[ETWolverine]

Casting Terrorists as Defenders of the Constitution
By J.R. Dunn

>Snip<

At Guantanamo on June 4, a pair of military judges threw out the cases against two active members of Al-Qaeda. These were not trivial figures. Salim Ahmed Hamdan served as no less than Osama bin Laden's driver and bodyguard, apart from his role in planning and carrying out attacks against civilians. The second defendant, Omar Khadr, is of an altogether different order. The junior member of Canada's "Al-Qaeda family", a clan in which every adult male member was a made mujahadin, Khadr was picked up while fighting against U.S. forces in Afghanistan. The soldier he killed there was a medic in the process of treating the injured. You will look and hard to find that fact mentioned in any current coverage, though they have no trouble making the space to point out that Khadr was fifteen at the time.

You'd think that the flaws in the government's case would have to be pretty egregious for such a pair of high-profile defendants to be so abruptly freed. But in truth, they're closer to textbook examples of misplaced-comma nitpicking. The case against Khadr is void, claims Army Col. Peter Brownback, because the military review board labeled him only an "enemy combatant", not an "unlawful enemy combatant". The same logic (if that's the word I'm groping for) was echoed by Navy Capt. Keith Allred in the decision on Hamdan. Because "unlawful" was left out, he is "not subject to this commission". It has to say "unlawful". They're not kidding. Presumably, it also has to be highlighted, underlined, and italicized as well. Every last usage. The court clerks will check.

>snip<

On May 30, in a decision of which the Guantanamo judges were no doubt well aware, a U.S. District court ordered the release of a Palestinian named Majed Talat Hajbeh. In Jordan, Hajbeh had been convicted of terrorism for, among other things, bombing an American school. (Which didn't stop him from running to the U.S. to hide out.) Picked up on an immigration charge, Hajbeh was held for four years while the U.S. searched for somebody willing to take him off our hands.

For some obscure reason, no state, including the Israelis, was interested in providing a home for a hardened Palestinian terrorist. (I assume he could have been sent back to Jordan but for rules forbidding this.) And there things stood until the last days of May, when Judge Jerome B. Friedman revealed that international terrorists who cannot be dumped elsewhere must be turned loose without further ado.

And on June 11, the umpire called, "strike three!" in the form of Al-Marri v. Wright. Ali Saleh Kahlah al-Marri is an easy match for Khadr and Hajbeh, a Qatari who trained at an Al-Qaeda camp, actually met 9/11 planner Khalid Sheikh Mohammed, and was sent to the U.S. to establish a sleeper cell to be activated for later terrorist strikes. The Fourth U.S. Circuit Court of Appeals argued with none of that. Nor did they dispute the fact that Al-Marri is an enemy combatant, unlawful or otherwise. What they found was that, despite those unquestioned facts, the United States "lacks the authority" to hold Al-Marri, and, by extension, any other active terrorist.

So in under two weeks time, the judiciary of the United States has established that known international terrorists, bent on causing as much destruction within this country's borders as humanly possible, cannot be held at Guantanamo, cannot be held in U.S. prisons, and cannot be returned to the only countries that will accept them. Needless to say, the media, the academy, and the Democratic Party - collapsed institutions all - view this as a triumph.

>snip<

Originally law represented the interests of society as a whole. The goal of legal proceedings was to repair breaches in the social fabric brought about by torts or criminal activity. Law was a balanced entity which (at least in the English system, and in the ideal sense) represented the interests of no party more than any other.

This classical paradigm underwent deep and massive changes during America's cultural revolution beginning in mid-century. Thanks to a serious misinterpretation of psychology by criminologists and other academics, the law began to shift its focus from the general to the particular, from society at large to the criminal. Psychologists such as Karl Menninger and criminologists beginning with the Chicago School of Social Science promoted a belief that rehabilitation of the offender must become the central pillar of the justice system, with all other factors, including punishment and restitution set aside. This way of thinking soon spread into the law schools and legal journals, becoming the consensus view of the legal profession (and beyond them the public at large, through such legacy media outlets as The New York Times, The New Yorker, and the Big Three broadcast networks.)

>snip<

Of course, it ended in disaster. The sanctification of the offender was a key element in the great crime explosion that wracked the country from the mid-60s until the late 90s. Hundreds of thousands of murders, robberies, and rapes (the exact number is unknown and never will be known) occurred as a direct result of the "procedural revolution". Criminals, it seemed, were not interested in any role as paladins of the Constitution as much as they were in getting away with the crime, and wound up using the procedural reforms as get-out-of-jail-free-cards. Over the following three decades, the new rights were slowly trimmed back by the courts, but never completely. In the past few years, the entire thesis has undergone a revival in legal circles, with the classic-comics psychology replaced by new findings in neuroscience.

