Conservative media attacks of detainee trials undermined by support from ret. military brass, conservative scholars, and statesmen


Following Attorney General Eric Holder's decision to hold criminal trials for five Guantánamo detainees, conservative media figures have criticized the decision as a "disaster," "impossible to put into perspective" and -- in the words of Rush Limbaugh -- done only to "satisfy the rabid radical far left that hates this country." However, these conservative media figures are at odds with numerous retired generals, admirals, and legal experts, as well as numerous conservative scholars and officials, including Grover Norquist, Barry Goldwater, and David Keene.

Conservative media criticize criminal trials for Guantánamo detainees

Limbaugh: Criminal trials are a "disgusting travesty." On November 13, Limbaugh opened his nationally syndicated radio show by asserting: "This, my friends, is even more insidious than you know. This is more insidious than you can possibly imagine. I'm talking about bringing these terrorists up from Gitmo and trying them in New York City." Limbaugh later referred to the decision as a "disgusting travesty perpetrated here by Barack Obama." Limbaugh further stated: "All of this is being done to satisfy the rabid radical far left that hates this country, that hates George W Bush, that hates the U.S. military." Limbaugh also said that "your country is going to be on trial and your country will likely be found guilty." [Premiere Radio Networks' The Rush Limbaugh Show, 11/13/09]

Gaffney: "I think this is a disaster." Frank Gaffney, president of the Center for Security Policy and a Washington Times columnist, commented that trying Khalid Shaikh Mohammed in the U.S. justice system would "make this a much more dangerous country than it is today." Gaffney also said: "I think this is a disaster. What the president says is going to be exacting justice I think is going to be anything but, because what will happen, the moment Khalid Shaikh Mohammed and his co-conspirators, or fellow travelers, arrive in the United States is they will be imbued with a host of constitutional rights that it's almost unimaginable for most Americans that we're going to be giving to our enemies, people sworn to our destruction." [Fox News' Fox & Friends, 11/13/09]

Kilmeade on trials in NYC: "It's impossible to put that in perspective." On the same segment with Gaffney, Fox & Friends co-host Brian Kilmeade asked: "Can you imagine here, where New York City is still a terror target, and then you bring the mastermind of 9-11 here?" He added: "It's impossible to put that in perspective, I think." [Fox & Friends, 11/13/09]

Ret. military brass and prominent conservative scholars and statesmen support criminal prosecution

Bipartisan group calls for criminal trials in terrorism cases. The nonpartisan Constitution Project states: "The largest bipartisan group of prominent Americans to propose a plan for closing the Guantanamo Bay detention facility has backed a single scheme for the disposition of cases of current and future detainees. Former members of Congress, diplomats, federal judges and prosecutors, high-level military and government officials, as well as national security experts today (November 4, 2009) backed a plan for the handling of detainees when the detention facility is closed."

Declaration: "Civilian federal courts are the proper forum for terrorism cases." From the Constitution Project's statement:

Declaration Supporting Federal Court Prosecution of Terrorism Suspects and Opposing Indefinite Detention Without Charge

We, the undersigned, urge Congress and the President to support a policy for detention treatment and trial of suspected terrorists that is consistent with U.S. treaty obligations and constitutional principles. As it moves to close Guantanamo and develop policies for handling terrorism suspects going forward, the government should rely upon our established, traditional system of justice. We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases

Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Prosecutions for terrorism offenses can and should be handled by traditional federal courts, which operate under statutes and procedures that provide the tools necessary to try such complex cases. Moreover, the War Crimes Act explicitly gives federal courts jurisdiction to try certain war crimes.

Terrorism suspects should be criminally tried, not detained without charge

We believe it is unconstitutional to detain indefinitely terrorism suspects in the United States without charge, either for the purposes of interrogation and intelligence-gathering or solely on the basis of suspected dangerousness. There are limited times when preventive detention, subject to required procedural protections, is appropriate in the context of armed conflict. However, the continued detention without charge of the detainees remaining in Guantanamo is not appropriate and is contrary to American values. [Beyond Guantanamo, The Constitution Project]

Declaration signed by numerous retired generals, admirals, legal experts, and conservatives. Below is an excerpted list of signers of the Constitution Project's Beyond Guantanamo: A Bipartisan Declaration, which includes Norquist, president of Americans for Tax Reform; former Rep. Thomas B. Evans Jr. (R-DE), a former co-chairman of the Republican National Committee; Keene, chairman of the American Conservative Union and board member of the National Rifle Association, and former Reps. Goldwater (R-CA) and Bob Barr (R-GA):

