a sovereign state. I suggest the appropriate definition for today’s war would be “Citizens who associate themselves with the goals of our enemy and are bent on hostile acts as enemy belligerents within the meaning of the Hague Convention and the law of war.”
Thus we have to decide who is our enemy. Who are we fighting against?
For that purpose I have to go back to 3 days after 9/11. Congress passed the “Authorization for Use of Military Force Against Terrorists” (AUMF). In the preamble to this authorization Congress stated: “whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” It went on to specifically authorize the use of force against those who “planned, authorized, committed or aided” the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States.”
By now we can probably figure that those who “planned authorized, committed or aided” the 9/11 attacks have pretty much been taken care of. But we know the war has not stopped. To prevent future acts of international terrorism means we do not just stop at those pre-9/11 groups but follow through by defending ourselves against their progeny and those motivated by their philosophy and aim to murder Americans.
Based on the AUMF I’d suggest that the enemy in the War on Terror (WOT) is “international terrorism” which is related to the ideology of the people who attacked us on 9/11. The authorization is very broad
because its aim was to prevent future attacks on the US. It also as noted it is within the president’s authority even outside the AUMF to “deter and prevent” such acts.
Therefore, the WOT is against international terrorism embodied by those people who adhere to the radical Muslim philosophy of Osama bin Laden involving a Jihad or war against the US as exemplified by al Qaeda and other Muslim fundamentalist groups. It is clear to me that the acts of the Tsarnaevs, whether they were connected with other groups or not, which has not been determined at this point, and for which we should not rely upon the word of the surviving terrorist, were acts designed to aid and advance the cause of radical Muslim groups, our enemies. Therefore in my book they are enemy combatants and belong in Guantanamo.
I’m aware that in a war nice things are not done as we’ve seen in WWII in the bombings of cities in Germany and Japan and similarly in Vietnam. In those wars the action took place on foreign soil and there an enemy combatant was gunned down or captured, if lucky. I like to view the WOT as a worldwide battlefield as we have seen it play out with attacks on us on our homeland and attempted attacks on our airplanes such as with the underwear and shoe bombers. I don’t see any infringement on our civil liberties or freedom from properly identifying an enemy combatant and treating her as such. Your point that the WOT can be used to infringe on our liberties is correct but it need not. I see that as a different issue than identifying an enemy combatant, it is an issue of abusing authority against people who are clearly not enemy combatants.
I disagree with you as to the legal battle that would be involved if Joker was deemed an enemy combatant. Enemy combatants have little rights other than receiving three hots and a cot. That we decide to extend some minimal trial rights to them before executing them is all that is required Constitutionally. Under the military trials it is easier to admit evidence than a federal trial, although I must admit seeing the evidence that gets in federally like quadruple hearsay astonishes me. I never had that option as a prosecutor. By the way, I never lost a case for lack of probable cause or defective search warrants when I oversaw the investigation. It was always easy to do it right without shortcuts. Never had a problem with the exclusionary rule or keeping out evidence because of Miranda. No prosecutor should. But again, I never prosecuted enemy combatants.
Remember it is not a government we are at war with but a philosophy and those who believe it and wish to use it to justify the slaughter of Americans as Khalid does who posts here. It’s a brand new paradigm and I’m of the mind that our enemy on the battlefield deserves as much consideration as the Marines gave the Japanese, and Japanese gave the Marines, on the islands of the Pacific during WWII.
Dear Matt,
Thank you for the well-reasoned argument which captures the force and power of any winning closing courtroom argument.
While your reference to the 2001 Authorization for the Use of Military Force Against Terrorists is wholly on point, the National Defense Reauthorization Act of 2012 expressly clarified the definition of “enemy combatant” in noting that while U.S. soil is validly considered to be “battleground” in the War on Terror (WOT), that nevertheless to qualify as a covered person and be eligible for an indeterminate period of military detention, the following must apply:
1) A person who planned, authorized, coordinated, or aided the September 11, 2001 terrorist attacks, or harbored those who planned those attacks. 2) A person who was part or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” See Jennifer K. Elsea and Michael John Garcia, The National Defense Authorization Act for FY 2012: Detainee Matters, Congressional Research Service, December 11, 2012 at p. 15. Retrieved from http://www.fas.org/sgp/crs/natsec/R42337.pdf. While your statutory interpretation offers a valid argument, we cannot overlook subsequent statutory enactments as well, some of which clarify and expand the original intent of Congress when it enacted all provisions of the AUMF, including the provisions you highlight from the preamble language there. As you point out, congressional intent is the guiding light of statutory interpretation; it is one, as you undoubtedly are well aware, which the U.S. Supreme Court turns to first for guidance in issuing its decisions, assuming that the intent is not unconstitutional in nature, i.e. bearing an invidious intent on the basis of race, religion, or sex for example.