The same attitude now serves as a template for the current legal view of domestic terrorists.

The entire campaign against terrorism has been depicted as a vast conspiracy against the public. (Not so incidentally, this has been the most successful campaign of its type ever carried out - not a single successful strike has occurred in America since 9/11. Compare that to Northern Ireland or the campaign against Basque terrorists.) All the failed institutions -- the media, academics, Democratic politicians - are in full agreement on the point that the public is in jeopardy from the campaign against terror, never mind the diminishing memory of the meaning of a terror attack in concrete and human terms. Federal telephone tapping, in their view, is not designed to track down potential terrorist plots, but to discover who's speaking out against Big Brother. Surveillance of overseas banking is not intended to trace funds that could be used to finance a terrorist strike, but to gather information about the citizenry. Library surveillance isn't meant to track down individuals searching for targeting information or bomb recipes but to compile lists of people reading Cindy Sheehan's books, and so on.

So if the War on Terror is a fraud, no more than a grotesque conspiracy designed to implement some kind of garrison state, what does that make the "terrorists"? What else but victims? Victims suffering horribly amid the abuses of Guantanamo and the rendition prisons. Victims standing alone against the full power of the state, victims deserving all the assistance they can get...

And in fact, the rhetoric we're hearing from the bench today closely echoes what was said about criminals during the 60s. Judge Diana Gribbon Motz, in her decision on the Al-Marri case:

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants, would have disastrous consequences for the Constitution - and the country."
There we have it - the terrorist as protector of the Constitution. The first line of defense of the Bill of Rights.

These American judges are trapped in their own mentalities. They are prisoners of the legal history of the past fifty years. They can't think of terrorists in any other way than as Mirandas and Escobedos of slightly different order. They can't conceive of the current terrorism prosecutions as anything other than echoes of those cases. They can't dispose of them in any way other than the way their predecessors dealt with Miranda and Escobedo and all the others.

>Snip<

Those enemies are well aware of all this. How couldn't they be? And they will take advantage of it. Wouldn't you?

POWs should not be treated as criminals. They should not be given trials because they are POWs and not criminals. POWs have never been given trials. The Geneva Conventions actually prevent POWs from being tried for their actions as soldiers (unless their actions were war crimes). They could be tried from crimes committed AFTER they were POWs, but not for their actions as fighters.

Our criminal justice system is not set up for the rules that apply to POWs. We need to stop trying to make the square peg fit the round hole. It doesn't work.

Elliot

[excon]

Hello El:

When the Convention was written, unending war was inconceivable. It's still inconceivable to me, but not to your guy, George W. Bush. When the Convention says that POW's can't be tried, it was anticipated that wars had conclusions where POW's would be liberated. This war, however, is not going to end, and your guy plans to hold them forever. Huh?

That's kind of like the Cheney argument about him not being a member of the government….. But I digress.

I'll bet the Geneva Convention you so liberally cite doesn't mention unending war. Indeed, if unending war would have thought to have been possible when the Convention was written, it wouldn't say what it does. Even to your off the wall right wing thinking, you couldn't possibly believe that it would - although you've shocked me in the past.

Nope El, cherry picking stuff to make your point ain't going to work as long as I'm around.

excon

[tomder55]

If terrorists on the battle field have standing in US Courts do they also have standing to take civil action against the troops on the field ? Do we need lawyers on the field advising the terrorists of their Miranda rights ?

What the convention did envision was war between nations that agreed amongst themselves on the conduct of war between themselves . It was never intended for non-signatories . What it did not envision was non-state organizations having the capability to attack and inflict casualties on a single day to a nation larger then any attack it had ever suffered .

Yes ;we had non-state organizations that waged war before . They were called pirates and were dispatched without the customary protocol that a criminal was allowed .

As I understand it the fact that no other nation wants their terrorist nationals returned to them has become a growing problem . Are we supposed to take them in as refugees once the idiots in our justice system releases them ?

[excon]

Are we supposed to take them in as refugees once the idiots in our justice system releases them ?

Hello again, tom:

Nahhh, we can just render 'em. You know, fly 'em in, drop 'em off on the street. Like we do now. I don't think we care much what other countries think about that. Do you?

excon

[ETWolverine]

Hello El:

When the Convention was written, unending war was inconceivable. It’s still inconceivable to me, but not to your guy, George W. Bush. When the Convention says that POW’s can’t be tried, it was anticipated that wars had conclusions where POW's would be liberated. This war, however, is not going to end, and your guy plans to hold them forever. Huh?