  • Stephen Abraham, Lieutenant Colonel (Ret.), U.S. Army Intelligence Corps (Reserves); Lawyer, Newport Beach, California
  • Dennis Archer, President, American Bar Association, 2003-2004; Mayor, Detroit, 1994-2001; Associate Justice, Michigan Supreme Court, 1986-1990
  • William Banks, Professor, Director, the Institute for National Security and Counterterrorism; Laura J. & L. Douglas Meredith Professor of Law, Syracuse University College of Law
  • David M. Brahms, Brigadier General (Ret.), U.S. Marine Corps, 1963-1988, Legal Adviser, 1983-1988; Practicing attorney; Member, Board of Directors, Judge Advocates Association
  • Larry Edwin Craig, U.S. Senator (R-ID), 1991-2009, Chairman of the Senate Committee on Veterans' Affairs, 2005-2007; President, New West Strategies
  • James P. Cullen, Brigadier General (Ret.), U.S. Army Reserve Judge Advocate General's Corps; Chief Judge (IMA), U.S. Army Court of Criminal Appeals; practicing lawyer
  • Sandy D'Alemberte, President, American Bar Association, 1991-1992
  • John W. Dean, Nixon White House Counsel, 1970-1973
  • Mickey Edwards, Member of U.S. Congress (R-OK), 1977-1993, Chairman of the House Republican Policy Committee, 1989-1993; Former National Chairman, American Conservative Union; Founder, Heritage Foundation; Lecturer at the Woodrow Wilson School of Public and International Affairs, Princeton University
  • Bruce Fein, former Associate Deputy Attorney General and Assistant Director, Office of Legal Policy, U.S. Department of Justice; former General Counsel, Federal Communications Commission; former Research Director for the Joint Congressional Committee on Covert Arms Sales to Iran; former Executive Director, World Intelligence Review; Adjunct Scholar, American Enterprise Institute; Resident Scholar, Heritage Foundation; Lecturer, Brookings Institute; Adjunct Professor, George Washington University
  • Eugene R. Fidell, President, National Institute of Military Justice; Florence Rogatz Lecturer in Law, Yale Law School; Of Counsel, Feldesman Tucker Leifer Fidell LLP
  • Louis G. Fisher, Specialist in Constitutional Law, Law Library, Library of Congress
  • Sam Gardiner, Colonel (Ret.), U.S. Air Force
  • Philip Giraldi, Francis Walsingham Fellow, American Conservative Defense Allliance; Former CIA counter-terrorism specialist and military intelligence officer
  • Michael S. Greco, President, American Bar Association, 2005-2006
  • Robert Grey, President, American Bar Association, 2004-2005
  • Lee F. Gunn, Vice Admiral (Ret.) U.S. Navy
  • Don Guter, Rear Admiral (Ret.) U.S. Navy, 1970-2002;
  • Robert Hirshon, President, American Bar Association, 2001-2002
  • John D. Hutson, Rear Admiral (Ret.) U.S. Navy, 1973-2000; Judge Advocate General, 1997-2000; President and Dean, Franklin Pierce Law Center
  • David R. Irvine, Brigadier General (Ret.) U.S. Army; Former Deputy Commander, 96th Regional Readiness Command; former faculty member, Sixth U.S. Army Intelligence School, 18 years; former Legislator (R), Utah House of Representatives
  • Albert H. Konetzni, Jr., Vice Admiral (Ret.) U.S. Navy, Deputy and Chief of Staff, U.S. Atlantic Fleet, Deputy Commander, U.S. Fleet Forces Command; Commander, Submarine Force, U.S. Pacific Fleet; Commander, Submarine Group Seven (Yokosuka, Japan); Assistant Chief of Naval Personnel for Personnel Policy and Career Progression
  • Scott McConnell, Editor-at-Large of The American Conservative
  • James E. McPherson, Rear Admiral (Ret.), Judge Advocate General of the U.S. Navy, 2004-2006
  • David C. Miller, Jr., Special Assistant to the President, National Security Affairs, National Security Council for President George H. W. Bush, 1989-1990; Ambassador to Zimbabwe, 1984-1986; to Tanzania, 1981-1984
  • Melvyn S. Montano, Major General (Ret.) U.S. Air National Guard, 1954-1999
  • Alberto Mora, Former General Counsel, Department of the Navy
  • William H. Neukom, President, American Bar Association, 2008-2009
  • Michael Ostrolenk, National Director of the Liberty Coalition; Founder and National Coordinator, Medical Privacy Coalition; President and Co-Founder, American Conservative Defense Alliance
  • Murray G. Sagsveen, Brigadier General (Ret.) U.S. Army; Staff Judge Advocate for the State Area Command, Special Assistant to the National Guard Bureau Judge Advocate, Army National Guard Special Assistant to the Judge Advocate General of the Army; General Counsel, American Academy of Neurology
  • Stephen A. Saltzburg, Attorney General's ex-officio Representative, U.S. Sentencing Commission, 1989-1990; Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice, 1988-1989
  • Daniel S. Seikaly, Chief of the Criminal Division, U.S. Attorney's Office, District of Columbia, 2001-2004; Associate Inspector General for Investigations, Central Intelligence Agency, 1998-2001; Associate Deputy Attorney General, U.S. Department of Justice, 1996-1998
  • William S. Sessions, Director of the FBI, 1987-1993; Chief Judge, 1980-1987, and Judge, 1974-1987, U.S. District Court for the Western District of Texas; U.S. Attorney, Western District of Texas, 1971-1974
  • John F. Tate, President, Campaign for Liberty
  • Colby Vokey, Lieutenant Colonel (Ret.) U.S. Marine Corps, 1987-2008; Lead Counsel for Guantanamo detainee Omar Khadr at Military Commissions, 2005-2007; Attorney, Fitzpatrick Hagood Smith & Uhl, LLP
  • H. Thomas Wells, Jr., President, American Bar Association, 2009-2010
  • Lawrence Wilkerson, Colonel (Ret.) U.S. Army; Visiting Pamela C. Harriman Professor of Government at the College of William and Mary; Professorial Lecturer in the University Honors Program at the George Washington University; former Chief of Staff to Secretary of State Colin Powell, 2002-2005
  • Stephen N. Xenakis, Brigadier General (Ret.) U.S. Army, Commanding General of the Southeast Army Regional Medical Command; author on medical ethics, military medicine, and treatment of detainees
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