That is why it’s important also to draw the distinction between Al Qaeda and Taliban as terrorist groups and to avoid referring to these as espousing a “radical Muslim philosophy” and being “Muslim fundamentalists.” I have been struck by recent postings on social media which create a frame of reference; would we refer to the Ku Klux KLan as a “radical Christian fundamentalist” group, or the Westboro Baptist Church (WBC) for that matter which has praised the Marathon bombings and deaths of American soldiers as representing the hand of God punishing America and Massachusetts for supporting gay rights and abortion?
Would we dare refer to WBC as being any brand of Christianity, radical, fundamentalist, or not? That is why, rather than targeting any strain of Islam, the language which specifies the meaning of enemy combatant, enemy belligerent, or covered person eligible for permanent detainee status, requires some form of association with Al Qaeda, the Taliban, or associated groups. The Caucus Emirate has been designated an associate of Al Qaeda, and if it can be proved that Tsarnaev was, indeed, associated in some way with the Caucus Emirate, then perhaps the legal requirements which Congress enacted into positive law in the National Defense Reauthorization Act could be fulfilled.
The news media has also discussed this issue as well and come to similar conclusions, for similar reasons. See Greg Sargent, Americans Don’t Believe in Shredding Constitution to Fight Terror, Wash. Post, April 22, 2013. Retrieved from http://www.washingtonpost.com/blogs/plum-line/wp/2013/04/22/americans-dont-believe-in-shredding-constitution-to-fight-terror/
However, in support of your point that President Obama applies inconsistent reasoning in his treatment of enemy combatants, and whether one is a citizen or not, I share that Obama did expressly stated that he “would ‘not authorize the indefinite military detention without trial of American citizens.'” See Jennifer K. Elsea and Michael John Garcia, The National Defense Authorization Act for FY 2012: Detainee Matters, Congressional Research Service, December 11, 2012 at p. 2. Retrieved from http://www.fas.org/sgp/crs/natsec/R42337.pdf.
Accordingly, Matt, I think that goes to YOUR point; my point is, and always has been, that the statutory requirements for “enemy combatant” are not met as of now, in the case of Tsarnaev. For a definition, I initially relied upon a 2002 Department of Defense Memorandum which referred to SCOTUS precedent from 1942 which invoked the Hague Convention and the laws of war. I have presented the direct text of positive law in which Congress express declares its intent for who should be covered under the definition of enemy combatant. Yet, your point goes further here, in which even assuming the definition for enemy combatant WAS fully met, President Obama has expressly stated that, because Tsarnaev is an American citizen, he would not hold him as a detainee and would afford him the right to trial solely on account of him being an American citizen.
In short, I concede that, based on this information and other statements from the Obama administration about the utilization of ad hoc waivers for individuals who would otherwise be required to be held as enemy combatants, I understand the criticisms you make of President Obama. What I present is a threshold question; what you present is, in essence, even if that threshold were met, Obama would still not confer enemy combatant status solely on the basis of Tsaenaev’s American citizenship.
In that vein, Matt, I believe that we may find harmony and congruence in our separate points. I also commend you for further details which have trickled in here about your distinguished service record as a prosecutor. It is quite a contrast to the strong of mishaps in New Orleans Parish under the past tenure of Harry Connick, Sr., for example.
Sincerely,
Jay
Jay:
Thanks for all the cogent information. You are obviously more on top of this information than I am. You rightly note that the National Defense Reauthorization Act of 2012 must be considered when dealing with the AUMF which I failed to do. In that act we learn who Congress meant by the term “enemy combatant” or a person covered by the AUMF who is eligible for indefinite detention.
You set out the definition we are faced with: “1) A person who planned, authorized, coordinated, or aided the September 11, 2001 terrorist attacks, or harbored those who planned those attacks. (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces”
#1 does not apply nor does it seem to apply to most of the people who we now consider our enemies except perhaps a few like Mullah Omar.
#2 defines a covered person as “a person who . . . substantially supported . .. forces [associated with al-Qaeda or the Taliban] that are engaged in hostilities against the United States . . . including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy force.”
Clearly Joker has committed a belligerent act.The question then is whether that act has aided an enemy force, that is al-Qaeda or the Taliban or a force that is associated with them.
Nothing in the legislation requires Tamerlan or Joker to have joined those forces. You suggest: “the language which specifies the meaning of enemy combatant, enemy belligerent, or covered person eligible for permanent detainee status, requires some form of association with Al Qaeda, the Taliban, or associated groups.”
I suggest that may be a step too far. I read the act as saying a person is covered if she has “committed a belligerent act . . . in aid of such enemy force.” I would not look at the need to show a connection with the group but whether it can be shown that the belligerent act aided one of the groups. Or put another way, when two persons motivated by Jihadist ideas murder American citizens attending the Boston Marathon using homemade IEDs are they aiding al-Qaeda or the other groups.? I think the answer is clearly yes especially since that was their intent which was to advance the radical Islamist cause by demonstrating how easy it can be with the right planning to kill Americans. Has anyone measured the response by our enemies to that attack? Were they emboldened? Is that relevant? How do we define aid? Do we examine the person’s intent or the result?