You are making an assumption... that the war will never end. I don't buy into that assumption. But whether it is true or not is beyond the point. The point is that the criminal justice system isn't designed to deal with POWs and the option of simply letting enemy combatants go and letting them attack us again isn't a viable option. The GC allows us to keep them without trial. It sets forth rules and conditions under which we may keep them INDEFINITELY until the end of hostilities. So why not abide by the rules set forth instead of making up new ones as we go along.

That’s kind of like the Cheney argument about him not being a member of the government….. But I digress.

When don't you digress.

And Cheney isn't arguing that he's not part of the government. He's simply arguing that he's part of the legislative branch rather than the executive branch. And he's wrong.

I'll bet the Geneva Convention you so liberally cite doesn't mention unending war. Indeed, if unending war would have thought to have been possible when the Convention was written, it wouldn't say what it does. Even to your off the wall right wing thinking, you couldn’t possibly believe that it would - although you’ve shocked me in the past.

Prepare to be shocked again:

It doesn't matter that the GC doesn't mention "unending war". Please keep in mind that the final parts of the GC were written in the 1970s, during the height of the Cold War... what seemed at that point to be an unending war. Also, please keep in mind that the GC was written with wars such as the 100-Years War and the 30-Years War in mind. The authors knew of the possibility of a multi-decade and multi-generational wars. And they didn't set up a sepparate set of rules for long wars and short wars because they realized that there shouldn't be any difference in the rules.

Nope El, cherry picking stuff to make your point ain't going to work as long as I'm around.

I'm not the one ignoring the historical context of the GC and when it was written, you are. Which of us is cherry-picking the facts, ex?

Elliot

[ordinaryguy]

How can a "terrorist" be identified? Is it a person who commits a "terrorist" act, one who advocates and incites others to commit "terrorist" acts, or does it also include those who hold "terrorist" opinions or beliefs?

How can a "terrorist act" be distinguished from a criminal act or an act of war? Can a soldier in battle commit a "terrorist act"? Can a civilian commit an act of war? Is a civilian who carries out hostile acts against an occupying army a terrorist, a criminal, or an unlawful enemy combatant?

Timothy MacVeigh was tried and convicted in a court of law so he was, by definition, a criminal. Was he also a terrorist? Should he have been treated as a POW or an unlawful enemy combatant instead of as a criminal?

Should unlawful enemy combatants have all the rights afforded to POW's under the Geneva Conventions?

[ETWolverine]

How can a "terrorist" be identified? Is it a person who commits a "terrorist" act, one who advocates and incites others to commit "terrorist" acts, or does it also include those who hold "terrorist" opinions or beliefs?

One who committs a terrorist act is definitely a terrorist. One who plans, finances, gives aid and support to those commit terrorist acts are terrorists. Belief alone is not enough to call someone a terrorist, though belief is certainly an indicator that such a person needs to be watched. And if that entails "profiling" then so be it.

How can a "terrorist act" be distinguished from a criminal act or an act of war?

Some terrorist acts are crimes... in fact, most are. But what makes them terrorism rather than criminal acts is context. In what context was the act committed? Was the civilian taken hostage during the commission of a ban robery (a crime) or was it done as a political statement and an act of aggression against a political power (terrorism).

Can a soldier in battle commit a "terrorist act"?

Absolutely. Deliberately attacking civillians with no intention of attacking military targets is a terrorist act, and one that is committed by people in uniform all the time around the world.

Can a civilian commit an act of war?

Certainly. Any act of terrorism is an act of war. 9/11 was an act of war committed by civillians. It was also terrorism. And it was criminal acts. And since it was done in the context of committing an act of war against the United States of America, it falls under the category of TERRORISM not criminal activity.

Is a civilian who carries out hostile acts against an occupying army a terrorist, a criminal, or an unlawful enemy combatant?

If the attack is against military targets, it isn't terrorism. Military targets are legal in times of war. However, if the civilian is not wearing a uniform, or if the perpetrator is a soldier who is not wearing a uniform, then he is an unlawful combatant, as per the GC.

Timothy MacVeigh was tried and convicted in a court of law so he was, by definition, a criminal. Was he also a terrorist? Should he have been treated as a POW or an unlawful enemy combatant instead of as a criminal?

He was a criminal. He was also a terrorist. And had he blown up the Oklahoma City government office building during a time of war, then he should have been handled as a POW and a terorist, not in the ciminal courts. However, since we were NOT in a declared war at the time, treating him as a criminal was the only option. That is NOT true today. We ARE at war.

Should unlawful enemy combatants have all the rights afforded to POW's under the Geneva Conventions?

ABSOLUTELY NOT!! In fact, the Geneva Conventions specifically state that unlawful enemy combatants are NOT protected by the CG.

