Bin Laden’s day in court
Examiner.com’s Bill Sammon asked Barack Obama’s foreign policy advisers if a captured Osama bin Laden should be allowed to appeal his case to U.S. civilian courts. Sammon wrote:
Sen. John Kerry and former White House counterterrorism czar Richard Clarke said bin Laden would benefit from last week’s Supreme Court decision giving terrorism suspects habeas corpus, the right to appeal their military detention to civilian courts.
“If he were to be brought back,” Clarke said of bin Laden, “the Supreme Court ruling holds on the right of habeas corpus.”
Kerry, who applauded the Supreme Court ruling, said it will be carried out by whichever candidate wins the presidency.
“The Supreme Court of the United States has ruled that they have those rights,” he said. “If John McCain were president, he would have to give them those rights.”
John McCain’s senior foreign policy adviser, Randy Scheunemann, said bin Laden should not be extended those rights, nor should they be offered to the terrorism suspects being held at Guantanamo. He pointed out that giving them access to the federal courts was “fraught with danger” and would “likely to make America less safe.”



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back to top39 Comments to “Bin Laden’s day in court”
Rush was talking about this today. Quite a Pandora’s box was opened with the SCOTUS decision. Could you imagine the danger to the lawyers on either side? The prosecution attorneys would need body guards to protect them from the terrorists and the defense would need protection from over-zealous patriots (or even everyday Americans). And whichever way the jury decides (if they could even find jurors willing to sit), they would need to hide as well!
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For bin Laden, I can only imagine what “a jury of his peers” would look like. I envision a bunch of men with long beards and bombs strapped across their chests . . .
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Peter L:
Sometimes life is difficult. That doesn’t mean you abandon your values when it gets tough.
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The government says lots of things. It is not too much to ask it to proove them, especially when it comes to issues of freedom and life or death.
Surely the government could proove ObL’s guilt beyond a reasonable doubt. It might take a couple of appeals, but surely they could do it. Couldn’t they???
And isn’t that exactly what makes us different from him???
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If I captured Bin Laden, I certainly wouldn’t bring him to any US territory until I had a completely air tight case against him.
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Don’t we have bin Laden on tape taking credit for 9/11? Sounds like a confession to me. I’m not worried about a habeas petition at this point. There are procedures in place for complex litigation and trials take time. It’s not as if they bring him here, someone drafts a habeas petition and a judge has to decide just like that whether to let him go or not. (I am surprised that there was concern for the attorneys, Peter L. I’m impressed.
) Juries can be sequestered, too. There’s always the possibility that they would set up a courtroom in a secure area. (You may remember that District Court Judge Herbert Stern tried a case in Berlin after a plane hijacking at Tempelhof Airport back in the day.)
Wouldn’t it just be wiser for the Democrats who control Congress right now to get on the stick and pass new legislation and/or fix the problems with the MCA? Surely they have the same concerns as Peter L. As I understand it, McCain planned to write a bill and submit it post haste. That would force the Dems to act. They’d look rather bad if something did happen in the interim. (Not just on this issue, but on so many more, I’m really tired of Congress adopting the position that it will wait until after the election. Some things need to be done now. This is one of the reasons so many people are sick of them.)
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We have the greatest legal traditions and practice in history. It is within our grasp to come up with a process we all agree is constitutional.
What’s the point of having process at all if it’s not constitutional process? We might as well put him against a wall or, better, fly a transport jet full of New Yorkers to Afghanistan.
Besides, interviews in the Pentagon established a long time ago that the standing orders are to shoot, not capture.
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NJL – I realize attorneys are people too, even the many who give the profession a bad name.
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Peter L., truth be told, I’ve never read such a comment anywhere. Your’s was a first. I really am impressed. People usually worry about the jury, not the lawyers. You are right that they would be at risk. Can you imagine what it would be like for the guy who defends bin Laden? Would he be invited to the neighbor’s barbecue or would people conclude there was something wrong with him just for defending a terrorist.
I have to admit I’d like to see bin Laden forgotten in a supermax prison, which would require a trial. The cost would be astronomical, but it is what sets us apart from “them.”
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Ah, the heck with the Constitution! That’s a quaint anachronism that is no longer useful in modern day America. We just can’t afford that luxury any more.
And while we’re at it, down with the Supreme Court!
They’re nothing but trouble in peace time, much less during war time. Lets just make our military officers the judge, jury, and executioner. What could possibly go wrong?
The whole “democracy” thing is over-rated anyway.
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Can we quote you, Anlir?
