N.Y. Terror Trial Muddle

The weekend news reports and talk show discussions are full of viewpoints regarding the announced terrorism trials to be held in New York City. Former New York Mayor Rudy Giuliani remarked on the security threats trials in New York would pose as well as the publicity platform which such trials may provide to the defendants. Meanwhile, the AP reports Senator Patrick Leahy D-Vt, chairman of the Senate Judiciary Committee expressed the opinion, "If someone murders Americans in this country, they should be tried in the U.S" Senator Leahy has apparently missed the Supreme Court interpretation that the prisoners held in Guantanamo are within the U.S. at least for the purposes of access to the federal courts.

Senator Jack Reed, D-R.I., also commented on holding the trials in New York. He mentioned that the terrorists to be tried want to be considered holy warriors or jihadists which could be corroborated by a military commission trial. Reed is quoted as saying: "if we try them before military officers, that image of a soldier will be portrayed by the Islamic community. That's not the image we want."

The real muddle created by pursuing a criminal trial in federal court may be directly connected not to security, or sound bites, but to the legal details of trying the defendants. Senator Reed's comments suggest the desire to see the acts committed by those to be tried as criminal acts amenable to a criminal trial. If we accept that reasoning, we must also consider the due process requirements that a criminal trial requires.

The defendants for the trials in New York are reported to be Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi.

According to the London based Telegraph Mohammed confessed to Yosri Fouda, an al-Jazeera reporter that he took part in the planning for the 9/11 attacks on New York in 2001 (Attacks depicted in the accompanying Pulitzer prize winning photo by Steve Ludlum, New York Times staff photographer). He was captured in March 2003 at a house in Rawalpindi Pakistan. He made his al-Jazeera confession alongside Ramzi bin al-Sibh. Although he allegedly participated in the planning for 9/11, al-Sibh was unable to get a U.S. visa and was unable to directly participate in the attacks. Walid bin Attash is suspected of training some of the 9/11 hijackers while Mustafa Ahmad al-Hawsawi is supsected of organizing the financing for the 9/11 attackers. Ali Abdal Aziz Ali is the maternal nephew of Mohammed and is also believed to have participated in the financing and logistics for the 9/11 attacks. (Analysis of the criminal trial legal muddle continues below the fold.)

18 USC 2331 provides definitions for the following criminal articles relating to terrorism. It appears to be limited in application by the the apparent intent of the participants. The required elements of the definition are that overt acts are intended to coerce a civilian population, or influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping and with the overt acts occuring within United States territory.

Terrorism penalties are prescribed in the following section 2332. The death penalty in this section is allowed only for murdering a U.S. national outside the United States but participation in a conspiracy resulting in murder is not a capital offense.

It would seem that the conspiracy that each of the defendants are accused of participating in cannot result in a death penalty finding. The elements of the offense with regard to intent also would seem difficult to establish and prove. Indeed it is entirely possible that the intent of the attack was simply to cause death and destruction and not necessarily to coerce the population, influence government policy or affect the conduct of the government. It is possible however that the last element, affecting the conduct of the government to withdraw military forces from within the claimed Moslem caliphate may have been a motive.

Before the elements can be proved however, the government will need to establish that the arrests of the defendants took place pursuant to a warrant properly sworn and issued and that the defendants were given the due process protections required under the fourth amendment such as advise of the charges, warnings against self incrimination, access to effective counsel, and opportunity for writ of habeas corpus. During the trial they will also need to be given access to call witnesses and confront all witnesses against them. These may be problematic.

When we look outside the criminal process, we can consider the actions of the defendants in terms of acts of war. If they were acts of war they could be held as prisoners though out the duration of the conflict until properly exchanged. If they were acts of war, and they were combatants, the military forces of the United States would be obliged to kill them whenever or wherever found unless they surrendered or became incapable of defense. If they were acts of war the intent of each individual participant is not subject to review, as each combatant is equally subject to the use of deadly military force against them without regard to their individual circumstances, motives or intent. Violations of the law of war committed during the conduct of war are separately and individually punishable.

Taking all of the above into consideration, it is substantially likely that the criminal prosecutions against these defendants may founder on the legal issues and the administration may come to regret wading into this legal quagmire, especially for the sake of denying jihadist status to the defendants.
Read More. . . .

Blogs United Conference Nov 21

The Blogs United Conference will be held at Christopher Newport University, Newport News VA in the Washington Room of the student union Saturday Nov. 21 from 9 a.m. to 4 p.m. (doors open at 8 a.m.). Continental Breakfast and Lunch come with registration.

Cost is $15.