I’m confused by Obama saying that he would ‘not authorize the indefinite military detention without trial of American citizens” and on the other hand saying that he has the right to kill American citizens utilizing an secret methodology. I’m also confused by the oft repeated mantra that an American citizen cannot be sent to Guantanamo. Is there something that says that?
Here Obama has made the decision to go to federal court. I think it is a mistake, as I said. We can already see the defense team bulking itself up with outside counsel and professors seeking to get on the federal teat. The main thinking seems to be that Joker can escape the death penalty if he pleads guilty. You noted my prosecution career. I was lucky to have a boss who let us operate as we saw fit. My interest was in preserving the civil liberties of all defendants and insuring that all things were done properly all the time including opening my files for defense counsel. i find with respect to the WOT people I normally would agree with outside of that I am in strong disagreement with. I sometimes wonder at what I’m doing on the side of people I normally would not come within a mile of.
Thanks for your comment. You add a lot with your insights, hard work and knowledge. I suggest you should have your own blog since your ideas are very valuable but you are always welcome here..
Dear Matt,
Yet again, you present a valid argument of statutory interpretation for how Tsarnaev could arguably be covered as an enemy belligerent. As there is no right or wrong answer at this point in the discussion and would be a matter of presenting any argument to a hypothetical presiding judge and jury, I am grateful for your demonstration of making an argument and reading between the lines. While I believe that it would be a stretch to connect the “belligerent act” definition to the attendant circumstance of “in aid of such enemy force,” this would depend upon what “in aid of” means. Does this mean to aid the cause of terrorism itself, or to provide more tangible material support? That answer is simply not spelled out and would require further statutory and case law research which is not necessary. Both are valid arguments, and I thank you for your continued efforts to support your original point, even in light of the issues my posts have raised.
In terms of your suggestion of a blog, what do you suggest that I should write about? Thank you, Matt, for also directing my eyes to the welcome mat at your doorstep; it is much appreciated, and I find our discussions to be comparable to the quality of a college course. Thank you for this opportunity.
Sincerely,
Jay
Jay:
As usual you dissect the issue quite well. I admit you have the stronger argument. I’d be hard pressed if I were a neutral observer to stretch the term “aid” to al-Qaeda, Taliban or an associated force to include the actions of the Tsarnaevs.
As for a blog, just write about things that interest you. Pick a topic an go for it. You write well and are very informative.
Dear Matt,
You also posed a question about what the official response is to the presumption by many that American citizens cannot be detained at Guantanamo. That answer appears to be, according to the National Defense Authorization Act (NDAA) of 2012 and the NDAA of 2013 both expressly state that American citizens CAN be detained at Guantanamo. See, e.g., Matt Sledge and Ryan J. Reilly, NDAA Signed Into Law By Obama Despite Guantanamo Veto Threat, Indefinite Definition Provisions, HUFFINGTON POST, January 3, 2013, http://www.huffingtonpost.com/2013/01/03/ndaa-obama-indefinite-detention_n_2402601.html; see also Michael McAuliff, Guantanamo Bay 10th Anniversary: Obama’s Detention Law Could Fill Prison Obama Tried to Close, HUFFINGTON POST, January 11, 2012, http://www.huffingtonpost.com/2012/01/11/guantanamo-bay-10th-anniversary-indefinite-detention-american-citizens_n_1197547.html.
Apparently, there was a provision expressly banning the indefinite detention of American citizens in the original bill enacting the NDAA of 2013, but this provision was removed in December of 2012 before the bill was passed by both houses of Congress and signed into law by President Obama. See Charlie Savage, Congressional Negotiators Drop Ban on Indefinite Detention of Citizens, Aides Say, NEW YORK TIMES, December 18, 2012, http://www.nytimes.com/2012/12/19/us/politics/congressional-committee-is-said-to-drop-ban-on-indefinite-detention-of-citizens.html.
In summary, the correct answer for your query here, Matt, appears to be as positive law clearly and unambiguously states, American citizens CAN be detained. Perhaps Obama chooses to manifest his personal opposition to this provision is more akin to the exercise of “prosecutorial discretion” as the original Congressional Research Service (CRS) document notes the presence of certain waiver provisions allowing for some level of discretion. As we have discussed previously, and you presented the illuminating reference to the Russian Constitution, the words mean nothing if they are not enforced. Here, as the enforcer, the President holds that power. A wholly agree with you about the detached logic in supporting the execution of American citizens abroad while opposing their detention as a policy platform. Perhaps there is an issue of territorial jurisdiction in which it’s acceptable if the execution is not on American soil then the rules are different. Yet even John Walker Lindh, who was apprehended on foreign soil, was not executed abroad and was never held at Guantanamo. I hope that this added research fully addresses the question you posed.
We shall see what the FBI office in Boston does with Tsarnaev.
Good night and good luck,
Jay
Jay:
Thanks for coming up with all that research. You can see if you’ve been reading the media how one wrong statement like “American citizens cannot be sent to Guantanamo” takes a life of its own and is repeated over and over again. I appreciate all your hard work and your ability to enlighten all of us who read your comments.