These aren't tough questions to answer, ordinaryguy. They are actually rather simple to answer. But one has to be able to get past all the junk about moral equivalence, political corectness, and liberal pablum, and start using their brain in a discriminating manner... discriminating between right and wrong, good and evil, and yes, even us and them.


As a side note:
The whole idea that "one mans terrorist is another man's freedom fighter" or "a soldier is just a terrorist in uniform" is false... an attempt at moral equivocation. That's fine and good during a time of peace, when we don't have enemies at our doorstep trying to kill us. I disagree with it even then, but I accept people's rights to go with that idea. But not during wartime, when we have to respond to a direct threat from an enemy that uses that sort of moral equivocation as a shield.

Nor do I believe that "one mans terrorist is another man's freedom fighter". Because in order to be a "freedom fighter", one must, of necessity, be fighting for freedom. The Islamofascist terrorists aren't fighting for freedom. Quite the opposite; they are fighting for religious intolerance and the death and destruction of anyone who doesn't follow their religion.

I bring this up, because your questions about who is a terrorist vs. who is a criminal, vs. who is a civilian defending his country smack of trying to make them the same, morally and legally. They are not, nor should they be seen as such. And the differences between them are easy to see, if you are willing to open your eyes to see the differences. But it takes getting past the PC crap to the real issues of how to defend ourselves against an enemy bent on our destruction.

Elliot

[talaniman]

Putting someone in jail without charging them, is profiling at its worst and given this administrations history and record to detain, someone forever because of what could be profiling, or false intelligence has got to be wrong. In a nation of laws, and checks and balances, then it is only correct to treat so called terrorists, as criminals put 'em in jail, and charged with a crime, and then punish them.

[tomder55]

German agents landed on US soil at the time of our entry into WWII . They preceded to execute a campaign of sabotage ,with Americans of German decent , entitled "Operation Pastorius" .Operation Pastorius - Wikipedia, the free encyclopedia

They were captured . They were treated as unlawful enemy combatants as defined by the GC because they were un-uniformed .

They were

put on trial before a seven-member military commission on specific instructions from President Franklin D. Roosevelt. They were charged with 1) violating the law of war; 2) violating Article 81 of the Articles of War, defining the offense of corresponding with or giving intelligence to the enemy; 3) violating Article 82 of the Articles of War, defining the offense of spying; and 4) conspiracy to commit the offenses alleged in the first three charges.

Lawyers for the accused attempted to have the case tried in a civilian court, but were rebuffed by the Supreme Court in Ex parte Quirin. FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code The trial was held in the Department of Justice building in Washington. All eight defendants were found guilty and sentenced to death.

All but 2 were executed .

When enemy combatants are found behind enemy lines in civilian clothing, as they were, it is a serious violation of the laws of war ;as the GC clearly says . Why was military tribunal chosen? A civilian court proceeding might have resulted in acquittal - or a judge's decision to dismiss charges.

In ordering military tribunals President Bush has followed precedence from previous Commanders in Chief going as far back as George Washington. The fact that those indictments have not taken place is an indictment of Congressional and judicial stalling . The process of justice has been legally established by the President .

[ETWolverine]

Talaniman,

Putting someone in jail without charging them, is profiling at its worst and given this administrations history and record to detain, someone forever because of what could be profiling, or false intelligence has got to be wrong. In a nation of laws, and checks and balances, then it is only correct to treat so called terrorists, as criminals put 'em in jail, and charged with a crime, and then punish them.

First of all, jailing people isn't profiling. Profiling is when you target a specific group for a specific activity... such as checking all cars driven by black men for drugs. Profiling in criminal justice is seen as a terrible thing by liberals, but guess what--- it works.

And do you truthfully believe that people other than law enfocement don't profile all the time?

Who is Telemundo targeting with their programing? Is it blue-haired little old ladies from Long Island, or is it the Hispanic crowd? That is profiling.

Afternoon cartoons target a specific audience, children 6-12 years old. THat is profiling.

When a commercial for Viagra appears on TV, is it targeting teenage girls? Probably not. That is profiling.

Profiling, or targeting a specific demographic for a specific activity, is the best way to make sure that you cover your desired target and don't waste time and effort on people you aren't interested in. And it works. It works for businesses, and it works for law enforcement.

Consider this: Almost 95% of all terrorist attacks performed by Islamic radicals worldwide have been performed by Middle Eastern men aged 18-35. The few that were not performed by that demographic were performed by Middle Eastern WOMEN aged 18-35. So who should law enforcement and anti-terrorist agencies be looking at in order to prevent terrorism? Blue-haired old ladies from Long Island?

Jailing people without a trial isn't profiling. Depending on whether there is a reason to justify jailing them or not, it might be false improsonment, violation of civil rights, or it might just be taking POWs in time of war... which is perfectly legal. Usually the jailing takes place AFTER the profiling. And false imprisonment need not necessarily be a product of profiling.

