Military Tribunals

[Strelnikov]

I'm hoping our resident attorney, MN, and some of our European members will join this thread.

The Bush Administration has announced that captured terrorists will be tried by military tribunal. This has brought on an epidemic of breast beating and wailing on the Left. Their concerns seem to be that we won't play fair with our enemies - that kangaroo courts won't afford them the same legal protection as members of the American public who fall afoul of the law.

First off, such tribunals are not prohibited by the U. S. Constitution. They were used during the Civil War and both World Wars. The Federal Courts have had plenty of opportunity to say no, and they have refused to do so. I've no doubt that the present Supreme Court will do likewise - they follow the opinion polls too, and they lean conservative anyway.

The concepts of an independent judiciary, of trial by jury, and of presumption of innocence are Anglo-Saxon in origin, through English common law. Military law, on the other hand, originates in the Roman legal code, where the concepts are reversed from the Anglo-Saxon.

That's true also of the legal systems in most of Europe. Most of them are based on the Code Napoleon of Imperial France, exported by the French Army to the tottering monarchies of Europe. The Code Napoleon was based on a rational, well-documented legal system: Roman law.

An American who says the terrorists can't get a fair trial in a military tribunal, is also saying that it's impossible to get a fair trial in France or Germany. Maybe they even believe that's true because they believe our system is superior. The most likely explanation, though, is ignorance. Americans, even educated ones, tend to be pretty parochial.

A European who objects to the tribunals is probably expressing their typical squeamishness with respect to the death penalty. That's fine with me. They can try to hold these people forevermore if they wish. The ones we catch should get a fair trial followed by a suspended sentence - at the end of a rope.

Strelnikov

 

[guitman69]

I doubt they would get a fair trial even if they weren't tried in a Military Tribunal.

 

[TicklingDuo]

I think it would be difficult to find jurors for a normal trial. But, it could be done. There are, however, differences that are important to keep in mind. I think it's a good idea to have a military tribunal rather than a normal trial. This is precisely because of the differences in the process and the fact that the press can't make every minute detail public.

They pick and choose what they want to tell people anyway. They were begged (by me, among others) to broadcst the horrendous attrocities Milosovic and others were guilty of. We had video-taped proof of the massive slaughters and mutilations. But, they didn't want to hear about it. So, we didn't get to hear about it. It wasn't until years and thousands of deaths later that they bothered to air the story.

Trial by miitary tribunal is sealed. The military (not the press) chooses what they are able/willing to let the public know. This is very important when a good deal of the evidence that we're talking about comes from sources that we need to protect in order to keep useful...not to mention alive. This "secrecy" is necessary . It doesn't mean that there will be abuses. Just how little do we trust or system? I trust them a hell of a lot more than I do the press!

Making all of the necessary information (evidence) known in a normal trial leaves that iinformation open to anyone to access, twist and abuse. The main difference in a military trial would be the fact that the panel (jurors in effect) would consist of people with security clearence who can be trusted to keep their mouths shut. While some of the procedures may differ, the obligation to prove the case remains. We just don't get to hear all the juicy details.

The most common complaint I've heard from those opposed to this is that we won't know all the details. We SHOULDN'T know all the details! This is a matter of national security we're talking about. Our "right to know" is not a God-given right or even a constitutional one. It's one that we've insisted upon at various points and been allowed.

I like to know what's going on as much as anyone. But, if it's going to mean giving our enemies information they can use against us or endangering a useful source, I don't want to be told. In fact, I wish that we could silence some of these news reports that are pointing out all our weaknesses. Yes, it can be good for the general public to know these things. But, terrorist watch the news too. They're pointing out vulnerable targets. THAT, I think, makes them culpable if something happens. I'm so sick of hearing people whine and claim their supposed right to know! The obligation of our gov't is to serve and protect. In a time like we're in, their obligation is NOT to tell us.

OK...enough b****ing. Bottom line...I think a military tribunal is a better idea than a nomal trial.