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William Ayers is an admitted terrorist who regrets he did not do more violence. He is an American citizen with Constitutional rights and he beat the rap in our system (though he was guilty). So he later was able to help Obama launch one of his early campaigns and he remained a “friendly” associate of the Democrat nominee for President of the USA.
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. . . bin Laden would benefit from last week’s Supreme Court decision giving terrorism suspects habeas corpus . . .
Trials always benefit society, never the defendant. The word “trial” means ordeal. A defendant does society a (compelled) service by undergoing trial. The reason we conduct trials instead of dealing withe the accused in other ways is for our own good, not the defendant’s. We actually can be grateful for occasions to exercise the rule of law and admire our own moral tidiness and confidence. Over centuries and centuries, experience has proved that the trouble of a trial is worth taking.
Many Americans and their right-wing pastors, clinging to nothing more than God and the Second Amendment, would be satisfied with lynching, but their opinion doesn’t matter and is not worth considering.
If Bin Laden is captured alive, I’d like him to suffer the most elaborate, scrupulous, and thorough trial that American lawyers and judges are capable of staging. I want impeccable rulings from appeals courts at every stage. Habeas corpus is just the beginning. Yes, I want the government to show that Bin Laden’s detention is lawful — habeas will be our pleasure! But I also want the government to provide brilliant arguments about the admissibility of evidence and the applicability of laws, Etc. After all, if we’re putting our ultimate monster on trial, why not do ourselves proud?
Of course soldiers could just shoot Bin Laden where they find him. That part’s up to the president, I suppose.
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William Ayers is an admitted terrorist who regrets he did not do more violence.
Ayers was involved in destruction of property, but not attacks against persons, so he didn’t fulfill the US government’s definition of “terrorist.” Some members of the group he was associated with blew themselves up trying to make a bomb, but did not cause personal injury to others.
Ayers disputes a reporter’s account of his regret over not doing “enough.” Ayers says he didn’t do enough to stop the Vietnam War and he condemns all forms of terrorism. Ayers makes a reasonable claim. Joel Mark would like to put different words into Ayers’ mouth, but cannot do so honestly and uncontentiously.
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We actually can be grateful for occasions to exercise the rule of law and admire our own moral tidiness and confidence. Over centuries and centuries, experience has proved that the trouble of a trial is worth taking.
In centuries past this might have made sense, Scroop, but we sadly live in a much different world today — a world where guilty people take advantage of our system of government through loopholes and technicalities (and the leftists in this country, along with naive persons on the middle and left, enable them to do do).
Bin Laden needs to be shot where they find him.
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Scroop Moth’s posts are telling. He wrote wrote: “Trials always benefit society, never the defendant.”
In the context of this Supreme Court decision discussion, sure they do! The defendant gets the “innocent until proven guilty” treatment from our lawyers, judges and juries, and that is a benefit to an enemy combatant caught in the act of murderous terrorism on the field of battle.
This reduces the war on global terrorism to a mere law enforcement issue which was the failed policy of the Clinton administration.
This forces evidence out in court that can compromise intelligence (a key instrument in the war on jihadist terrorism) ad put more of our lives at risk. This burdens our military excessively. They should be acting under the command of their officers but leftists want them to be beholding to all the hoops, hurdles and angles that lawyers put law-enforcement through. Lawyers should not write the terms for our military. This was is NOT a mere law enforcement issue. It is a war and the left does not realize it.
Scroop Moth wrote; “Over centuries and centuries, experience has proved that the trouble of a trial is worth taking.”
NOT in war! This a an unprecedented breech of wartime policy, but at least Scroop Moth admits that a trial is indeed “trouble.” But it is “trouble” he/she wants for us and our side.
US enemies in wartime have never been coddled so much and it is to the risk and expense of our military and our legitimate interests.
Did you read all the blessings Scroop Moth wants for bin Laden? Appeals courts, trials after trials, etc. “Habeas corpus is just the beginning,” Scroop said. This is all extremely expensive and potentially endless. Scroop Moth wants more burden on an extremely complex system that is already over-extended. This is a huge boon to more and more lawyers. Scroop Moth wants theater! Very expensive theater. Meanwhile, justice delayed is justice denied.
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Why does the left bend over so far backwards to give terrorists and our enemies (like Saddam) every break they can? This trend often comes with double-talk to cover themselves, but I recall a thread from a couple days ago that astounded me how often posters from the left were trying to absolve Saddam (or at least minimize his evil as much as possible) from whatever stigma those right wingers were putting on him. It was sick.
It was clear to me that our left hates our right much much more than our enemies who want us dead.
