Wednesday, February 16, 2011

Apparently, Rummy didn't bone up on Nurnberg...

Rumsfeld seeks to throw out the Padilla case.  That is the lawsuit that claims that harsh interrogation tactics were used, and violated his civil and Constitutional rights.  Padilla was the test case for the "enemy combatant" defense of holding even American citizens, and held without charge for four years, interrogated with methods that under most circumstances would be outlawed within the US.  Particularly troubling in the case, was the stripping of rights due to the "unlawful combatant" nomenclature that was used to justify the holding without charge, which under most circumstances would have violated his civil and Constitutional rights. 

The defense?  Folks were only following orders.

Presidential immunity cited regarding 'enemy combatants'Any injuries suffered by Padilla were the result of President Bush’s authorization that he be treated as an enemy combatant, Rumsfeld’s lawyers say. The president enjoys complete immunity for those actions, they say, so the suit must be thrown out.

“Military detention is a normal and inevitable incident of an enemy combatant designation,” Rumsfeld’s lawyers argue in their brief. Padilla’s assignment to the Charleston brig was “routine and appropriate.”

Save, in this case, Rumsfeld did more than just follow orders. He crafted the programs and gave the orders himself. He was center to the legal framework of the justification of stripping the amenities of US citizenship and its rights and responsibilities from Padilla in his holding without charge. While Rumsfeld would like to throw the cloak of Presidential immunity over himself, he seems to forget that "Befehl ist Befehl" worked less well than folks had expected none too long ago.

Let's be clear.  Padilla was pretty much guilty of conspiring to create a dirty bomb. The evidence was fairly damning, and his connections checked out.  He was not a good man, and by and large, if he'd been more competent and law enforcement less on the ball, he might have actually gotten his wish and performed a horrendous act on our soil. The thing is, we have tried terrorists in this country before.  Both foreign and domestic. ADX Florence  holds several convicted terrorists, some more successful than Mr. Padilla.  Mind you, not held, but convicted.  Our justice system can handle trying even difficult cases, and the lawsuit that Rumsfeld is trying to deflect comes because folks wanted shortcuts and work arounds difficult points of law, as opposed to doing the job right the first time.

Ramzi Yousef-Captured in Pakistan, convicted for role in Bojinka plot in 1996, convicted for role in 1993 WTC bombing, sent to ADX Florence.

Wali Khan Amin Shah-Captured in Manila, convicted for role in Bojinka plot, sent to ADX Florence

Abdul Hakim Ali Hashim Murad - Captured in Manila, convicted for role in Bojinka plot, sent to ADX Florence

Eyad Ismoil - Captured in Amman, extradited to US, convicted of role in 1993 WTC bombing, sent to ADX Florence

Khalfan Khamis Mohamed-Captured in Cape Town, convicted of 1998 Embassy bombings, sent to ADX Florence

Mahmud Abouhalima-Captured in Egypt, convicted of 1993 WTC bombings, sent to ADX Florence
Mohamed Rashed Daoud Al-Owhali-Convicted of 1998 Embassy bombings, sent to ADX Florence
Mohammed Odeh-Captured in Karachi, convicted of 1998 Embassy bombings, sent to ADX Florence
Mohammed A. Salameh-Convicted of involvement in 1993 WTC bombing, sent to ADX Florence
Mohammed Ali Hassan Al-Moayad-Captured in Germany, convicted of federal crimes related to funding Hamas, sent to ADX Florence

All convicted of Federal crimes.  All captured and convicted. The difficulty being, that Rumsfeld and the Bush Presidency did not want to rely on law enforcement to do their job. They instead wanted the blunt force operation of the military to make things "easier" for capture.  The problem being, while the military is fantastic at some operations, preserving a chain of evidence is not a particular strong suit.  The matter of capturing and convicting terrorists comes down to a matter of law enforcement, and there come certain restrictions that the military does not have. Which is why it seemed the attractive option.  The problem being, that if you simply want to kill terrorists, then the military is your tool. If you want to try and convict terrorists, it's another thing entirely.  The Bush Presidency, and its staff were of two minds on the matter, wanting to have victories in court, as well as victories on the ground.  Rather than play by the rules, they looked for workarounds on the law, and for shortcuts.  The problem being, if you want to convict folks, then you really can't take those shortcuts.

The issue at hand isn't that Padilla wasn't a bad man.  He was. But, we extend human rights and our system of justice to everyone, and in looking to work around these restrictions, Rumsfeld and his team were personally knowledgeable of their actions, and were cognizant of the legal ramifications enough that they ordered the Justice Department to produce legal memos to justify the actions that were taken. Not to look at precedence and work from a solid legal position, but to lattice a framework to justify actions already taken.  Under orders or not, Rumsfeld and others named in this case, were fully aware of the shakey legal ground, and I hope to the 10,000 Hells that this case goes all the way, because we need to draw a line in the sand against those who use "orders" to throw away our basic values and foundations of our law.  That this asinine legal morass threatens to throw out many cases only compounds the sin, because if we'd handled the mess with attention to detail, and according to law, instead of looking to shoehorn law and justifications for things already done, we would have many more names in ADX Florence, held without being martyrs to a cause, and held with justice being on our side.

In order to take the moral high ground, we must actually occupy that territory first, and damned if this case needs to be taken through, because this mess has sullied our name, our nation, and our system.  It threatens us as much as the dirty bomb that Padilla hoped to build, and just as corrosive and dangerous to our systems of governance.

Crossposted to The MotleyMoose...

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