Ann

 

[Shem the Penman]

There are already laws that enable classified information to be used as evidence in a regular trial without exposing it to the public. Those laws came into play in the trial of the 1993 World Trade Center bombers, as well as the more recent trial of the terrorists who bombed our embassies in Kenya and Tanzania. In neither case was there any fuss about the leaking of sensitive details, and in both cases the criminals were convicted.

Regarding the fairness of military tribunals: What I've read about the procedures suggested makes them sound anything but fair. There would be no standard of reasonable doubt. Illegally obtained evidence, rumor, and hearsay could be entered into court. No appeals would be allowed. The defense would not be informed of the charges against it, nor would there be any discovery of prosecution evidence. Rather than being independent, the military judges would be subject to orders from superiors. Hell, they could even use torture to extract confessions, as long as it wasn't done on U.S. soil. If it looks like a kangaroo, has a tail like a kangaroo, and hops like a kangaroo, I shall call it a kangaroo.

As for other countries being upset: I can't speak for them, of course, but if I were foreign, I hope I'd be alarmed to know that if I traveled to the U.S., I could be arrested, tried, convicted, and possibly executed while my family, my embassy, and my government receive only the most basic information (if that). The new laws Bush and Ashcroft have forced through Congress -- allowing minimal public debate, since we don't need all that messy democracy stuff -- broaden the legal definition of terrorism to the point where any political protest can be labeled a terrorist act by a creative prosecutor. Seems odd to pass laws that enable the government to make political enemies disappear on trumped-up charges at the same time we claim we're fighting for freedom and democracy.

In World War II, military tribunals were invoked only once, in a trial of German saboteurs in New York that could easily have been handled by criminal courts (and should have been). Furthermore, since the Civil War the Supreme Court has held that military tribunals should only be used "in the actual location where war is being fought" (see this link). Setting aside the fact that we're not even officially at war, since Congress has yet to make a declaration, that would seem to suggest that military tribunals would only have jurisdiction in Afghanistan.

And if you think it's just liberals who are opposed to this plan, try reading George Will or William Safire sometime.

One final thought: When Israel captured Adolf Eichmann after World War II, they gave him a fair trial, even though they had every reason in the world to execute him out of hand. Why should we do less? Why pass up the chance to show the world America at its very best?

 

[shark]

It seems that the more militant terrorists are not even Afghans.Reports say that the Arabs and Pakistanis are even forcing the Afghans to fight.
Since these guys are so eager to meet allah,why not help them along?
This whole situation is different in that the terrorists and their supporters do not necessarily fight for a country or people,and the religion they claim to fight for denounces their actions. The role they play is not in the US, so some will claim they committed no crime against us. Some will even call it justified, saying our foreign policy is to blame. As far as soldiers,they are mercenaries at best. Considering that reports are accurate, they are also going out of their way to continue fighting. This would make for some interesting legal arguments.
If we are lucky,the hardline terrorists will continue to riot in prison and be killed in the process.This way,they will decide their own fate and save the rest of us the trouble.

 

[thenaveltickler]

To Shem

I can't even vaguely understand why you believe someone like Mohammed Atta or even Mr. Bin Laden himself (if God forbid we capture him vs. kill him) deserve the same rights of a REAL US citizen. I mean should we send our special forces the Miranda Act so they can recite it to each of these murderers...they'll also have to have a plentiful supply of Alan Dershowitz "I'll defend anybody as long as it gets me on the front page of the NY Times" business cards.

Military tribunals are similar to those that US military personnel go through under court martial procedures..so basically we would be saying to our troops, who are risking their lives to defend us and our way of life, that these barbarians deserve more rights than they do...that's just a fabulous message to send.

I could care less if foreignors (e.g. Arabs) fear coming here; I would fear going to any of their tyrannical countries as if I was caught jaywalking I'd get my legs chopped off in the public square. Please...we need to concern ourselves with the security of our country vs. the perception of the rest of the world.

