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March 20th, 2010

Reading Osama His Rights?

Obama IOWAWritten by Gabe Haugland

In a statement this week he probably regrets, Attorney General Eric Holder said that we would never have the opportunity to read Osama Bin Laden his rights because he’ll never be caught alive:

“Let’s deal with reality,” Holder said. “The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.”

Holder was responding to well-placed criticism from members on Capitol Hill who are challenging the administration’s decision to strip military tribunals of their jurisdiction (granted by Congress through the Military Commissions Act) and try terrorists in civilian courts. Specifically, members wanted to know if the Obama administration intended to try Osama Bin Laden in a civilian court, something I think most Americans agree would be reckless and ineffective.

Coming quickly on the heels of Holder’s assertion, General McChrystal, the four-star general in charge of operations in Afghanistan, offered the military’s position:

When McChrystal was asked whether the U.S. had given up on capturing bin Laden alive, he said, “Wow, no.”

Our final accounting looks like this: the Columbia-trained lawyer who wants to try terrorists in civilian court and brazenly claims Osama Bin Laden will never be caught alive, versus the West Point general who has actually seen combat and is charged with capturing Bin Laden who says, “we would certainly go after trying to capture him alive and bring him to justice.”

The reality is that Osama Bin Laden may well be caught alive, and the Obama administration will be put in the unique position of trying to explain to the American people why he should be afforded the same Constitutional protections as the American citizens he helped murder on 9-11. If they don’t read him his rights, they’ll be stuck trying to explain the precedent they’ve set by reading Miranda rights to terrorists like “The Underwear Bomber” Umar Farouk Abdul Mutallab.

Unfortunately, Attorney General Holder seems willing to say almost anything, however uninformed it may be, to further the goal of “improving our image in the world” by trying terrorists in civilian court. Furthermore, the decision reflects the administration’s intent to treat the war as a law-enforcement matter, forcing soldiers to gather evidence in situations and circumstances where it is nearly impossible to do so.

As for the issue of “improving our image”, Charles Krauthammer disposes with the nature of the supposedly “fair” trials:

“What happens if KSM (and his co-defendants) “do not get convicted,” asked Senate Judiciary Committee member Herb Kohl. “Failure is not an option,” replied Holder. Not an option? Doesn’t the presumption of innocence, er, presume that prosecutorial failure — acquittal, hung jury — is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

As both an attorney and a soldier, I cannot find anything positive to say about this decision, or about Holder’s argument in favor of it. Not only is the administration ignoring well-established law (the Military Commissions Act of 2009), but they are putting more of my fellow servicemembers in harm’s way by giving a public platform to unrepentant terrorists. Furthermore, there’s a distinct possibility that someone like Khalid Sheikh Mohammed, the 9-11 mastermind, could be acquitted in civilian court because waterboarding was used to extract his confession and evidence obtained through torture is inadmissible in civilian court.

Military tribunals are better suited for prosecuting terrorists because they recognize the exigencies of war. For example, the rules of evidence in a military tribunal do not require soldiers to read a terrorist his rights before taking him into custody, and evidence obtained through intense interrogation can be admitted where it wouldn’t in a civilian court it couldn’t. Can you imagine requiring an elite soldier to rush into a house with 4 of his closest teammates in the middle of the night, clearing a house room-by-room in a hostile neighborhood, and then ask him to stand there and read the suspect his rights while other terrorists are on the move to ambush them? That’s exactly what the Obama administration is asking our soldiers to do.

The reality is that more terrorists will walk in civilian court than through a military tribunal. The Military Commissions Act was passed with bipartisan support in Congress, signed into law by the President of the United States and has been subsequently upheld by the Supreme Court.

And yet, the Obama administration refuses to implement it.

Dangerous.

(Disclaimer: I speak only as an American citizen on this blog, not as a soldier, and not in any official capacity. The opinions expressed are mine alone.)

Photo by Dave Davidson

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About the Author

Our Army Life
My name is Gabe Haugland, and I’m an Iowa National Guard Infantry officer. I’m also an attorney, father, husband, brother and son. The Iowa National Guard has been notified that we will deploy to Afghanistan this year. This will be our first deployment as a family, and I intend to use this blog to keep our family and friends informed as we train-up for the deployment and finally make our way “in country”. We hope to capture the joys and challenges of “Our Army Life” and do our part to bring attention to the sacrifice that Army families make.




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