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Why is a terrorist, an UNLAWFUL enemy combatant, in a civilian jail/court?

Many people are wondering why “Captain Underpants” is in the civil court system.  If they aren’t, they should.

I thought, my bad, that terrorism was now a matter for the military and not for the criminal justice system.  Guess I was wrong.

That is what you get when a former terrorist’s defense attorney is now the Attorney General.

But the problem is deeper than just Eric Holder.

First, a history lesson.  Nathan Hale was a spy for the Rebellion during the Revolutionary War.  The British caught him, tried him in a military show trial and killed him.  Later, the Rebellion caught Major John Andre in civilian clothes, tried him in a military show trial and killed him.  Precedent established before the Constitution.

During the Second World War, the Germans had an espionage program in the United States called “Operation Pastorius” with eight members of the team.  All eight members were German born but had lived in the United States before returning to German between 1933 and 1941.  The goal was to destroy power plants and ALCOA’s plants in New York, Illinois and Tennessee.

They were caught, tried by a military tribunal and sentenced to death.  The Supreme Court affirmed the sentence and authority of the military tribunal’s decision in “Ex Parte Quirin” in late July 1943.  Six of the eight were executed by electricution, the remaining two spared the chair by President Franklin D. Roosevelt due to their cooperation in capturing the others.

The cool part, all were caught by 10 July 1942, SCOTUS issued their decision on 31 July 1942, the six were whacked on 8 August 1942, but the full written decision didn’t come out until 29 October 1942.  Swift justice, huh?

OK, so precedent set, right? 

I thought so.  It makes sense to me that it would be.  Unlawful combatants have been determined, again, as those who fight against the United States without the uniform of a foreign military.  Just like John Andre before them, the six met the same fate.  Why shouldn’t those in Gitmo?  Why shouldn’t “Captain Underpants”?

Because the United States agreed to the 1949 Geneva Conventions and thus made them part of U.S. municipal law.  So what?  Well, that led SCOTUS making a decision in 2006 (Hamdan v. Rumsfeld) that the rules regarding unlawful combatants did not fall within the Geneva Conventions nor the Uniform Code of Military Justice. I am not an attorney, not do I pretend to be one, but this ruling has been received as more broad than it should be applied.

Why?  SCOTUS overturned the methodology applied by President Bush and his administration.  The problem, simply put, is that the Executive Branch cannot assert such authority without having specific powers granted by Congress during a time of war.

My solution is simple.  Declare a state of war against Al-Qaeda and related organizations.  The precedent is set by the declarations against the Barbary Pirates over 200 years ago.  The Congress can establish, or all the President to establish, military tribunals under the UCMJ for trial of unlawful combatants.

All the 5-3 decision in Hamdan did (Chief Justice Roberts took no part in this case) one thing, which was strike down the process as flawed.  Congress did not act to correct it.

Failure to protect its citizens.  That remains today.

My understanding is that “Captain Underpants” can currently be tried ONLY in a civilian court.  There is no standard for determining and trying “unlawful enemy combatants” in the United States.

John Andre, Herbert Hans Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, Richard Quirin and Werner Thiel never would have been executed for their dangerous acts against the United States if those acts were committed in 2009.

Am I alone in thinking that Congress needs to correct this?


  • Dec 29th 200912:12
    by Topher

    It’s not quite so simple. There’s one huge difference between Al Qaeda terrorists and German spies: the latter was employed by a recognized nation-state. From a legal standpoint, Mr. Abdulmutallab is little different from a member of a street gang–he’s just more ambitious and better funded.

    Declaring a state of war against Al Qaeda would give them de facto recognition as a state, since under international law war is only between states, giving them a huge boost in credibility.

    Now, what should have happened was a formal declaration of war against Afghanistan in 2001. Then, until the signing of a peace treaty, any entity, such as Al Qaeda, working on behalf of the former Afghan government could be treated as an unlawful combatant. But since we don’t have that, Abdulmutallab is legally nothing more than a common thug.

  • Dec 29th 200913:12
    by Administrator


    Did declaring war on pirates give them recognition as a state? And if so, what is the problem? Boost in credibility amongst those who think the same as them would allow us all the more reason to solve the problem.

    I like things in black and white. It doesn’t HAVE to be complicated, many choose to make it so.

  • Dec 29th 200913:12
    by Topher

    The pirates were operating under the protection of the quasi-independent Barbary States (Morocco, Algiers, Tunis and Tripoli) and Congress had attempted to pay tribute to the states to get them to stop. Britain and France recognized them as states already, so a declaration of war was appropriate and did not give them any additional prestige.

  • Dec 29th 200915:12
    by Administrator


    Valid points. We, the USA, did pay tributes for a while so We must have recognized them as a state. So, I agree with you there. My point on declaring war on Al-Qaeda would be that it might build their support, but it would equally build our resolve….if not exceedingly so. I’d rather see us take on an enemy with the seriousness and tenacity that we did during WWII than to continue to pussyfoot around as if to swat away at insects.

    Declaring war defines who the enemy is, who their allies are, and who is with us. Cut out all of the cancer cells, don’t leave some behind to create another cancer.

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