The "messy democracy" and "minimal public debate" comment is about as assinine a comment as I have ever heard...there are people here plotting to kill more Americans as we speak...sitting around a campfire and talking about things will not prevent these lunatics from doing so...it's time for action not more psychobabble.

Hopefully Shark will be correct and we'll just cleanse the earth of these maggots but if some are captured a military tribunal is a more equitable court proceeding than they truly deserve (or they would receive if we just stood by and let the Northern Alliance have their way with them).

 

[Strelnikov]

You'll note that the Spaniard who objects to extraditing his captured terrorists to the U. S. is both judge and prosecutor. He's not objecting to the system, which is similar to his own (see my original post.) He's just squeamish about terrs getting what they deserve.

As regards tribunals being used only in the theater of war, will NYC do for a start?

We've gone too far in this country in protecting the rights of the criminal members of our society. Public safety has suffered as a result, not to mention the additional victims of crime. But at least the garden-variety burglar or armed robber is a member of society, connected in some way with the rest of us, arguably salvageable.

Not so for the terrs. If captured, they're not ordinary POW's, who can be allowed to go home after the war. This war may not end in my lifetime anyway. Nor are they ordinary criminals, members of society in need of correction. They're enemies of our society, and alien to it. If captured under arms, it's pointless to convict them of Brady Bill violations. Furthermore, it's counterproductive to allow a grandstander like Johnny Cochran to turn their defense into a media circus.

As WWII neared the end, both FDR and the Russians wanted to try the Nazi leaders for committing war crimes. Churchill reportedly favored the Three S treatment: Shoot, Shovel, Shut up. He may have been right, and maybe that's the approach we should take too, at least in the field. But if we have to have trials, military tribunals are more appropriate than the alternatives.

Strelnikov

 

[Shem the Penman]

Navel: That's fine. Me, I'm just sorry you consider the Constitution "psychobabble." Do you approve of Congress passing laws without even having the time to read them to see what they contain, which is what happened with the horribly misnamed USA PATRIOT act? Is Congress's only function to serve as a rubber stamp for the President? And if so, how long are they supposed to continue to do so, given that nobody knows at this point how long this war will last?

Incidentally, the Constitution extends its protection to "every person," not "every citizen." It does not give the President the right to, for instance, decide who gets to have a trial by jury and who doesn't.

And as for the claim that the tribunals are the same as military courts: horseshit. The tribunals, from what I've read, are nothing like courts-martial. For instance, in all real courts (including courts-martial), an unanimous decision is required to impose the death penalty; the tribunals would not require that. Courts-martial, unlike the tribunals, require that the defendant be informed of the charges against him, give him the right to confront his accuser, permit him discovery of the prosecution's evidence, grant the right of judicial review and appeal ... I could go on, but you can do your own research at the JAG's site.

Strelnikov: New York City is not a theater of war. It is a place where a crime was committed. New York's courts are still open and still have jurisdiction over the area. Send the terrorists there. As I pointed out, we did fine with the original World Trade Center bombers. Ban the press from the courtroom, absolutely. Hell, put Rudy Giuliani in charge of prosecuting them. He was great at that.

Incidentally, in every reference I can find to Spain's refusal to extradite, they directly mention the tribunals as well as the death penalty as their reasons for refusing.

And if you think secret trials, confessions extracted by torture, people being detained without even being informed of the charges against them, and a denial of judicial review aren't antithetical to the basic values of our justice system ... well, see you in the gulag, comrades.

 

[Strelnikov]

The 9/11 attacks weren't a crime, they were acts of war.

The criminal justice system isn't the venue to deal with wartime enemies. Expert testimony at the trial of the 1993 WTC bombers convinced the current bunch that ordinary car bombs couldn't bring the towers down, hence the airplanes. That case took far too long to prosecute, and the perps are still breathing my air.

Europeans can do what they want with the terrs they catch. We can always scoop the bastards up, or cause them to disappear, if our friends decide to turn them loose. World public opinion be damned - WE were attacked, not them. What we do with the terrs we catch is OUR business.

