Why Courts Cannot be Entrusted with the War on Terror: Blind Judicial Trust and the Need to Keep Detainees at Gitmo

For anyone still clinging to the fallacious belief that the War on Terror should be chiefly a law enforcement effort involving prosecution in the U.S. court system, as the Clinton administration attempted, an AP report today provided another illustration of why that approach has never been, and will never be, a successful path to eventual victory.

As reported in the New York Sun, Mohammed Salah, a convicted suspect awaiting sentencing in Illinois for perjury in a case involving a conspiracy to launder money for the terror group HAMAS, was not considered a flight risk by U.S. District Judge Amy St. Eve, and will be allowed to remove a court-ordered electronic tracking device for his upcoming pre-sentencing vacation at Disney World. According to the Sun article, the Assistant U.S. Attorney in the case tried in vain to convince the judge that Salah’s promises to return to court for sentencing in June, made as they were by a convicted perjurer with links to a terror group, should not be trusted. The judge dismissed this logic, stating, “I’m confident that he will come back.” A delighted Salah reacted to the judge’s permissiveness:

"I get to take it off," a smiling Salah told reporters after court, pointing to a bulge under his left sock where the government has placed an electronic monitoring bracelet to make sure he stays under house arrest.

Judge St. Eve is living proof that President Bush has not appointed exclusively conservative judges during his terms in office. St. Eve, whose views and education are consistent with 1960s liberalism, admitted at her appointment in 2002 to not sharing the President’s political ideals: “Had there been a litmus test on a hot-button conservative issue, ‘I don't know how I could have passed,’ she confesses.” St. Eve's trusting nature is merely a symptom of the larger problem within the judiciary: Not taking the threat of terrorism seriously. For further examples of cases where judges ruled against the War on Terror, click here.

While Salah is grateful for St. Eve’s liberalism and happily sheds the ability of the Justice Department to monitor his whereabouts, another developing story demonstrated that misplaced faith in the judicial system’s efficacy in fighting terrorism is not limited to gullible judges. The Richmond Times-Dispatch (VA) reported today that Democratic members of the U.S Congress are pursuing legislation to close the terrorist detention facility at Guantanamo Bay, Cuba, and move detainees to brigs at military bases on the east coast, including the Quantico Marine Corps Base.

While Democrats have claimed that the expenses associated with Guantanamo justify closure of that facility, their pious demand for fiscal responsibility on this issue should be met with skepticism. Democrats have sought throughout the War on Terror to curb President Bush’s war powers, and forcing a closure of the detention facility at Guantanamo would be more than a symbolic victory in the only war they want to win, the War on Bush. Closing Guantanamo and moving prisoners to bases in the U.S. would effectively remove the detainees from Bush’s control as Commander in Chief and place them under the protective care of the Democrats’ preferred source of all rights and authority, the judicial system. The Times-Dispatch article confirms that granting legal rights and defense attorneys to terror detainees is at the heart of the matter:

Rep. James P. Moran, D-8th, said yesterday that he favors bringing Guantanamo detainees who have been charged with offenses to military brigs in the jurisdiction of the Richmond-based 4th U.S. Circuit Court of Appeals.

"That's the most conservative circuit court" in the nation, said Moran, a senior member of the House defense appropriations subcommittee. "So nobody can charge [the detainees] won't get a speedy and disciplined trial."

Representative Moran and his Democratic colleagues have not learned from the mistakes of the Clinton administration and continue to put their trust in a judicial system that has already proven incapable of investigating, punishing, and deterring terrorism. While the Clinton Justice Department investigated and ultimately prosecuted Ramsey Yousef for the 1993 World Trade Center bombing, others were planning and training for upcoming attacks on our embassies in Tanzania and Kenya, the USS Cole, and eventually 9/11. There is nothing in a criminal trial that can force a defendant to divulge operational information about his organization or co-conspirators. As long as the defendant is willing to accept prosecution and a prison sentence as a form of martyrdom for the cause, prosecutors have no leverage to apply in order to obtain intelligence information that could prevent future attacks or identify other terrorists.