Invited guests include Sen. Jim Webb, Rep. Rob Wittman, Rep. Glenn Nye, reporters - Ryan Nobles, Anita Kumar, Julian Walker, and Kimball Payne, as well as Scott Hirons of the House Republican Campaign Committee and Greg Scanlon of the Virginia Democratic Party. There is also the possibility of a very special guest.

Topics during the conference include a lessons-learned discussion on the past campaign, opportunities to cover the General Assembly, the balance between being media and bloggers, and a tech discussion on the newest concepts in blogging.

We also will get a legal brief on some of the legal issues facing bloggers today.

Signup is here. Y'all come. Read More. . . .

More charges for Hasan?

Although Michelle Malkin makes an important case for 14 murder charges not 13 against Major Nidal Hasan (shown in the accompanying UK Telegraph photo composite), the Fort Hood jihadi murder suspect, there does appear to be at least one more charge that should be brought by his command against him.

Article 104 of the Uniform code of Military Justice defines the crime of Aiding the Enemy. This crime is committed by any person who, without proper authority, communicates or corresponds with the enemy, either directly or indirectly. Those who violate article 104 shall suffer death or such other punishment as a court-martial may direct. (Complete text below the fold)

The Authorization for Use of Military Force passed by the Congress on September 18, 2001 defines the authority to use military force against those nations, organizations, or persons determined to have planned, authorized, committed or aided the terrorist acts of September 11, 2001.

ABC News reports Thursday evening that Hasan "used multiple e-mail addresses and screen names as he contacted several jihadist web sites around the world." ABC News also reports, "In addition to his contacts with suspected al Qaeda recruiter Anwar al Awlaki in Yemen, authorities said there is evidence he contacted other radical sites and individuals, including some in Europe."

Since al Qaeda has been determined to be an organization that planned, authorized, and committed the terrorist acts of September 11, 2001 and it has been reported that Hasan communicated with Anwar al Awlaki, a recruiter for al Qaeda, it would appear that all of there is evidence to prove all of the elements of the offense described in Article 104 of the UCMJ. Is there any reason that Major Nidal Hasan should not be charged with that offense?

904. ART. 104. AIDING THE ENEMY
Any person who--
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or [protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall suffer death or such other punishment as a court-martial or military commission may direct.

The activities described by ABC News above may also be sufficient for charges of espionage in violation of UCMJ Article 106.:

906a. ART. 106a. ESPIONAGE
(A) (1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, any thing described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court- martial may direct.
(2) An entity referred to in paragraph (1) is--
(A) a foreign government;
(B) a faction or party or military force within a foreign country, whether recognized or unrecognized by the United States
(C) a representative, officer, agent, employee, subject, or citizen of such government, faction, party, or force.
(3) A thing refereed to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance or information relating to the national defense.
(b) (1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless--
(A) the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under subsection (c).
(2) Findings under this subsection may be based on--
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to present matters in extenuation and mitigation.
(c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:
(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.
(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.
(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (Article 36).

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Why Bob McDonnell should and will be Governor

It is really simple. Just click below to see real leadership for Virginia. A vets vet, a citizen's citizen and the epitome of leadership. Hooah.

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Master of Political Art

The final candidate debate in the 93rd House District was scheduled for Wednesday evening at Christopher Newport University. As we noted in our previous post it was expected the Robin Abbott, the Democrat candidate would be a no show and that expectation was fulfilled. Her empty chair spoke pointedly about her unwillingness to discuss public issues in public with the voters she proposed to represent. It also highlighted that a candidate who cannot face her opponent or the public cannot have a claim to be prepared to legislate for that public.

The more important part of the story though is what followed the introductions and notice of the empty chair. On stage was Joel Rubin, long time public affairs interview format host and Delegate Phil Hamilton. One on one, no prepared script, no advance questions, no novices. What the audience received was a tour de force presentation of the art, substance and subtlety of Virginia legislative politics as only Phil Hamilton could deliver it, with clarity, nuance and depth of knowledge.

From health care, to the budget process, to education spending, places to adjust the budget, Hamilton demonstrated effortlessly the value he delivers to his 93rd district constituents, and to the Commonwealth. It is not often that voters get to hear the real truth, that there are no free roads, no easy solutions and no part of the budget is up for grabs. The state budget, all of it, is a sacred cow to some constituency and to some delegate, or the money would not be set aside for that purpose in the budget. The practical art is working with the priorities to fashion a budget bill that can fit within the revenue available and pass both legislative houses. The Phil Hamilton's insight seemed a cake walk.

Robin Abbott should have been there. She missed a master lesson from a legislative master of the political art. The voters of the 93rd should have no doubt that Phil Hamilton should continue to serve as their delegate. Read More. . . .

