Obama's Budget Goes to The Hill

President Obama's $3.8 Trillion budget goes to Congress tomorrow.

Given the Republican threat to pass a bill that prevents DOJ from using funds to try terror suspects in federal court, Obama has one other option: trying them not in military commissions as the scaredy-pants Repubs want, but trying them in military courts under the Uniform Code OF Military Justice, a procedure far more fair that the military tribunals.

If that is done, the Department of Defense can use some of its bloated budget to pay for the trials, instead of the DOJ and Homeland Security.

The Republicans and right-leaning Dems can scream all they want, but Obama made a promise: Those that could be tried in civilian courts would be tried in either civilian courts or under the Code of Military Justice. [More..]

It will be interesting to see which Dems join the Republican bandwagon for Peter Kiing's bill to prohibit DOJ from using its counterterrorism fund monies to try these cases in federal criminal court. If enough of them do, them maybe they've talked to Obama who has told them it's okay for them to support King's bill. If the bill passes, he can veto it. If it survives a veto, he can move to stage 2, which is not military commission trials, but trials under the Military Code of Justice. Surely he must have the power to order that without congressional approval.

Civil libertarians have said all along these defendants must be tried by either a federal criminal court or under the code of military justice.

I doubt the military prosecutors will be as experienced in trying terror cases as the federal criminal prosecutors in New York, and maybe they'll lose one or two of the cases, but that ought to show the right wing how they shot themselves in the foot.

Obama cannot backtrack now to military commissions with respect to detainees he believes can be prosecuted and convicted in federal court. He will not only be a one term President, he very well may face a major primary fight for re-nomination to his second term. Capitulating on this will throw millions of American over the edge, and he'll be in the land of no return.

We all understand that he told us change isn't easy and it takes time. Moving backwards is not change at all, it's regression -- a retreat to the Bush/Cheney policies we elected him to break from. If he capitulates on this now, he's not the man we elected. It will be one broken promise too many. His legacy will be a joke.

The Constitution acknowledges two kinds of courts: Article III courts (our civil and criminal courts) and military courts that proceed under the Uniform Code of Military Justice. Military commissions are not military courts. Obama is on weak ground with these military commissions and indefinite detention, just as Bush was, and the Supreme Court will again weigh in if he goes that route -- probably not in his favor.

Personally, I still believe Obama will keep these defendants in federal criminal courts, although perhaps decide to try them somewhere other than NYC. If I'm wrong, I think it will be because the funding limitation bill passes despite his veto. And if that happens, trials under the code of military justice are the next best option. If he reverts to military commissions instead, I'll realize he fooled me not once, but twice, and I'm done.

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    It's not just (5.00 / 2) (#3)
    by jbindc on Mon Feb 01, 2010 at 08:25:20 AM EST
    "scaredy-cat Republicans"

    According to Glenn Greenwald, more pressure is coming from Democrats, who some seem willing to join the GOP in block off funding.

    But interestingly, he quotes L. Paul Bremer, the top Reagan State Department official in charge of Terrorism policies, in a speech given at the time:

    Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy's most potent tool, the rule of law against them.

    Maybe this is one of Reagan's policies Obama should fully embrace, instead of being wishy washy.

    "terrorists are criminals?" (none / 0) (#27)
    by diogenes on Mon Feb 01, 2010 at 06:11:59 PM EST
    Saying that terrorists are criminals because they commit criminal acts is like saying that Hitler wasn't guilty of war crimes because he only committed the criminal act of conspiracy to murder Jews, Gypsies, and homosexuals.
    Criminal law is meant to appeal to so-called rational players who presumably choose to be criminals based on a cost-benefit analysis.  It doesn't fit the model of a suicide bomber or the guy who killed the abortion doctor in Kansas.

    $3.8 Trillion! (none / 0) (#1)
    by bob h on Mon Feb 01, 2010 at 06:41:41 AM EST
    I remember just yesterday Bush was proposing budgets of $2.2 trillion or so, so we have an incredibly fast expansion of the size and role of the Federal government that is probably never going to decrease.  While we don't have HCR yet, those of us who believe in the necessity of government have to regard that $3.8 trillion as a real accomplishment.

    I still do not believe anyone really cares about deficits.

    They will care, if inflation kicks in (none / 0) (#16)
    by BrassTacks on Mon Feb 01, 2010 at 01:38:26 PM EST
    because of these huge deficits.  Many pollsters are also showing that people care.  They tie the growing deficits to the economy.  It's all money, to most folks, and it's getting scary to many people.  