From a purely practical perspective, the argument that operating the detention facility in Guantanamo costs the taxpayers too much money is dubious. If the detainees are moved to bases within U.S. District Court jurisdiction, taxpayers will be financing the legal costs for court proceedings, which will endure for years through endless appeals, as well as what would surely be upgraded housing and dietary provisions compared to Guantanamo. Representative Moran should be challenged to produce a cost comparison between current Guantanamo expenses and those his proposal would incur. Since this is actually a political stunt rather than a legitimate cost-cutting measure, I suspect Americans will never see any such comparison study made available for review.

How did Virginia’s Republicans react to the proposed move of these detainees to bases inside the U.S.? From the Fredericksburg Free Lance-Star:

"The Democrat Congress may think it's a great idea to move Islamic Jihadists less than 35 miles of the Pentagon, but it strikes me as poorly conceived," said RPV chairman Ed Gillespie, in a press release. "Moran's proposal would not be good for our national security, and it would not be good for the people in Stafford and neighboring counties."

Rep. Jo Ann Davis, R-Gloucester, also released a statement criticizing the proposal--including the anonymous suggestion of keeping terrorism suspects at Quantico--calling it "reckless policy."

"Bringing terrorists to Quantico, among other places, poses a homeland security threat," said Davis, whose district includes Stafford. "We in Congress are supposed to be working to keep terrorists out of America, not helping to bring them in."

Our court system does not strike fear in the heart of any terrorist and offers no hope for deterrence of future terrorist attacks. One need only point to the juries in the O.J. Simpson or “Scooter” Libby trials for examples of how easily juries can be duped by cleverly presented appeals to their racial or political sympathies. Terrorists would consider it a great luxury and good fortune to be prosecuted in U.S. courts. They would like their chances for acquittal, but even if convicted they would enjoy planning their subsequent unmonitored trips to Disney World.

Perhaps Judge St. Eve and Representative Moran could collaborate with Disney World on a project that would end terrorism through our liberal goodwill: Disney Detainee Day! After a few hours of continuous sailing through “It’s a Small World,” the jihadists will desperately sue for peace. On second thought, we are told that torture is an ineffective tool in the War on Terror. The ankle bracelet-free Salah would surely agree that when it comes to prosecuting terrorism in America’s courts, “it’s a world of laughter. . . .”

America and China Move Steadily in Opposite Directions

America is becoming China, while China is becoming America. As one who came of age during the Cold War and was inspired by Ronald Reagan’s aggressive fight to roll back Communism, I read my opening statement with equal parts dismay and disgust. As I examined an article appearing in today’s online Washington Post, I was struck by the truly remarkable irony in the events the report described.

Maureen Fan’s article, “China Legislature Introduces Property Law” caught my eye as I scanned the Post, and my heart was filled with hope as I read the following excerpts from the article:

In preparation for likely approval, China's legislature on Thursday began examining a much-debated law that helps protect private property in an increasingly well-off society.

Though the Communist Party still believes the state owns all land, the growing economy has meant that private property "has been increasing with each passing day" and the protection of it is the "urgent demand of the people," the draft legislation states.

"As the reform and opening-up and the economy develop, people's living standards have improved in general, and they urgently require effective protection of their own lawful property accumulated through hard work," said Wang Zhaoguo, Deputy Chairman of the National People's Congress, in introducing the latest draft of the measure to the legislature.

Individuals shall own "their lawful incomes, houses, articles for daily use, means of production and raw materials," the legislation states. "Lawful deposits and investments of individual persons and the gains derived from their investments shall be protected by law." Illegally taking possession or destroying any such property is forbidden.

Of course, China has not renounced Communism or state ownership of land, but the significance of this legislation that appears headed for approval should not be underestimated. China’s government according individual ownership rights to personal property, financial accounts, investments, profits, and “means of production and raw materials” would be perhaps the most important move toward human rights it has made in recent memory. The Communist government appears to realize that its economy relies heavily on private investments, and keeping investors happy is critical, even if doing so requires loosening state control over personal property.

According to Fan’s research, it has taken Chinese activists 14 years to move the pending legislation to this point, but they are optimistic that economic reality will secure final approval. Economics wields a powerful influence over property rights policies, and governments tend to be at the mercy of those who create and maintain consistent revenue sources. If granting and protecting personal property rights appeases China’s growing wealthy entrepreneurial class, the Communist government may consider that as a small price to pay to maintain its hold on other aspects of Chinese governance.