The left tend to look at our enemies (including the Saddams and bin Ladens of the world) with a “innocent until proven guilty” mindset. Thought Saddam’s guilt has been proven beyond doubt, the left still minimizes it at every turn. They constantly question established facts as if they were his lawyers.
Again, William Ayers was a vicious terrorist and a US terrorist, and he got off completely. Our system dropped the ball.
And notice how Scroop Moth also rushed to the aid of the vicious and hateful terrorist, William Ayers. Leftist often show on these threads not merely how much they hate the right, but how far they will bend over backwards for our most vicious, evil and dangerous enemies and criminals.
Ayer’s attacks were indeed against persons who were in public buildings in some cases. And people were blown to bits making bombs with which to use in public, regardless of who else might be there to get blown up.
Scoop’s willingness to carry water for terrorists is unconscionable.
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Joel wrote: “Scoop’s willingness to carry water for terrorists is unconscionable.”
This reminded me of a memorial statue on one of the Civil War battlefields. My nephew stood in front of it when I took the picture, so I don’t know the person’s name, but the statue was erected to honor a person who drew water one night on the battlefield and served the injured both sides, North and South.
Due process is a tough sell on this board sometimes.
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This is crazy. Any US soldier who sees Bin Laden in the field is authorized to shoot to kill with no questions asked. But if Osama gets lucky and is captured, THEN we have to have a trial? Absurd.
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NJLawyer, I have heard that story from the Civil War and it moses me deeply. Such personal compassion is so commendable. I also believe in Jesus’ call to love our enemies. Still, discretion must come into play.
I would give Saddam a cup of water too if he was thirsty or injured and the danger he represents to others is rendered to zero.
But the points I made in previous posts stand. We are at war. And there is a point wherein we put ourselves in danger by carrying water (a metaphor, NJLawyer, and I hope you see what I mean by it) for our enemies.
It becomes a matter of discernment when this water carrying is beneficial & fair compassion and when it puts the innocent in danger or perverts justice. We may disagree on where the line is drawn but I hope you can admit that there IS indeed a line. It is my opinion that leftists have often gone over that line in giving the benefit of citizenship and EXCESSIVE due process to foreign enemies on the field of this war, which puts the innocent in more danger. I agree with Scalia who said that American lives will certainly be endangered or lost by the recent decision.
There is a time and way to love even our enemies but not at the expense of the innocent. I also believe that ruling authorities are ordained by God (Romans 13) to wield the sword against evildoers, in order to protect the innocent. If those authorities abuse their power, they should be held accountable, but there must be a means to protect the innocent. I just think that the evildoers can get so much benefit of the doubt that the innocent are unduly endangered.
We can disagree on where the line is, but I want to know if you think there is a due process line over which becomes a step too far in protecting the rights of jihadist terrorists?
I hope I have not misunderstood you, but this post is more a question than anything.
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We should let John M have the last word. I think he said it best.
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Under no possible understanding of the US Constitution do any due process rights apply to foreign enemies on foreign soil attempting (and succeeding)to kill Americans.
The real Pandora’s box of absurdities Justice Kennedy has opened with his judical power grab from the Congress and President who are Constitutionally authorized to conduct foreign policy has no end. Implicit in his reasoning is that American citizens are subject to the Sharia law of Iran on the same basis as foreign Jihadis are subject to our Constitution.
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This is a fool’s errand. Bin Laden will never be taken alive. He has issued standing orders to his retinue that they should kill him if capture looks inevitable.
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Well, here’s a hypo, Joel Mark, and I hope this answers your question. Let’s say our guys find bin Laden and his guys don’t get to him first. Depending on the situation, and assuming the battle is over and our guys are in total control, would you just walk up to him and put a bullet in his brain? I don’t think I would (any more than we did with Saddam). I would put him on a transport plane and bring him here, set up a courtroom right in the supermax (to make security easier) and have a trial. No cameras, but reporters because our trials are public. (This could be eliminated by having the habeas problem fixed in the MCA, and that is my preference.)
Would I lose sleep over a soldier walking up to him and putting a bullet in his brain? No. Not an ounce of rem, not even a doze.
The decision last week provides a means for those who have literally done nothing wrong with a way out of their predicament, and I think that’s fundamentally fair. Here’s a question: if they round up a rug seller who is really just selling rugs, why should he stay in Gitmo for the rest of his life? If he has guns in those rugs, that would be different. You guys seem to think that a judge will just let these people walk. I don’t think a judge would do that.
Fix the MCA. That way Kennedy’s side and Scalia’s side will both be happy.
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JOHN M: But if Osama gets lucky and is captured, THEN we have to have a trial? Absurd.