    Scare and fear tactics (none / 0) (#23)
    by mmc9431 on Mon Feb 01, 2010 at 02:09:28 PM EST
    The deficit is a real issue right now because Republicans are pounding it constantly in the news.

    The problem I find is that Republicans only cry chicken little about the deficit when Democrats are in power. Any other time we're told that it doesn't matter. Neither Reagan nor Bush spent one minute worrying about the deficit.

    When Washington begins to seriously talk about the defense budget, I'll start to listen to suggestions on cutting back.

    If things are bad enough to gut the New Deal, then we need to think of what are priorities are. Maybe the days of being the internation military should come to an end?


    You may be right (none / 0) (#4)
    by jbindc on Mon Feb 01, 2010 at 08:46:17 AM EST
    Trying someone in military courts under the UCMJ only applies to members of the US armed forces, plus (interestingly enough), NOAA Commissioned Corps, and the Public Helath Services Commissioned Corps.  (The UCMJ does not apply to the Coast Guard unless they are acting as part of the Navy, nor does apply to members of the National Guard unless they are activated in a federal capacity, nor can cadets in midshipment in ROTC programs subject to the UCMJ).  KSM et al do not fit the definition of who can be tried in military courts under the UCMJ.

    Military commissions (which have been used as far back as George Washington), only have jurisdiction over those determined to be an alien unlawful enemy combatant before, on, or after September 11, 2001.

    According to Wiki, and "unlawful enemy combatant" is defined as:

    "The term 'unlawful enemy combatant' means --
    (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or

    (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

    the comment you are replying to was deleted (none / 0) (#10)
    by Jeralyn on Mon Feb 01, 2010 at 11:48:38 AM EST
    for presenting false information.

    Trying the detainees in courts using the Code of Military Justice has always been an option, and it is one that has been recommended over the military commissions by everyone from Obama to the ACLU, Center for Constitutional Rights, Law Professors and even the Supreme Court. One example but there have been hundreds of articles along these lines:

    Regularly constituted military courts under the Uniform Code of Military Justice are an option, and the language of the order ostensibly provides enough wiggle room for this possibility, although it is not explicit. The U.S. Supreme Court in Boumediene chastised the Bush Administration for not adhering to statutory and treaty strictures in the Uniform Code of Military Justice and the Geneva Conventions with respect to its treatment of Gitmo detainees. Military prisons at Ft. Leavenworth (Kansas) and Camp Pendleton (California) would be likely venues for such military trials.

    UCMJ (none / 0) (#13)
    by MKS on Mon Feb 01, 2010 at 11:58:59 AM EST
    Interesting that a military court can be used....I assume that most of the usual rules of evidence would apply....

    A civilian trial would be best....but the key is a fair, open trial with due process....Otherwise, why bother....

    It is so easy to demagog the issue of crime in general, let along the issue of what to do with terrorists....Too many would just be happy with taking him out in the back and shooting him...after, of course, a healthy round of torture...

    I don't think things have changed all that much since Korematsu--but maybe they have....The fear-based brain of conservatives....


    The UCMJ (none / 0) (#14)
    by jbindc on Mon Feb 01, 2010 at 12:40:02 PM EST
    is more restrictive on some things than civilian trial, I believe, including things like having a non-unanimous vote for a guilty verdict.

    It was not false information (none / 0) (#24)
    by BTAL on Mon Feb 01, 2010 at 02:10:19 PM EST
    The UCMJ is the judicial structure and laws of the United States military.  Its jurisdiction spans to those who are under the purview of military law.  Specifically serving members of the military, contractors, etc.  The jurisdiction for combatants/POWs is for offenses they may commit AFTER capture, not before as combatants.

    The Boumediene v. Bush SCOTUS cite was a habeas corpus case/ruling that did not rely on the UCMJ as its basis.


    Specifically: 802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER

    That article lists individuals who are subject to UCMJ juridiction.


    The ACLU (none / 0) (#12)
    by Jeralyn on Mon Feb 01, 2010 at 11:54:59 AM EST
    Here :

    There is no reason these prosecutions cannot occur in our tried and true criminal justice system or military courts that follow the Uniform Code of Military Justice, both of which are able to deal with national security issues and come fully equipped with constitutional safeguards.

