Thanks for the correction Monty, I appreciate it, but see the quoted reply above. Feel free to add “the” before “military courts” in my previous message, and it should make sense.
Monty, everybody else understood my post was referring to the military tribunals set up by the executive order. It is the ONLY thing my post deals with and you were the only one to misinterpret it and find the need to post jabs at me. Please see my response to you in the pit.
Not true. In 1972, Johnson vs Louisiana, SCOTUS upheld Louisiana’s use of 9-3 jury convictions in criminal cases:
“We conclude, therefore, that, as to the nine jurors who voted to convict, the State satisfied its burden of proving guilt beyond any reasonable doubt. The remaining question under the Due Process Clause is whether the vote of three jurors for acquittal can be said to impeach the verdict of the other nine and to demonstrate that guilt was not in fact proved beyond such doubt. We hold that it cannot. “
That same year they also upheld 10-2 verdicts in Oregon.
So, though most criminal cases in the US require a unanimous verdict, that is not always the case.
From Military Commission Order No 1: “Evidence shall be admitted if, in the opinion of the Presiding Officer………the evidence would have probative value to a reasonable person.”
From “Federal Court Rules of Evidece”:
- “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority."*
I would say that the general standard is the same. The only real difference is that the DoD hasn’t completely rewritten the Rules of evidence in order to cover every exception which has come up in the last 200 years. But most of those exceptions aren’t going to apply. For instance, offering to pay the victims medical expenses can’t be used as evidence of liability. But I kind of doubt any of these guys have offered to pay anyone’s doctor bills.
Still, this should be helpful in being a little more specific about your concerns. You might pay especial attention to the 23 cases in which hearsay evidence is already allowed.
The appeal is automatic.
“The Secretary of Defense shall designate a Review Panel consisting of three Military Officers, which may include civilians commissioned pursuant to reference (e). At least one member of each Review Panel shall have experience as a judge. The Review Panel shall review the record of trial and, in its discretion, any written submissions from the Prosecution and the Defense and shall deliberate in closed conference.”
“The following procedures shall apply with respect to the Accused………. The Accused shall be presumed innocent until proven guilty.”
“The Commission shall……… Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President’s Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.”
Now I think you’ve hit the nail on the head. The real reason for these commissions may lie in the fact that I can’t find any exception to Rule 26 of the Federal Rules of Criminal Procedure (In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court.) which would allow us to try these people in a civilian court and still maintain any sort of secrecy with regard to “intelligence”, “national security” etc.
“An affirmative vote of two-thirds of the members is required to determine a sentence, except that a sentence of death requires a unanimous, affirmative vote of all of the members.”
Just for kicks and giggles I looked this up:
zigaretten, bear in mind the military tribunals set up by the executive order are the ones which apply here and are different. Read the executive order and my comments to it.
Sailor, my apologies. I thought I linked to this in my first post You need to read:
Military Commission Order No 1:
and the DoD Military Commission Instructions:
http://www.fas.org/irp/news/2003/05/dod050203.html
The Executive Order is old news now.
It may be old news but it is still in force although, I suppose, further developed by the documents you cite and which are quite long and complex to read so I am not going to attempt to go over them in full. the fact is that the military tribunals are different from ordinary courts martial.
My first objection to the tribunals is that they are only for foreigners and not for US citizens. I find this unacceptable. If this form of justice is not fit for a US citizen then it is not fit for any human being. I believe this has not changed.
I am not going to attempt to study those documents in detail but if you believe they change some of my objections please feel free to point them out especifically. I will be happy for every one which has been cancelled. I am just not quite willing to spend the time it would take to study them in detail.
I just linked to 50 some odd pages of due process and legal safeguards.
From Military Commission Instruction No 2:
“The following crimes and elements thereof are intended for use by military commissions……………These crimes and elements derive from the law of armed conflict, a body of law that is sometimes referred to as the law of war. They constitute violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military commission. Because this document is declarative of existing law………”
In other words, these people are not being accused of civilian crimes, they are being accused of previously recognized war crimes. Just like Milosevic.
I might add that they can’t be accused of “just waging war.” If you look over the section in question the words….
“The intent required for this offense precludes its applicability with regard to collateral damage or injury incident to a lawful attack.”