Why would capture be lucky for Osama? He surrounds himself with people pledged to kill him to prevent capture.
I suspect we prefer killing him to capturing him is to prevent him from talking about things that embarrass us.
Far from “absurd,” the military is proud of its rules for killing and capture and treatment of prisoners. Many officers have expressed outrage over the disrespect that the White House has shown for our military traditions.
You are a smart guy, John M., and fully capable of figuring out the reason we can kill a combatant in the field but not a prisoner in custody.
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JOEL MARK: giving the benefit of citizenship and EXCESSIVE due process to foreign enemies on the field of this war, which puts the innocent in more danger.
Joel, what is a straw man? The Supreme Court didn’t say this and nobody advocates it. Habeas corpus lets a prisoner complain that his detention is unjust. Why should that be a problem? Courts don’t require the military to do anything that is impractical. “We can’t do that right now,” always works (for the moment, if it’s true).
When you say, “NOT in War!” you sound like a fundamentalist shouting “Not during Ramadan!” Since the WOT may not end in our lifetime, you are saying that our courts will never have power to review the detention of designated combatants. One of our branches of government is irrelevant. By your standards, Joel, if elected president, I could designate you an enemy combatant, arrest you in Wisconsin, and do anything I wanted to you, anywhere on earth, regardless of your citizenship, and the courts could never order me to offer an explanation for your detention. According to a former secretary of the army, such are the known circumstances of a third of the Guantanamo prisoners.
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I’d give bin Laden a cup and water and then shoot him.
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NJ Lawyer,
I think I already made it clear that IF all things were secure, I would give an enemy a cup of water. I would take them into custody too. But I don’t think your question answered my points and questions. Bin Laden shouuld not be placed in the US justice system with the same rights as a US citizen.
And I do think there are US judges who would make a point to drag out all the legal requirements and presumed evidence in the world no matter how compromising it was to our cause or our military or our intelligence, and if we withheld anything, that judge would let him off. We have judges who would presume bin Laden as innocent until proven guilty.
The Supreme Court decision was wrong and dangerous.
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We have judges who would presume bin Laden as innocent until proven guilty.
Duh. That’s what a trial is — the presentation and weighing of evidence to prove guilt beyond reasonable (though not fanciful) doubt. In our country, trials are real events, not shows.
As matters presently stand, the US has the option of choosing to prosecute a defendant like OBL either in a US District Court or before a military tribunal using the standards of courts martial.
JOEL MARK doesn’t understand that due process is a gift we give ourselves, because we’re Americans, not a concession we make to defendants. This gift enables us to take pride in our work product. Joel’s stumbling block is thinking that due process is a sacrifice rather than a standard that all citizens have a right to see upheld.
A trial serves society’s needs and purposes, not the defendant’s. Contrary to misconceptions, a trial is not a criminal’s “day in court” or chance to tell his side. OBL would be gagged if he tried to grandstand any District Court in the country. He won’t get to talk about Jihad or Israel or The Great Satan.
The Supreme Court decision was a blessing because we will lose the war on terror as long as it’s divorced from our tradition of law. We must not allow the US to become a terror state. Long after Al Qaeda is history, we will face terrorits who possess far more lethal means than airliners full of kerosene. These people are not yet born. Their greatest weapon against us will be the damage George Bush has inflicted upon the relationship between the American state and its people.
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P.S. JOEL, you don’t have to want to “give” OBL due process or think he “deserves” the rights of a citizen, but you must consent to my right — any citizen’s right — to insist that our government bind itself to due process whenever reasonable. Please don’t violate this principle of consent. The founders based our society on it, and George Bush has violated it. Let’s not have a state of terror.
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Scroopy writes: “OBL would be gagged if he tried to grandstand any District Court in the country. He won’t get to talk about Jihad or Israel or The Great Satan.”
This is true. I’ve seen that happen with “lesser” terrorists. Gagged, shackled to a table, removed. No judge would tolerate that.
I’ve never thought of due process as a “gift” but that’s a good way of describing it. Nor have I heard of the concept of “excessive” due process, and I’m having trouble relating to it. You either have due process or you don’t, and the Supremes last week said you don’t under the rules outlined in the MCA.
I understand the emotions involved where Osama is concerned. But it is at those moments when you step up to the plate, so to speak, and prove you are better than the scum you who has done you wrong. We are a nation of laws, we operate under the rule of law, and you are saying you would repudiate the very thing this country stands for, the very thing on which it was founded.