    Time to lead (none / 0) (#5)
    by mmc9431 on Mon Feb 01, 2010 at 10:17:43 AM EST
    I agree with you, if he continues to fold every time the Republicans object, he will not only destroy his legacy, but he'll take the party down with him.

    It's no wonder that the Democrats have the reputation as the weak party. They don't even have the strength to stand for their own convictions.

    I see a billion more... (none / 0) (#6)
    by kdog on Mon Feb 01, 2010 at 10:40:46 AM EST
    for the DOJ, can't seem to find out how much of that action is gonna make its way down to the DEA and BOP.

    If they can get a bump instead of a drastic cut, we must not be broke as a joke after all.  I won't even go near the Defense Dept. slice (sweet jesus)...I guess when it comes to spending on harm we've always got the scratch...cries of poverty are for the good stuff only.

    Aren't we glad the D's are in charge to get our priorities straight?...LOL

    Here you go (none / 0) (#7)
    by jbindc on Mon Feb 01, 2010 at 10:56:04 AM EST
    The full budget.  I can't open .PDFs but you can look at each agency breakdown.  Let us know what you find.

    Gracias Senora... (none / 0) (#8)
    by kdog on Mon Feb 01, 2010 at 11:31:32 AM EST
    I see right off the bat 600 mill to hire 50k new cops...say it ain't so O!  We got plenty by me thank you...

    Looks like all the bad news is getting an undeserved raise...DEA up from 2.028 billion to 2.130, funding for the federal pens goes from 6.188 billion to 6.804...I can almost see the tear rolling down Lady Liberty's cheek.

    Brightside is the talk of us being broke must be just talk, otherwise those numbers would be heading in the other direction.  


    Security (none / 0) (#9)
    by mmc9431 on Mon Feb 01, 2010 at 11:39:37 AM EST
    Don't you realize that there's no scrimping when it comes to protecting the public! If you can hide it behind national security, the flag, or the bible, it can't be disputed.

    The rate the economy is tanking we'll may need all those extra cops when the peasants start to revolt.


    You might need those cops... (none / 0) (#11)
    by kdog on Mon Feb 01, 2010 at 11:49:22 AM EST
    I'm with the peasants...sh*t the cops should be with the peasants but the dole has been known to rot the brain:)

    In Chicago (none / 0) (#15)
    by cal1942 on Mon Feb 01, 2010 at 12:48:57 PM EST
    in the early years of the depression, unpaid cops were caving in the heads of protesting unpaid teachers.

    Not very encouraging.


    ALL of this is ''tough on crime'' (none / 0) (#17)
    by BrassTacks on Mon Feb 01, 2010 at 01:41:10 PM EST
    that the democrats are currently embracing.  Same thing with Gibbs stupid statement yesterday.  They're tough on crime and terrorists!  

    Being (none / 0) (#18)
    by jbindc on Mon Feb 01, 2010 at 01:45:31 PM EST
    "weak on crime" or "soft on terror" doesn't get you re-elected, since by far, most people don't want that.

    Yup, they are running to the right, (none / 0) (#20)
    by BrassTacks on Mon Feb 01, 2010 at 01:51:35 PM EST
    They got scared after Virginia and Massachusetts.  

    Sadly it ain't a new embrace... (none / 0) (#19)
    by kdog on Mon Feb 01, 2010 at 01:48:41 PM EST
    from the Dems, Clinton started a "tough on certain crime" trend...better to win the wrong way than lose the right way I guess.

    I'd rather lose the right way myself...


    Yeah, but (none / 0) (#21)
    by jbindc on Mon Feb 01, 2010 at 01:53:32 PM EST
    We all know you'd open all the jail cells and let all the dregs of society walk freely among us too!  :)

    Not all... (none / 0) (#22)
    by kdog on Mon Feb 01, 2010 at 02:01:03 PM EST
    the cages, but a good chunk, you betcha!

    With some of the dregs I see in the halls of power I think some of the guys in our cages on the loose would be an improvement myself.


    As I live in DC (none / 0) (#25)
    by jbindc on Mon Feb 01, 2010 at 02:11:14 PM EST
    I can tell you it might be an improvement in the looks department too!

    But the counter to your argument is not to free those already in jail, but put more in - starting with the people on both ends of Pennsylvania Avenue!  :)


    Not before... (none / 0) (#26)
    by kdog on Mon Feb 01, 2010 at 02:14:23 PM EST
    reviewing all the cases of those sent to cages by the bastards on both ends of Penn. Ave...and issuing boatloads of pardons.