……….show up repeatedly.
From Military Commission Order No 1: “The Accused may also retain the services of a civilian attorney of the Accused’s own choosing and at no expense to the United States Government…………”
As mentioned above, all convictions are automatically appealed and reviewed by a panel which includes at least one judge. In addition, no conviction or sentence becomes final until it has been reviewed by the President or the Secretary of Defense. They can not, however, change a verdict of “not guilty” to one of “guilty.”
It isn’t a question of “foreigners” vs Americans. It’s a question of accused war criminals vs persons not accused of war crimes. Your objection makes as much sense as saying that if POW camps are good enough for Germans or Japanese then they’re good enough for Americans. (referring to WWII, obviously)
Accused war criminals are simply being treated differently than common criminals, as they have been in the past and as is happening right now with Milosevic in The Hague.
Also, several Americans have been declared “Enemy Combatants” and they are subject to trial by Military Commission. The only difference, so far as I can see, is that foreigners are being dealt with under the legal authority of the President’s Ececutive Order while American citizens are being dealt with under the legal authority of Supreme Court Decision Ex Parte Quirin.
As noted above………
From Military Commission Order No 1: “Evidence shall be admitted if, in the opinion of the Presiding Officer………the evidence would have probative value to a reasonable person.”
Note that “probative” means “serving to prove.”
As already pointed out, the US has at least 51 sets of “Rules of Evidence.” Here are a couple:
From the California Evidence Code: “Except as otherwise provided by statute, all relevant evidence is admissible.”
From the Iowa Rules of Evidence: “All relevant evidence is admissible”, except as otherwise provided by the Constitutions of the United States or the state of Iowa, by statute, by these rules, or by other rules of the Iowa Supreme Court.”
Note that “relevent” means “bearing on the matter at hand.” So I don’t see a whole lot of difference between the military rules and these two randomly selected civilian rules except for the exceptions noted in the civilian statutes. But as I said before, most of these exceptions are not likely to apply in these trials. If you think some are, then I already linked to the Federal Rules of Evidence so that you can be specific.
You might consider that most of these exceptions have come about because courts have decided that such evidence is not “relevant” or doesn’t have “probative value to a reasonable person.”
zigaretten, I appreciate your taking the time to post so extensively. Needless to say, I disagree with you on many points.
I just cannot see how just calling a man an “illegal combatant” makes him so. I cannot see how these people are guilty of “war crimes”. I am not saying it cannot be so, I am just saying I don’t see it. And BTW, AFAIK Milosevic was not tried by a military tribunal so that argument is out.
It seems the appeals issue has improved from the original order and I am glad to see that although I have not looked at it in detail to assess whether it is a legitimate appeal or a rubber stamp.
>> It isn’t a question of “foreigners” vs Americans. It’s a question of accused war criminals vs persons not accused of war crimes.
Oh yes it is. The order clearly says only foreigners are subject to it. An American citizen accused of the same crime would not be subkject to the tribunal for the very simple reason that it would probably be found unconstitutional. And, the way I see it, if it is not good enough justice for American citizens then it is not good enough for anyone. That is my main objection.
I am not going to get deeply into the rules of evidence and i could take your word that they are quite similar to the ordinary rules of evidence for courts martial but as I have said, I cannot admit that the accused should be subject to the military tribunals on the two main objections I have: that American citizens are not subject to them and that I do not see the crimes they are accused of as subject to military justice. That, IMHO, is enough to invalidate the processm, inclucing the rules of evidence which should be those of civil courts only restricted where necesary and to the minimum extent possible, to protect secret information and witnesses.
I just have a very strong feeling against this whole thing.
Again, thanks for your informative post.
I’m bumping this so I can read it in the AM when I’m sober… sorry for any inconvenience caused if anyone thought there was a new post.
It seems strange that the US can invade anther country, abduct some people from there, and then put them to trial.
Given that the US was an invading power, how can the US decide that actions taken against it in Afghanistan are breaking US laws when those laws did not apply at all ?
I could actually understand this in the case of US citizens attacking US forces, this might amount to treason, but even so I would have thought that there has to be a case of personal conscience on their part as a defence.
How can it be possible for Afghanis to be tried for attacking a foreign army invading his own land ?