Shem described a General Court Martial, which has plenty of legal bells and whistles. There are other types, equally valid under military law. Here's an example in action:

Berlin, 1919. The Kaiser abdicated some months before, and the former leader of the Socialist Deputies in the Reichstag was serving as Chancellor of the provisional government. The Spartacist Revolt (Bolshevik) broke out. The provisional government declared martial law, and put loyal troops to work suppressing the revolt.

A military patrol arrested Red Rosa Luxemburg and Karl Liebknecht. The young officer in command ordered them shot. It was just one incident among many.

Fast forward to the 1960's. A leftist City Prosecutor in Berlin found out that the officer was still alive. He decided to stage some political theater. The man was charged with murder.

The former officer was acquitted of murder charges on these grounds:
1. Martial law had been declared by the legal government.
2. The officer was engaged in enforcing the law when his men arrested the Reds.
3. Under the circumstances (i. e. in combat), he had the authority as senior officer present to convene a Summary Court Martial, and did so. In a Summary Court, the convening officer serves as investigator, prosecutor and judge.
4. In his role as judge, the officer tried and convicted the Reds of armed revolt, and sentenced them to death.
5. In his role as troop commander, he carried out the sentence of the Summary Court.

Mr. Ashcroft is by no means suggesting summary executions (note the term - it isn't accidental), but he could, under limited circumstances, and it would be legal.

Strelnikov

 

[Kalba]

I think the Constitutional question hinges more upon whether the terrorist is a US citizen or noncitizen. In short, should Timothy McVeigh (if he were still alive and ripe for trial) and Osama Bin Laden be afforded the same consideration in a court of law. Personally, to me 168 human lives vs. 5000 doesn't make a difference. When you get to one, you should be consistent. We shouldn't be in a hurry try a noncitizen suspected of being a a terrorist any more than we are of a US citizen. The risk is the same, killing an innocent human being of a crime they didn't commit. The horrendous nature of the crime makes all the more important we get it right. God forbid, we kill an innocent person and let the planner of the terrorist act off.

Second, our own hypocrosy (sp?) is on the line here. We critized the government of Peru for trying Laurie Berenson, a US citizen, for her suspected terrorist involvement with the Shining Path, a Peruvian terrorist organization, in a military tribunal. And now, we are proposing to do the same thing we criticized the Peruvians for because it is convenient. To quote "The Contendor", principles don't count only when they are convenient. If we aren't prepared to provide the same due process that we hope for when an American suspected of terrorism is tried overseas, then shame on us. Hide the flag, and douse the fireworks.

Kalba

 

[Strelnikov]

To quote Tonto, "Whaddya mean WE, White Man?" I wouldn't dream of criticizing the Peruvians for their treatment of a U. S. citizen stupid enough to (1) involve herself in someone else's revolution and (2) get caught. That's one of the risks she voluntarily assumed by participating. The criticism came from professional chatterers who sympathize with the aims of the revolution - often the same people who oppose the current war because us American Imperialists deserved the WTC attack.

Strelnikov

 

[qjakal]

Weighing in...

Haven't had much to add to this, since Strels views parallel my own on this topic. Actually I might be even a bit more partial to quick justice, being rather near NYC....it's a bit different when you can smell the smoke and hear the screams. I won't lose sleep over any of these fools who won't lay down their arms and surrender. They have made the choices that brought them to this point, and the consequences merely reflect their own actions. No one is saying it, but I personally feel we're extending them more dignity and honor than deserved by even the form of a tribunal.

Shem, the founders of our country forsaw a great many things, and wrote a flexible and timeless document with many, many provisions for change incorporated into the final draft. Do you think this was an accident? Isn't the purpose of our entire Republic to ensure the freedoms of its supporters? Why hedge because there's a minority that don't care for the actions? Not the way it was designed or the way it works.... Your presumptions that Congress hasn't read the acts it passes and/or is functioning as a rubberstamping set of "yes people is a bit farfetched to say the least. You have an opinion, but so do many millions of others....respectfully disagree, and may we remain relentless and strong in this war.