It’s not how we operate. We go through the “motions,” through the “procedures” to show that we have the evidence. We prove our case. Maybe because I’ve worked with judges, but I can’t imagine the federal judge who would “let him off.” The only suggestion I can make would be that you should give the Spencer Tracy movie about the Nuremberg Trials a looksee. There really is no difference between the Nazis and the jihadists when you think about it. Had we taken Hitler into custody, he would have been put on trial as we did those we did catch.
I understand the concerns with the majority opinion from last week, and this can be remedied by Congress. (Indeed, suggestions have been made to create a terrorist court, as the Congress has the power to create inferior courts.) We often tell our non-Christian friends here that they should not cherry-pick the Bible and pull out a few verses. I submit to you that you can’t do that to the Constitution either. For lack of a better phrase, we are just better than they are, so I don’t understand why you want to become them. What you are suggesting is what they would do to you — a kangaroo court.
And I know you are angry with me right now, but watch that movie.
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Nothing in the SCOTUS opinion grants anyone at Guantanamo a “right” to petition the federal courts.
If Congress had instituted a statutory scheme that provided a substantive equivalent, then that would be sufficient. Instead, Congress enacted a scheme that they knew would not pass muster.
This entire mess at Guantanamo is a mess that Congress has created. The current system permits our military to use evidence procured by torture, and provides no basis for the accused even to know whether such evidence is used against him.
They do not have a “right” to habeas. But they do have a right to a functional equivalent thereof, including the right for their cases to be adjudicated by an impartial fact-finder.
Is it any wonder that the officers in charge of running the current system keep quitting? Even seasoned military prosecutors have decried the fact that the current system makes a mockery of the US and its military.
And yet the assortment of evangelicals who make up WorldMag’s talkbackers see few problems with it.
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Excuse me! The President and the Legislature both take the same oath to uphold the Constitution. If the three branches are co-equal, where does do the Supremes get off telling another branch that their actions are un-constitutional? Both Jefferson and Lincoln told the court to take a hike and Bush should do the same.
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Amen, Zinger.
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Judicial Review, see Marbury v. Madison. It is the job of the Supreme Court to interpret the Constitution.
You ought to be saying to your legislature that it ought to pass new legislation. Kiyoshi is correct that Congress itself created this mess. I am at a loss to understand why so many here are so upset with this decision when there is a remedy available.
Why don’t you ask why the Congress passed a law that didn’t pass constitutional muster?
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NJ LAWYER: Why don’t you ask why the Congress passed a law that didn’t pass constitutional muster?
As we all know, Democrats are cowards. After years of irresponsible passivity, Congress partly ratified Bush’s detention policy and sought to overrule contrary Supreme Court decisions in two laws that Republicans rammed through with little deliberation in late 2005 and October 2006.
Congress has taken shelter in the Republican propaganda expressed by JOEL MARK: US enemies in wartime have never been coddled so much Justice Roberts even repeated this casuistry. The fact is, NJ LAWYER, no prisoners in any other war have been held as long as our prisoners in this one. Coddling! Furthermore, the detention of non-combatants has never been as error-prone as it is in the war on terror, with even the secretary of the Army claiming that a third are innocent.
Since JOEL MARK isn’t speaking for himself, can anybody explain how Joel can claim we’re “coddling” people whom we are holding potentially for life without a fair opportunity to assert their innocence and mistaken identity?
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Scroopy, they don’t believe us on this issue, and you know, when you and I agree, they should take a second look, if you get my drift. There’s something there when two people (you and me) who are usually on opposite sides agree. Perhaps I’ve just not been able to explain well enough why it is so important to give people a hearing.
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Yep, NJL, no one can make sense of your abstruse legalese:
Don’t we have bin Laden on tape taking credit for 9/11? Sounds like a confession to me. I’m not worried . . .
Wouldn’t it just be wiser for the Democrats who control Congress right now to get on the stick and pass new legislation and/or fix the problems . . . This is one of the reasons so many people are sick of them.
I’d like to see bin Laden forgotten in a supermax prison, which would require a trial.
You either have due process or you don’t . . .
The decision last week provides a means for those who have literally done nothing wrong with a way out of their predicament, and I think that’s fundamentally fair.
You guys seem to think that a judge will just let these people walk. I don’t think a judge would do that.
We are a nation of laws, we operate under the rule of law, and you are saying you would repudiate the very thing this country stands for, the very thing on which it was founded.
You don’t realize it, NJ LAWYER, but you’ve started a war. The Republicans and Al Qaeda are fighting over which of them gets to kill all the lawyers first.
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Don’t get all excited, Scroopy. I’m not switching parties.
Although, I suppose they could kick me out.
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