Now... ask yourself these question. And be honest in your answer, with yourself if not with me. If you knew that a Middle Eastern man was coming to kill you, but couldn't identify him until after he attacks you, wouldn't you want the cops to check out all the Middle Eastern men coming near you before they attack you? And if they find someone that they suspect of being your attacker, don't you think that person should be put behind bars? Especially if he had a history of such attacks in the past?

We are talking about that exact scenario, but on a global scale. Middle Eastern men are coming to attack us. We can either look for suspicious activities among Middle Eastern men and jail the most probable suspects, or we can worry about profiling, wring our hands about the abuse of human rights of Middle Eastern men, and die in stupidity when the next attack gets through.

I just read a novel in which this exact topic was brought up as part of the storyline. The book is called "A Deeper Blue" by John Ringo. It is part of the "Chooser of the Slain" series.

Mrs. Meier is a security guard and bag-checker at Disney's Magic Kingdom. Disney has been informed that a terrorist attack using VX gas is imminent. She is a Jewish woman who feels that racial profiling is wrong. The scene goes like this:

Fisher had gotten a new security guard for Booth Four and went over to the checker.

"Mrs. Meier," Fisher said as the entry supervisor hurried over. "You didn't check a spray can."

"I'm sorry, Mr. Fisher," the woman said angrily. "But this is all so stupid! Nobody is going to put anything in a can of OFF."

"Let the security guard do the checking on this one," Mike said. "I think that Mrs. Meier could do with a little demonstration."

"Okay," Fisher said. "Mrs. Meier, if you could accompany us?"

The threesome walked over to the door and went through. On the other side was a section sealed off with plastic sheeting. Inside the plastic sheeting, two of the Keldara were fitted with poison gas gear.

The Middle Easterner was standing by nervously as the security guard, gingerly, removed the spray can. The two large Keldara still flanked the potential terrorist. The security guard put the can on a tray and slid it into the sealed area through an air lock.

"Sir, if you would step in there," Mike said, politely. "And demonstrate that that is normal OFF in the can, I'd be very grateful."

"I will not!" the man shouted. "You are picking on me because I am Arab! You will stop this now! I will protest to CAIR!"

"Fine," Mike said with a sigh. He drew the Desert Eagle and pointed it at the man's head. "Once upon a time the .44 Magnum was the largest and most powerful handgun in the world. It was subsequently replaced by this one, the Desert Eagle .50 caliber, which can kill an elephant at short range. Admittedly, subsequent to that other more powerful handguns such as the Casull .454 have been developed but that is not entirely germane to our discussion since I am not currently pointing one of those at your head. I will, however, add that I'm having a very bad day. I've gotten shot at, gassed and done a rather nasty swim. My harem manager has been kidnapped and is being tortured at the moment. I'm tired and cranky and I haven't gotten laid recently. So. You can demonstrate that there is not VX in that can or you can be shot by a gun normally used to kill elephants. Your choice. I'm good either way."

"You wouldn't shoot me," the man said, shaking his head. "Not in cold blood. Not with everyone watching."

"Bets?" Mike asked, cocking the pistol. "This is a hollow point round. When it hits your head this entire room will be covered in blood and brains, but I've got spare clothes and I've been covered in blood and brains before."

"I will not spray that on myself," the man said, shaking his head. He was clearly terrified, but it could have just been the massive gun sitting on his occipital bone. "No."

"Georgi," Mike said, raising his voice. "Try it on one of the gerbils."

The Keldara reached into a cage and removed a gerbil, then placed it in a different cage. First he sealed the cage, then inserted the can and his hand through a rubber seal. He shook the can and sprayed a very small quantity into the cage. The gerbil began spasming immediately.

The Middle Easterner tried to run but the two Keldara wrestled him easily to the floor and slid cuffs on his hands and feet and a hood over his head.

"Now, Mrs. Meier," Mike said, decocking the weapon and putting it away. "You just let VX gas into the Magic Kingdom and that really pisses me off. How many other cans did you fail to check?"

"I . . . I don't know," the woman said, her eyes wide and fixed on the dead gerbil that could be seen through the clear plastic. "A . . . a few."

"Any carried by men of Middle Eastern extraction?" Mike asked.

"I try not to look," the woman said, angrily. "That's profiling. I refuse to treat people differently just because of the color of their skin. If you were from my people you would understand that."

"This wants to wipe every Jew off the face of the earth," Mike said, kicking the terrorist in the side. "Jews are, after all, descendants of apes and pigs. So I don't find you noble or honest or good or anything. I find you to be a f@$%ing idiot. The sort of f@$%ing idiot that thought that Hitler couldn't possibly be 'serious.' But, congratulations, you've probably killed quite a few people today, no matter what I f@$%ing do. Because we can't weed them all out, now. Congratu-f@$%ing-lations. I hope you enjoy your moral superiority."