 

[Kalba]

The "we" meant Americans. I think there are two competing risks with any kind of judicial proceeding: 1) convicting the innocent, 2) letting the guilty off. You can't eliminate the risk, just manage it. The current system is weighted towards minimizing the first. A military tribunal minimizes the second at the expense of increasing the first kind of risk. I can understand this feeling given the horrendous nature of the terrorist attack we suffered on September 11. I can only repeat that because such an attack was so horrible, that I believe we take greater care to avoid mixing up vengence with justice. A capital sentence once completed is irreversible. Even a long prison sentence for an innocent person can rob a person of his or life's productive years. We should be sure get it right.

I also think that we shouldn't presume Berenson's guilt simply because that's what the Peruvian's charge. Hidden trials, secret evidence. Without due process what distinguishes us from a totalitarian state. I think during a time of war this is the most important time to be resolute about our freedoms lest we make the same mistake we made with the Japanese internment in WWII. Anyway, I agree to disagree.

Kalba

 

[shark]

After today's news,this discussion may become moot.A CIA agent was killed during the riot in that Afghan prison.He and another agent were interviewing Taliban foreigners,and asked them why they were in Afghanistan.The answer given went something like "to kill you",and then an attack and riot followed.This was in the London Times.
If these people are that motivated,there will be little choice but destroy them all.They would be perfectly willing to pull these stunts at every opportunity,and no doubt in my mind that their buddies would be using the trials as a background for more trouble.Why not take hostages and barter for the release of their comrades?I don't think it wise to expose people to these actions,especially when the terrorists themselves say they'll fight to the end.I say help them along ASAFP.

 

[Rusty Shackleford]

Like Grammy used to say

?***

 

[thenaveltickler]

to my buddy shem again

Shem, I'm glad that there are so many of you out there who are so concerned with the rights of the Mohammed Atta's and Osama Bin Laden's of the world. As for your horeshit comment, you need to do some research, or better yet use some common sense, the only significant differences are the 2/3rds vote and the fact that witnesses are kept secret, the reason being that if we have a mole in one of these organizations whose testimony ends up on CNN, he/she will be dead upon his departure of the court room...it's called common sense..maybe you should go find some but I wouldn't go looking in a cave in Afghanistan. This is a war, not a criminal investigation..do you really think we could find a jury of Osama Bin Laden's peers?? What's his defense going to be insanity, America deserved this, I spoke with Allah and he told me to do it?

Guess the better question to ask would be -

How many more Americans have to die before you place a greater emphasis on the security of this country's citizens versus the civil liberties of foreignors? 100,000, a million, or not until a plane crashes into your living room...let me know the number so once it's attained at least I'll know you'll be on the same page.

Oh and by the way military tribunals are included in the Constitution, believe it or not the Constitution does allow its Government to defend the country and its citizens by any means necessary...imagine that????

 

[qjakal]

Fence Sitting...

Not to appear wishy washy, but Shem has a legit point regarding the danger of NOT watching this process and being careful it doesn't progress beyond common sense in the other direction as well. I don't relish the thought of being strip searched and detained every time I travel because I have a certain "look" about me.....Ashcroft is implementing some sweeping reforms that will need to be monitored by concerned informed citizens so as not to tip over into the category of abuse. Balance our security with citizens education and observance my friends....you get the kind of government you deserve. I feel we are on the right track, both internally and worldwide, but I also agree with keeping a wary eye on the boys in Washington as well... Q

 

[Strelnikov]

Trust No One

..and I didn't when Slick Willie and Janet Reno were running things, because they're both enemies of MY America. Things are different now - we have both an external enemy AND an administration that doesen't consider me a criminal risk for no better reason than my NRA membership.

The Tribunal proposal provides adequate safeguards to satisfy me even if Sarah Brady got elected President. It applies only to foreigners, not U. S. citizens, and the new anti-terrorism law related to it expires in four years unless renewed.

Strelnikov