Abbott AWOL from 93rd District Campaign

In our post more than a week ago, we reported evidence that Robin Abbott, 93rd House District candidate had abandoned her campaign. Now there is more evidence. A press release from Phil Hamilton's (R-Newport News) campaign claims Abbott has refused to participate in a candidate forum at Christopher Newport University scheduled for October 28. That forum, sponsored by the university's Judy Ford Wason Center for Public Policy, and CNU Young Democrats and College Republicans is the third forum in two weeks that Abbott has failed to appear or refused to attend. Compounding Abbott's refusal is the fact that she is a CNU graduate. Read More. . . .

Can Virginia afford a Liar as Attorney General?

In his attack ad, which his campaign labels Ken Cuccinelli's Crony Politics, Democrat Attorney General nominee Steve Shannon claims "Cuccinelli said Hamilton should stay in Office" and cites the Washington Post 8/24/09 and the Daily Press 9/18/09 as sources for his allegation. In fact, Shannon's claim is a lie, and therefore Shannon is a liar. Here is what the Washington Post actually said:

Del. Steve Shannon of Fairfax County, the Democratic nominee for attorney general, called on Hamilton to resign from the legislature.
Shannon's Republican opponent, state Sen. Ken Cuccinelli, weighed in
too with a comment about wishing the events had unfolded differently.
But like other Republicans who said they were disappointed with
Hamilton, Cuccinelli stopped short of a call for Hamilton's ouster. Hamilton
said he considered resigning but decided against it, and he spent the
weekend knocking on doors, apologizing and otherwise battened down in the interest of weathering the darkest storm of his 21-year career in the House.

Just where in the Washington Post's quote does Sen. Cuccinelli call for Hamilton to stay in office?

and this is what the Daily Press actually reported:

So far, Republican attorney general nominee Ken Cuccinelli is the only
statewide candidate who hasn't called for Hamilton to step down from
the House. But this week while discussing Hamilton's ODU ties,
Cuccinelli said it would be appropriate for Hamilton to be removed from
appropriations because of the pending probes.

Just where in this Daily Press piece is Sen. Cuccinelli quoted as saying Hamilton should stay?

As we noted in our earlier post, it appears that Hamilton's opponent paid Shannon $50,000 to attack Hamilton. The only way to respond to Steve Shannon is to use the words made famous by Rep. Joe Wilson: You Lie.

Virginia cannot afford to elect a liar (and perhaps a hired liar) to be the senior officer of the court for the Commonwealth. If his ads were made as statements in court Shannon would be found to be a perjurer. Shannon should be disqualified from any post of trust or responsibility. Virginia beware.

Watch the Shannon ad for yourself taken directly from Shannon's website. Remember the tag line, I'm Steve Shannon, candidate for Attorney General, and I am a liar.

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Have Abbott and West abandoned campaigns?

The Newport News Southern Christian Leadership Conference held its House of Delegates candidate forum Thursday night at the Newport News City School Administration Building. The forum was to feature the candidates for the 93rd and 94th districts and was a followup to a similar forum held in April 2009. At the April forum all of the candidates agreed to the followup scheduled for Thursday night. To the surprise and consternation of the nearly 100 voters who crowded into the School Board chamber, neither Robin Abbott, Democratic candidate in the 93rd district, nor Gary West, Democratic candidate in the 94th district showed up for the forum. Their incumbent opponents Del. Phil Hamilton and Del. Glenn Oder did appear at the forum and took questions from the moderators, Bill Thomas of Hampton University and Kathy Barnstorff of NASA Langley and from the audience. Also in attendance were members of the Newport News City Council, Dr. Pat Woodbury and Tina Vick.

Given Abbott and West's previous commitment to attend the forum, the large audience and its sponsorship by the SCLC it is difficult to attribute the failure of both Democratic candidates to appear to anything but their abandonment of their election campaigns. Read More. . . .

Obama says he will end Don't Ask Don't Tell

The Wall Street Journal is reporting Saturday night that President Obama has pledged to end the ban on gays serving openly in the armed forces. Speaking at the annual dinner of the Human Rights Campaign, a advocacy group for gay rights, Mr. Obama was quoted as saying: "I will end "don't ask-don't tell.'" No time frame was associated with his promise.

While Mr. Obama made the first person pledge, don't ask-don't tell is not a policy malleable by the president, it is a law which requires action by the Congress to change. Even if done at the request of the president, it would never be accurate to say the president changed the law, only that Congress changed the law. The Whitehouse lists a livestream link to the speech audio but the link does not appear to be working. (Accompanying Getty Image photo of Pres. Obama and TOTUS addressing HRC link from online.WSJ.com) Read More. . . .