That is what we are talking about... you are trying to hold your moral superiority over and above the safety and security of the American people. That's a dangerous stance. Your moral superiority won't do you or anyone else a damn bit of good in the grave.

I have a wife and kids to think about. I work in New York, a prime target for terrorism. I am an Orthodox Jew as is my family, which makes us a prime target for terrorism. I don't have the luxury of your moral superiority. I'm much more concerned with keeping my family alive during a global war in which we are targets of an enemy that profiles its targets by race and religion. So you'll pardon me if I think your morally superior stance of ethnic diversity and kumbaya-love-everyone-all-the-time anti-profiling is a load of crap.

Remember, if you aren't a Muslim, you're a target for Muslim terrorists. THAT IS PROFILING OF THE WORST KIND. Not what Bush is doing to POWs.

Elliot

[ordinaryguy]

Some terrorist acts are crimes... in fact, most are.

Can you give an example of a terrorist act that is NOT a crime?

But what makes them terrorism rather than criminal acts is context. In what context was the act committed? Was the civillian taken hostage during the commission of a ban robery (a crime) or was it done as a political statement and an act of aggression against a political power (terrorism).

Are you saying that a political motive rather than a personal one is what defines an act of terrorism?

[ETWolverine]

Can you give an example of a terrorist act that is NOT a crime?

How about when OBL sends his video or audio tapes to al Jazeera. No specific crime there, but the videotapes are an implied threat to the USA... and thus constitutes terrorism.

Are you saying that a political motive rather than a personal one is what defines an act of terrorism?

No. I am saying that context determines whether it is terrorism or not. I'm sure that MacVeigh had all sorts of "personal" reasons for wanting to overthrow the US government. It's still terrorism.

How shall I put this?

When someone attacks an individual for the purpose of stealing that person's money, that is a crime. It is not terrorism, however.

On the other hand, if that same person attacks an individual for the purpose of making a personal or political statement against a government or a group of people (ei: I hate the USA or I hate Jews), that is terrorism. The attacks may be exactly the same. But the context in which the attacks are performed determines whether it is terrorism or not.

If that same attack is performed to send a personal or political message to the government or as an attempt to overthrow the government when that government is at war, that perpetrator is an unlawful combatant.

If the person he attacked is a civilian rather than a military of political official, that perpetrator is technically guilty of war crimes as well.

It is the context that determines the nature of the attack.

Elliot

[ordinaryguy]

Originally Posted by ordinaryguy
Can you give an example of a terrorist act that is NOT a crime?

How about when OBL sends his video or audio tapes to al Jazeera. No specific crime there, but the videotapes are an implied threat to the USA... and thus constitutes terrorism.

So in your view, is anyone who makes a speech or other communication that contains "an implied threat to the USA" a terrorist?

[ordinaryguy]

No. I am saying that context determines whether it is terrorism or not. I'm sure that MacVeigh had all sorts of "personal" reasons for wanting to overthrow the US government. It's still terrorism.

How shall I put this?

When someone attacks an individual for the purpose of stealing that person's money, that is a crime. It is not terrorism, however.

On the other hand, if that same person attacks an individual for the purpose of making a personal or political statement against a government or a group of people (ei: I hate the USA or I hate Jews), that is terrorism. The attacks may be exactly the same. But the context in which the attacks are performed determines whether it is terrorism or not.

If that same attack is performed to send a personal or political message to the government or as an attempt to overthrow the government when that government is at war, that perpetrator is an unlawful combatant.

If the person he attacked is a civillian rather than a military of political official, that perpetrator is technically guilty of war crimes as well.

It is the context that determines the nature of the attack.

Elliot

How does what you call "context" differ from "motive"? You use the phrases "for the purpose of" and "to send a...message to", which explicitly refer to the perpetrator's reason for carrying out an attack, i.e. his motive. "Context", as I understand it, would refer to external events and circumstances that surround the attack.

[ETWolverine]

Ordinaryguy,

How does what you call "context" differ from "motive"? You use the phrases "for the purpose of" and "to send a...message to", which explicitly refer to the perpetrator's reason for carrying out an attack, i.e., his motive. "Context", as I understand it, would refer to external events and circumstances that surround the attack.

Part of context is indeed motive. WHY did the person commit this act? Were they doing it for money, or were they acting against a government, agency or group?

Part of context is who was the target. Was the target random or was the target chosen based on a political agenda?

Part of context is also what is going on in the rest of the world at the time. Are we in a state of war against the people that the perpetrator supports? Or was this an isolated incident not related to an organized enemy's attempts to attack us with military force.