It may take another 14 years, but the next step for China’s property rights advocates will focus on land ownership rights which, as America’s Founding Fathers understood, establish true freedom for individual citizens who could not be removed from their dwellings or livelihood by government. China’s property rights activists recognize that they have made great strides with the personal property legislation, but the fundamental right to the land itself is the ultimate goal:

“As long as the problem of land ownership is not solved, conflicts on unfair land seizure cannot be avoided. Since land is in the hand of the government, a developer can bribe an official and make the official claim that the land is seized for public use," said Liu Xiaobo, a leading political dissident and literary critic. "If the developer could get the approval from the official, he is legally entitled to seize the land."

Still, Liu said the legislation had benefits. "This is the first law in our country for property protection. The public can at least cite a specific law when their property rights are violated," he said.

Though China's Constitution states that "lawful private property is inviolable," farmers and even city dwellers are routinely forced from their homes when developers and local officials decide the property is more profitable as an apartment block, government building or major shopping mall.

As I read the quoted paragraphs above, my initial excitement at witnessing China moving, albeit slowly, in the direction of increasing individual property rights was dampened by the contrasting direction in which America is heading when it comes to this same issue of property rights. As China prepares to approve extended rights, America, the great champion of human rights and liberty, is experiencing a steady increase in seizures of privately owned land by local governments, only to see that same land given to developers who promise huge increases in tax revenue from profitable commercial developments or high density residential housing.

The concluding paragraph of Fan’s article, as quoted above, ironically described precisely what is currently occurring in China and America. The difference lies in the fact that China is moving slowly away from such land seizures, while America, compliments of the 2005 Supreme Court decision in Kelo v. City of New London (CT), is moving steadily in the opposite direction.

In July 2005, popular radio and TV personality Larry Elder wrote a powerful commentary for World Net Daily in which he provides examples of eminent domain land seizures and how, despite nearly unanimous public opposition to the Supreme Court’s ruling, the pace of seizures by local governments is increasing as they seek to secure a larger tax revenue base in their communities. Lest one think that these seizures only happen to owners of “blighted” or “deteriorating” properties, Elder included the example of the Gamble family in Norwood, OH, whose home for 35 years was anything but blighted:

I interviewed Joy and Carl Gamble on my nationally syndicated radio program:

Joy: Six months after we retired, we opened up the newspaper and found out this developer ... wants our neighborhood. We had a nice home and a lovely neighborhood ... we were not a slum. We were not a threat to the health and welfare of Norwood.

Larry: The City Council said your neighborhood is deteriorating and blighted.

Joy: "Deteriorating" is so broad. ... Everybody's home is deteriorating. And now by this ruling by the Supreme Court, we are all renters. Nobody owns their home. ... Matter of fact, we're worse than renters – we're serfs.

Larry: Higher tax base, more revenue for the city, so the heck with Joy and Carl Gamble.

Joy: That's correct, and we lost our home. ... We had to flee or be evicted.

Larry: Did they offer you fair market value?

Carl: Yes ... but we haven't touched the money.

Larry: You don't want the money. ... You weren't going down to Florida and retire. You want to stay in your home.

Carl: That's what we told them.

Larry: They're offering you twice, three times, what they first offered you, Joy, and you're not taking it?

Joy: It's not a question of money. It's our home ... money does not buy everything.

Yet money was the prevailing factor that led to the city’s seizure of the Gamble’s home. The city reportedly was seeking an annual $2 million tax revenue increase in order to balance the city’s budget.

The Gamble’s were evicted, moved to Kentucky, but continued their legal battle. In 2006 the Ohio Supreme Court ruled in favor of the Gamble’s as co-plaintiffs, but it was too little too late to save their neighborhood, as reported by USA Today: the 3 plaintiffs’ houses were “the only houses left in what used to be a neighborhood of about 70 middle-class homes.” Residents in other states have lost similar battles. Remarkably, the ACLU, NAACP, and the AARP have all filed briefs on behalf of threatened land owners, yet the seizures nationwide continue at an ever increasing rate.

Government attempts to seize private land on behalf of private developers were already increasing prior to the Supreme Court’s Kelo decision. As Elder wrote:

Most Americans, no doubt, assume that this rarely happens. But according to the Institute for Justice, it occurs far more often than we think. From 1998 to 2002, government, at all levels, used eminent domain to acquire, or attempt to acquire, private property for private purposes on over 10,000 occasions.

