Earlier this week, Senator Fred Thompson held a press conference on the Supreme Court’s Boumediene decision and the reaction to it from Barack Obama. Afterwards, the Obama campaign dug up a quote from Senator Thompson in which he said that Osama bin Laden should get “due process” as a defense for Obama’s support of Boumediene — which shows that Obama doesn’t understand the decision or due process. Senator Thompson responds publicly and exclusively at Hot Air:
Our Democratic friends are once again scrambling to defend Senator Obama’s latest national security gaffe.
Obama supports the recent Supreme Court majority opinion in the Boumediene decision, which extended for the first time habeas corpus rights to foreign enemy combatants held abroad. The Senator went even further than the Court and said that accused terrorists should be tried in American courts as was Omar Abdel Rahman, “the blind sheik”, who masterminded the first World Trade Center bombing.
Last week, in a call with reporters and bloggers, I pointed out Obama’s folly. The Rahman case demonstrates some of the main reasons why we should not treat enemy combatants as ordinary criminal defendants. Such proceedings potentially compromise results, sources and methods of intelligence gathering. In the course of prosecuting Rahman, the government was compelled to turn over a list of un-indicted co-conspirators to the defendant. That list included the name of Osama bin Laden. We later learned that within ten days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.
My comments apparently caused the DNC to send out an A.P.B. for anything that might help their candidate out of this problem. Their “Googling” efforts revealed the fact that last year I pointed out that bin Laden would have to be given due process when he is apprehended.
Given that our Democrat friends apparently don’t understand what “due process” means for enemy combatants, they probably thought they had found a silver bullet for their candidate. For them, my statement supports Obama’s argument for terrorist trials in United States courts.
Of course, it doesn’t. Under several centuries of British and U.S. law, enemy combatants, especially those who are foreign combatants, do not have the same rights as American citizens. This does not mean that they cannot be given certain rights. In 2005, under the Detainee Treatment Act, Congress provided enemy combatants arrested and held abroad with certain procedural rights, such as the right to detention hearings where they may call and cross examine witnesses, etc. It was the due process to which all such prisoners were entitled at the time of my statement last year.
This is a far cry from a trial in a United States court, which Senator Obama would grant them.
The military tribunal process which the Supreme Court threw out last week provided more “due process” to enemy unlawful combatants than any which preceded it — and certainly more than Obama’s oft-cited Nuremberg trials, which provided neither habeas corpus nor any appeals whatsoever. Barack Obama may want to study Nuremberg before using it as an example, because all it proves is how wrong he is.
Update: Fred expands on the due process available to detainees at Gitmo before Boumediene in a new column at Pajamas Media:
- The right to hear the bases of the charges against them including a summary of any classified evidence
- The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. As Robert’s pointed out, some 38 detainees have been released as result of this process.
- The right, before the tribunal, to testify, introduce evidence, including exculpatory evidence, call witnesses, cross examine the government witnesses and secure release if and when appropriate.
- The right to the aid of a personal representative in arranging and presenting their cases before the tribunal.
- The right to have the government search for and disclose to the detainee any evidence reasonably available to it tending to show that the detainee is not an enemy combatant.
- The right to appeal an adverse decision from the tribunal to the Federal DC Circuit Court along with the right to employ counsel and secure release if entitled to it.
- The right to petition the DC Circuit to remand a detainee’s case for new tribunal consideration if the petitioner comes up with newly discovered evidence
- The right to require the Department of Defense (DOD) to conduct a yearly review of the status of each prisoner including the right to have the Secretary of Defense review any new evidence that may become available relating to the enemy combatant status of a detainee.
- As a part of that yearly review, the opportunity for the detainee to explain why he is no longer a threat to the United States, which could lead to his release.
- The DC Circuit can order release of the prisoner, and the head of the DOD Administrative Review Boards can, at the recommendation of those panels, order release upon an appropriate showing.
It’s worth pointing out that 38 detainees won their freedom through the use of this due process. Be sure to read the entire column for more insight.