Part of context is the nature of the event itself. Was it an attack against a government or agency or group that intentially targeted civillians as a tool to "send a message"? Or was this a random act of violence? Was it planned or was it an attack of opportunity?

Part of context is association. Is this perpetrator known to be part of a group that associates with or supports terrorism, or is he just a street thug or gang-banger?

And there are other factors that define "context" too. To put things into context means to open your eyes, look at all the facts at the MACRO level, and put them together to come to a conclusion as to whether it was terrorism or just a crime. You can't just look at the act by itself and make the determination of "terrorism" or "crime". You need to look at the entire picture to make that determination.

But looking at that big picture, it becomes fairly easy in most cases whether an act is a crime or terrorism.

Now, let me turn the question back on you. How do you determine what is a terrorist act, vs. what is simple crime? Or do you even make that distinction? Because if you don't, I think there's a huge problem with the way you view terrorism... and thus the steps you are willing to take to prevent terrorism.

Elliot

[ordinaryguy]

Any act of terrorism is an act of war. 9/11 was an act of war committed by civillians. It was also terrorism. And it was criminal acts. And since it was done in the context of committing an act of war against the United States of America, it falls under the category of TERRORISM not criminal activity.


He was a criminal. He was also a terrorist. And had he blown up the Oklahoma City government office building during a time of war, then he should have been handled as a POW and a terorist, not in the ciminal courts. However, since we were NOT in a declared war at the time, treating him as a criminal was the only option. That is NOT true today. We ARE at war.

If any act of terrorism is an act of war, and if MacVeigh committed a terrorist act, then why wasn't it an act of war? We are not in a declared war now, any more than we were then. The Constitution gives Congress the sole power to declare war and it has not done so. Was MacVeigh's trial, conviction and sentence somehow defective or deficient because he was tried as a criminal and not as an unlawful combatant?

Should unlawful enemy combatants have all the rights afforded to POW's under the Geneva Conventions?

ABSOLUTELY NOT!! In fact, the Geneva Conventions specifically state that unlawful enemy combatants are NOT protected by the CG.

I asked the question because in your original post you seem to use the term POW to mean terrorist. You do the same in your answer about MacVeigh above. The term "terrorist" has no specific definition within the Constitution, US law, or the Geneva conventions. As for the term "unlawful combatant" or "unlawful enemy combatant",

The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII).[1] However, Article 4 of GCIII does describe categories of persons who are entitled to prisoner of war status and there are other international treaties which deny lawful combat status for mercenaries and children. In the United States, the Military Commissions Act codified the legal definition of this term, and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant. However the assumption that such a category as unlawful combatant exists contradicts the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention, that every person in enemy hands must either be a prisoner of war and, as such, covered by the Third Convention, or a civilian covered by the Fourth Convention, and that "There is no intermediate status; nobody in enemy hands can be outside the law" (The comment was written before the more recent treaty provisions on mercenaries and children had been drafted).[5]
unlawful combatant: Information from Answers.com

[ordinaryguy]

German agents landed on US soil at the time of our entry into WWII .
...

They were captured . They were treated as unlawful enemy combatants as defined by the GC because they were un-uniformed .
...

When enemy combatants are found behind enemy lines in civilian clothing, as they were, it is a serious violation of the laws of war ;as the GC clearly says . Why was military tribunal chosen? A civilian court proceeding might have resulted in acquittal - or a judge's decision to dismiss charges.

In ordering military tribunals President Bush has followed precedence from previous Commanders in Chief going as far back as George Washington. The fact that those indictments have not taken place is an indictment of Congressional and judicial stalling . The process of justice has been legally established by the President .

Well, not exactly. The case of the German saboteurs (ex parte Quirin) is different from what is going on now with the Guantanamo detainees and other "unlawful enemy combatants" in fundamental ways.

In Quirin the defendants had their status as “unlawful combatants” determined by a properly formed military commission expressly authorized by statute. The defendants had access to counsel throughout the proceedings and were ultimately able to seek judicial review of the findings of the commission. Quirin thus stands for the proposition that civilian courts should not, at the very least, categorically decline to review habeas cases where the government alleges that a person is an “unlawful” or “enemy” combatant.
“Unlawful Combatants” in the United States - Human Rights Magazine, Winter 2003

As applied specifically to the cases of Jose Padilla and Yaser Esam Hamdi, US citizens, detained within the US, held for an indeterminate period in solitary confinement without legal process, disclosure of evidence, access to counsel, family visitation, or judicial review,

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all
unlawful combatant: Information from Answers.com

[ordinaryguy]

Now, let me turn the question back on you. How do you determine what is a terrorist act, vs. what is simple crime? Or do you even make that distinction? Because if you don't, I think there's a huge problem with the way you view terrorism... and thus the steps you are willing to take to prevent terrorism.