As I reread Elder’s WND commentary, the contrasting influence of economics, positive in China and negative in America, was troubling. While Chinese activists struggle to acquire property rights America once held inviolable, America’s local governments are slapping long-time residents and even churches with eviction notices and eminent domain condemnation declarations. The city of Sand Springs, OK, set its sights on a local church that serves the local black community. The church building, only 7 years old and reportedly in good condition, stood in the way of a proposed commercial development anchored by a Home Depot. Churches are particularly endangered by eminent domain seizures because the Supreme Court’s Kelo decision established that economic improvement was sufficient justification. Churches are tax exempt and thus produce no revenue for cities. In the minds of many city councils, nearly any tax revenue producing enterprise would be of more value than a church.

Although I disagreed with many legal decisions made by former Supreme Court Justice Sandra Day O'Connor, I applauded her dissent in the Kelo decision. She understood the incredible danger inherent in the court’s decision, and in her forceful dissent, warned Americans that:

The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. . . .

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

America and China appear to be passing each other on the property rights highway, heading in opposite directions, both motivated by the desire for money. Unless the trend in America is reversed, in coming years my Cold War generation may witness the advent of greater property rights in Communist China than in the “land of the free."

Debate Sponsored by Fox News too Intimidating for 2008 Democratic Presidential Candidates?

Candidates for the 2008 Democratic presidential nomination are scrambling to intentionally schedule alternative debates and public appearances in Nevada in order to avoid the upcoming August primary debate co-sponsored by Fox News. Yesterday I wrote about the thin skin of Russian President Vladimir Putin, but even his skin appears to be much thicker than that of Democrats who apparently cannot tolerate the existence of a major media outlet that presents news without liberal spin and are afraid of being mocked by conservative pundits.

The Daily Kos is actively contacting the campaign staffs of major Democratic presidential candidates to encourage them not to participate in the Fox sponsored debate. Kos happily reported yesterday that “the first to definitely say ‘no’ is John Edwards.” Kos then quotes from an email he received from Deputy Campaign Manager Jonathan Prince and declares it to be “great news”:

We will not be participating in the Fox debate. We're going to make lots of appearances in Nevada, including debates. By the end of March, we will have attended three presidential forums in Nevada - and there are already at least three proposed Nevada debates. We're definitely going to debate in Nevada, but we don't see why this needs to be one of them.

Kos goes on to laud the Edwards campaign, remarking that they were “showing real leadership on this issue. Hopefully others will soon follow.” Kos further set forth the reasoning behind the push for his party to shun a Fox sponsored debate:

It's not a position they want to be in, and I'm sure they're cursing whoever it was that negotiated the deal with Fox News. (That Democratic Party decision maker, by the way, is still secret. Everyone claims they don't know who signed the deal.)

The campaigns could make things easier for themselves by just stating, en masse, that they won't do a Fox News debate, but that they'll be happy to debate in Nevada with another media partner.

The issue here isn't to screw over Nevada or its Dems (it's a state where we should be far more competitive, and will be in the next few cycles), and to deprive them of a close look at the field.

The issue is to deprive the right wing's premier propaganda outlet an easy opportunity to take cheap shots at our guys.

If Republicans ran in fear from appearances on news networks that mock and misrepresent them, there would have been no televised presidential debates or White House press conferences held in the past 50 years. Forgotten by Fox News critics is the important distinction that the network’s claim is not to be completely objective or impartial, but rather it is to be “fair and balanced,” which it accomplishes simply through its existence as a balancing alternative to the blatantly liberal traditional networks and newspapers. If there is a traditional major network news channel that has not mocked, belittled, or impugned the integrity of President Bush and Vice President Cheney, Spy The News! invites Kos to bring it to our attention. Republicans have been good sports in the past about attending debates orchestrated by CNN, ABC, CBS, NBC, and others, with full knowledge that the Republican message would be twisted and distorted by the news anchors within seconds of the event’s conclusion. Yet they participated anyway. Democrats should do likewise, even if makes them squirm a bit.