It looks like incredible arrogance, unless someone can put me wise.
Actually, most of the Guantanamo prisoners aren’t (supposedly) simple Taliban troops being held for attacking US troops. They are mostly supposed to be Al-Queda operatives or at least supposed to have trained in their camps. However, most of them are just soldiers, IMHO, and training to be a terrorist is not a crime.
From the Constitution of the U. S. of A, Article 1:
Section 8. The Congress shall have power to…
…define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
If conspiracy to commit murder is a legitamate crime then why wouldn’t conspiracy to commit a war crime involving murder be a legitamate crime?
A thousand apologies to casdave and dutchboy208, that second quote was from dutchboy208’s post.
zigaretten, I have no doubt that conspiring to commit terrorist acts is a crime. No question about that. But every accusation deserves to be judged withh all the guarantees of due process. If the tribunals do not meet the constitutional requirements for American citizens then they do not meet the requirements of fair justice for anybody. Justice should be the same for everybody.
Is not invading another nation and occupying it considered to be an international crime ?
Or rather, a “crime against the law of nations”
I also think there has to be some problem in terms of human rights when detaining children, and some of those in Guantanamo Bay are thirteen years old and being held in a separate camp from the main one.
What justification does the US have for calling them Al-Qaeda operatives?
So Congress set up the Guantanamo camps and the trial process? From the media, you’d think it was an executive decision!
From Fiehe v. R.E. Householder Co. :
“The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding.”
Notice:
From Military Commission Order No 1:
“The Prosecution shall furnish to the Accused, sufficiently in advance of trial to prepare a defense, a copy of the charges in English and, if appropriate, in another language that the Accused understands.”
“The Prosecution shall provide the Defense with access to evidence the Prosecution intends to introduce at trial and with access to evidence known to the Prosecution that tends to exculpate the Accused.”
Opportunity to be heard:
From Military Commission Order No 1:
“If the Accused so elects, the Accused may testify at trial on the Accused’s own behalf and shall then be subject to cross-examination.”
“The Accused may make a statement during sentencing proceedings.”
Right to defend in an orderly proceeding:
From Military Commission Order No 1:
“At least one Detailed Defense Counsel shall be made available to the Accused sufficiently in advance of trial to prepare a defense………….”
“The Accused may obtain witnesses and documents for the Accused’s defense, to the extent necessary and reasonably available as determined by the Presiding Officer………”
“The Accused may have Defense Counsel present evidence at trial in the Accused’s defense and cross-examine each witness presented by the Prosecution…………”
“The Appointing Authority shall order that such investigative or other resources be made available to the Defense as the Appointing Authority deems necessary for a full and fair trial.”
Just saying, over and over, that the commissions lack due process doesn’t make it so.
As for the Constitution, the Supreme Court has allowed the trial of civilian American citizens by Military Commission in both Ex Parte Quirin and Madsen vs Kinsella. The only Supreme Court decisions, that I know of, which have gone against Military Commissions have been based on questions of jurisdiction. And please note that jurisdictional disputes arise between civilian bodies as well, so this in no way implies that the Supreme Court considers Military Commissions to be in any way unconstitutional or even inferior to civilian courts.
In addition, I thought I already made this clear but I’ll say it again; American citizens who are civilians have been tried by Military Commissions in the past and probably will be tried by Military Commissions in the future.
Finally; if these Commissions are, in fact, unconstitutional; then the accused have nothing to worry about because each and every one of them, citizen and non-citizen, has the right to file a petition for habeas corpus in a civilian court which will give the Supreme Court an opportunity to decide the matter.
The fact is that the executive order is clearly discriminatory. When accused of the same crime a foreigner will go before a military tribunal and a US citizen to a civilian court. I cannot accept that discrimination. The law should be blind but here you get different guarantees depending on your nationality and I think that is morally wrong.
Furthermore, the only reason I can think of for this is that if an American citizen was brought before one of these thribunals, their legality would immediately be questioned and this is a way of getting around that just like holding the whole farce outside of US soil is a way for the US government to get around other points of the law. The government of the USA should not be using such technicalities to get around the letter and the spirit of the law.
It is unequal justice and it is wrong. You find “separate but equal” acceptable. I find “separate” means “not equal” and is morally wrong.