What matters is not whether you or I make that distinction, but whether the distinction is valid and relevant as a matter of law, and whether an alternative legal regime that depends upon it it is effective in deterring and punishing those who use terrorisim as a tactic in achieving their aims. Neither US law, the laws of war, nor the Geneva Conventions define or recognize a class of persons called "terrorists". Terrorism is not an ideology, it is a tactic, one that has been used by adherents to a variety of ideologies and causes over hundreds of years. Radical Islamists are not the first to use it, and they will probably not be the last.

The heart of the question before the world, and the US in particular, at this point in history is whether the use of terrorist tactics by radical Islamists constitutes a threat that is sufficiently grave to justify sacrificing the rule of law, the rights of due process, and the safeguards to human rights that have been developed over the course of several hundred years. These rights and processes have been developed to protect the individual from the abuse of power by the state, with its police powers and military might. Time and again these powers have been used by those in power to crush dissent and eliminate any threat or opposition to their rule. The writers of the US Constitution were acutely aware of the danger posed by unchecked state power and deliberately set about to design a system of government that prevented all power from being concentrated in the hands of one or a few.

The Military Commissions Act, passed by Congress and signed into law by the President late last year defines an "unlawful enemy combatant" as follows:

"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."

A "lawful enemy combatant" is defined in a manner consistent with the Geneva Conventions, namely, being commanded by a person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting their operations in accordance with the laws and customs of war.

The term "hostilities" is not defined in the Act.

This means that any person who engages in "hostilities" against the United States who is not a soldier in the service of a foreign government or militia, is an unlawful enemy combatant.

Notice what is NOT required:
You do not have to be an "alien", so US citizens may be so designated.
You do not have to be part of a terrorist organization.
Your "hostilities" do not have to be done to aid such an organization.
You do not have to have supported such organizations.
Your "hostilities" do not have to take place on a battlefield.
You do not have to be in violation of the "law of war".

Since the term "hostilities" has been left undefined, it is unknown what sorts of activities might qualify. For example, is a person who speaks or writes critically of the Government an unlawful enemy combatant? What about a journalist who publishes leaked information damaging to the Government? The definition is broad (and vague) enough to include anyone, anywhere in the world, US citizen or not, who is acting in a way the President deems "hostile" to the United States.

If you are declared to be an "unlawful enemy combatant" you may be detained indefinitely, in solitary confinement, without access to a lawyer, without contact with family, without contact by the International Committee of the Red cross or other human rights organizations. You may not petition the Courts for a writ of Habeas Corpus, which means that the Government does not have to say why it is holding you, or even to admit that it IS holding you. In other words, you can be effectively disappeared. If you die in custody for any reason, the Government does not have to disclose this fact or explain why you died. You may be subjected to cruel, inhumane, humiliating and degrading treatment. You may be subjected to "enhanced interrogation techniques" which may or may not include treatment that the Geneva Conventions define as torture, because the Government has refused to say what these are, or how it defines torture. All of this without ever even being CHARGED, much less convicted of a crime.

I do not think that the Islamist threat is so great that I am willing to vest this kind of unchecked and absolute power in the Government. Time and again, powers that governments acquire for one purpose are eventually used for other purposes. Enemies come and go, wars and conflicts come and go, but the power of government to trample on the rights, liberties and freedoms of individuals remains a continuing and constant threat. The rule of law and the recognition of universal human rights by governments has come at great cost over many generations, and I am not willing to sacrifice these hard-won gains on the altar of the "War on Terror".

Just yesterday, the Supreme Court reversed itself and agreed to hear a challenge to the Military Commissions Act. I am so thankful that the framers of the Constitution had the foresight to balance the powers of the three branches of government so that each restrains the others, because in this case, the Executive and Legislative branches failed miserably to protect individual rights. If the Judicial branch fails as well, we are in for a long hot century I'm afraid.

[talaniman]

One thing about it if we change what we are because of them, they win. Another thing is they are criminals in my mind, so give 'em there day in court and lawfully lock 'em up, or better yet, execute them.

[tomder55]

British police have a "crystal clear" picture of the man who drove the bomb-rigged silver Mercedes outside a London nightclub, and officials tell the Blotter on ABCNews.com he bears "a close resemblance" to a man arrested by police in connection with another bomb plot but released for lack of evidence.

The Blotter

The cameras work(I can hear the screams from the ACLU already ) but the system that treats these as law enforcement events is what is broken. Thankfully this attack did not result in mass casualties . It was more a matter of luck that saved the Brits. From themsleves.