Even with that caveat, Zacharias Moussai, the “20th hijacker” was tried in a federal court on charges related to 9/11. So again, the precedent has already exists. And the evidence in this Khalid’s case appears to be considerably stronger then that for Moussai.
Obama? The artists formerly known as enemy combatants (pdf); Here’s the new definition from March 2009:
“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
All Presidents in a war define their enemy. The only novel thing here is these guys don’t fight on behalf of a State or fight to Govern a State (rebels). The US Congress/Executive determined this was an act of war though and are treating them as enemy combatants. Military necessity dictates that you can detain your enemy during a war. You define them so you know who is an enemy, and who is a civilian.
Al Qaeda can never receive the status of POW’s. They do not fight on behalf of a State. That is an undeniable requirement for POW status per the Geneva Conventions. They can be treated like POW’s though. The military does this all the time (Kosovo for instance); treat as POW as a matter of policy, not because you’re legally required too. If the President would have left the military to their own devices, I’m pretty sure they would have done this, but the President went out of his way to treat them otherwise.
A “treatment” of being a POW is it gives you built in due process. In this “war”, they started out with hardly any (none?), but after many years and court cases, while not POW’s, they now have as much due process as a POW would have (tribunal to determine their status, habeas rights, can appeal to civilian federal courts, ect). But alas, it’s too late because the whole situation is tainted.
So, KSM is an enemy combatant and can be preventively detained until the end of hostilities, and/or he can be tried in a military court for any war crimes he committed. But as Richard Parker correctly pointed out, terrorists have previously only been treated as criminals in civilian courts, which thoroughly blurs the laws of war vs. common criminal. It’s unprecedented territory.
Tell me you’re not a 2-lawyer family… 
Although I’m on record here as saying we should try them in our court system, I wonder if this precedent has really been set. These guys were captured under “battlefield conditions”, on non-US soil. The “20th hijacker”, for example, was captured on US soil and so was subject to US police procedures. Soldiers on the battlefield are under no such constraints. Which case or cases are you thinking that most resemble this one?
It’s better this way, really. Like a leper colony.
I’m not sure “battlefield conditions” is accurate, at least for KSM. He was picked up by Pakistan’s ISI in Karachi. We have tried terrorists in civilian courts who were captured under those circumstances. See, e.g., Mahmud Abouhalima - Wikipedia (“[C]aptured by Egyptian police and handed back to the United States, mummified in duct tape.”)
Non-US soil, maybe, but I don’t think you can describe Khalid’s capture as happening on a “battlefiled”. The CIA and Pakistani Intelligence Service captured him when they raided an Al-Queda suspects house in Pakistan.
I’m still flabbergasted by the supposedly liberal memebers of the SD patting themselves on the back while asserting that crimes against Americans are universal, and we can abduct people for it and subject them to criminal proceedings when they have not, in fact, committed any crime in or under our jurisidction. I’m not pleased with existing US law on this, but I think he may walk (eventually, and on appeal) simply because we have no right to try him.
When I support detaining this man, it is not because I think it lawful but because I think there is no law on the matter, and has never been. Whatever his crimes, they lie in the moral realm, but as we cannot let him simply be (because he’ll do it again and again), we’ll simply have to suck it up and live in the unpleasant reality that evil men can and will do everything to evade law, and lock him away.
You can be sure that Obama’s legal people have carefully analyzed the evidence and feel they can get a conviction. To offer this guy a full trial that the whole world can watch, is a great idea. Especially if they can prove him guilty.
I think the chances that he’ll walk are less than nil, but imagine if he did. How long would he last out on the streets of New York City? Eleven seconds? Nine? I would guess that being let out would be about the worst thing that could happen to him.
Assuming we’re talking about KSM, the attack occurred in NY. He conspired with the people who flew the planes. The problem would be with the crime, not the jurisdiction.
I’d go out on a limb suggest he wouldn’t be allowed into our country and we’d deport him.
That reminds me though of the first thing I think of when they go to federal prison and lasting 9-11 seconds before being shanked. The child molesters would welcome a worse evil. (obviously they would be separated and this wouldn’t happen, but that’s just what I picture)
Your saying that just because he wasn’t in the US when 9/11 occured, he can’t be charged for it? IANAL, but that doesn’t sound right.
Also worth noting that he’d been indicted by the US even before 9/11, so presumably the gov’t thought they had enough evidence to convict him not only before he was waterboarded, but even before the attacks he’s most famous for.
Where are you getting this from? US jurisdiction extends over everyone who violates US laws. What makes you think there is no law on this?
I don’t think it was a problem with Manuel Noriega either. As far as I know, he was never physically in the US to commit a crime.
Not during guilt/innocence. If the prosectors don’t bring up evidence obtained through waterboarding (and they won’t - if they didn’t think there was enough evidence to convict him without it they’d never try it in New York), it won’t be relevant to the issue of his guilt on 9/11. I suppose it might come out in punishment, but I’m not too sure on that.
How do you get that? You don’t have to be standing on U.S. soil to violate U.S. law. If you hire somebody to go to the U.S. and murder a federal offical, you’re just as guilty of breaking U.S. law as he is. If the allegations are true, KSM has violated the U.S. Code by conspiring to commit terrorism within our borders and upon our citizens, all without ever having set foot here.
This guy is apparently another example. He was extradited from Australia to the States for US copywrite violations despite never having been to the latter country.
Deport him where? What country would take him?
I don’t get it. Is he really going to be on Saturday Night Live tonight?
I don’t think any country would take him, unless they were going to charge him with crimes under a universal or national type jurisdiction. So he would be confined awaiting deportation. Forever.
I’m just picturing him going on his ‘World Extradition Tour’ where after each trial he his shipped to the next country for the next trial. Unfortunately it was badly planned as he’s starting in a country that carries out the death penalty. That might cut his tour short.
What if he’s nuts? Truly nuts, certifiable. Whatever villain he was, what he is now is a mass of hairy batshit. I won’t speak for you, but I got a hunch that if I was held captive for years by people who hated my guts enough to waterboard me a hundred times, that might send me round the bend. Just given what we already know, what they’ve told us, there’s a pretty decent chance he’s totally mental.
What then?