Small people avoid big challenges, and Edwards has demonstrated by his choice to duck the Fox debate in Nevada that there really are two Americas as he frequently argues, only it is not a rich versus poor divide but rather a clear distinction between courageous America and cowardly America. Considering that it took him longer to decide to pull out of the Fox debate than it did for him to advocate pulling out of Iraq should give voters little confidence in his courage to make tough decisions. In both cases he has chosen the easy path.

Democrats should consider that Fox News is the most watched cable news channel in America, with an audience nearly triple CNN’s and quadruple MSNBC’s. It has more viewers than both of its chief competitors combined. Fox News hosts also sweep the top 3 spots for their individual programs, with the O’Reilly Factor and Hannity & Colmes consistently holding the top two spots. Democrats should also keep in mind that many Fox News viewers also watch CNN and other networks in order to witness examples of media bias. In essence, although conservatives tend to agree with Fox News’ presentation of the news, they are keenly aware of how those same stories are being described in the liberal media. Fox News is clearly not the Democrats’ preferred news network, but for Democrats to advocate avoiding political debate simply because Fox has paid to co-sponsor the event suggests that what is actually feared may be the exposure to scrutiny their political views would receive.

Edwards insists there are 2 Americas, one rich and one poor, but the media outlets he deigns worthy to interview him never ask him pointed questions like “Isn’t the involuntary taxation of the rich to give to the poor also called socialism?” Another question he likely would not want asked is “How many doctors did you drive out of practice or out of state in North Carolina with your frivolous malpractice lawsuits? And Senator, if I may, did your persecution of doctors in North Carolina result in lower or higher healthcare costs for both rich and poor citizens of your state?” I wonder if Fox News has recorded chirping cricket sounds or perhaps the Final Jeopardy theme to play while Edwards crafts a reply.

All joking aside, Edwards should have no fear of a debate on an opposing network, since, as he claimed in many of his malpractice trials, he possesses clairvoyant abilities to channel spirits that reveal important facts of his cases to him. As reported by the New York Times, while “channeling” the spirit of a baby girl who allegedly died of doctor error resulting in delivery-induced cerebral palsy, Edwards told the jury:

"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you."

The jury came back with a $6.5 million verdict in the cerebral palsy case, and Mr. Edwards established his reputation as the state's most feared plaintiff's lawyer.

In the decade that followed, Mr. Edwards filed at least 20 similar lawsuits against doctors and hospitals in deliveries gone wrong, winning verdicts and settlements of more than $60 million, typically keeping about a third.

He should have no difficulty calling on sympathetic liberal spirits to warn him in advance what questions he will be asked and how he should answer. The only tough question he should face from them is how much he will charge by the hour for his channeling services.

Daily Kos, MoveOn.org and others advocating a boycott of the Fox News sponsored Nevada primary debate should heed the surprisingly astute advice of the Nevada Democratic Party as quoted in the Las Vegas Sun: “The debate in August is not an endorsement of Fox News. Instead, it is an effort to reach out to Fox News viewers. We will not win elections if we don't win over new people."

If speaking or debating only in front of comfortable network accomplices is so desperately sought by the 2008 Democratic presidential candidates, one can only assume that as president they would not be comfortable debating serious issues with a foreign head of state sitting across the table from them. If they cannot face potential mockery from Fox News, how will they be trusted to stand up to Ahmadinejad? If “fair and balanced” strikes fear in their hearts, how will they react to being called “the Great Satan” that should be annihilated?

It is not surprising that John Edwards was the first to personify Monty Python’s cowardly character Sir Robin, whose adventures were captured so well in song: “When danger reared its ugly head, he [Edwards] bravely turned his tail and fled.” We will surely soon hear Edwards’ response, echoing Sir Robin’s denials: “I did not. . . I never did.”

"Cut and run" as a policy may be the Democrats’ wish for Iraq, but in the case of debate avoidance it demonstrates a decidedly thin-skinned and cowardly approach to political discourse. The days of political immunity in the media for liberals are over, and hopefully a new “fair and balanced” ratio of liberal and conservative media will one day result in televised political debates hosted by a variety of networks of all political stripes. Democrats should show confidence in their political views and willingly debate each other regardless of the sponsoring network. The only message Democrats will send by boycotting a Fox News sponsored debate is that the liberal version of "freedom of the press" is extended only to traditional liberal sycophant networks.