# Is Terror Court a good idea? **URL:** \ **Category:** Great Debates\ **Created:** [November 14, 2001, 1:06am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229 "2001-11-14T01:06:39Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 14, 2001, 4:59am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/21 "2001-11-14T04:59:58Z")
Actually, the laws (and, yes, I do mean “laws” as in laws passed by Congress) governing military courts have also been developed to ensure the accused is granted a fair trial. Here is a good start for those wishing to enlighten themselves as to the United States’ military law: [http://jaglink.jag.af.mil/](http://jaglink.jag.af.mil/). And for the love of whatever deity you hold dear, please don’t anyone start up with “military members are government property” or “you give up your constitutional rights when you join the military.” In the United States, at least, those are just bullshit. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 14, 2001, 5:41am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/22 "2001-11-14T05:41:39Z")
> [@](#): > > \*Originally posted by Jodi \* > \*\*I’m confused. What’s the basis for the extension of military jurisdiction over a foreign national? It sure as heck isn’t that he or she is in the military, 'cause he/she ain’t. > > I’m not getting why the military court would have jurisdiction if the civil court would not, and I’m not sure that “because the President said so” means much. > > Is anyone aware of any other situations wherein the military exercises jurisdiction over non-military persons, whether citizens or not? \*\* During WWII, there was the case of the German saboteurs: [EX PARTE QUIRIN, 317 U.S. 1 (1942)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=317&invol=1). A half dozen Germans, trained in sabotage, were landed in the U.S. and assigned the job of sabotaging U.S. military assets. They were quickly caught and were tried before a military tribunal, on the basis that they violated the laws of war by levying war without wearing a uniform indicating their combatant status. The Supreme Court upheld the jurisdiction of the military court. One passage of the Court’s opinion seems particularly relevant to foreign terrorists on U.S. soil: > [@](#): > > The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment. As well, I believe that the President has the power to create “Article II courts” that are not subject to the restrictions on the federal courts created by or under Article III. Article II courts can be created in areas under U.S. dominion which are not part of the U.S. - for example, in one case an Article II court sat, ad hoc, in the American sector of Berlin (not at that time part of West Germany) to try two people accused of hi-jacking a plane from Poland to West Germany. The Article II court had jurisdiction over the two foreign nationals by virtue of their presence on territory under U.S. dominion, even though it was not part of the U.S. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 14, 2001, 5:54am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/23 "2001-11-14T05:54:00Z")
This troubles me. My understanding, filtered through various pundits, is that a military court does not have the same openess and the same requirement that its proceedings be public. The justification being offered is that this will protect our “intelligence sources”. Which means whatever they want to say it means. The chances of actually capturing OBL are very slim indeed, by my estimation. But somebody is going to have to stand trial, and actual documentary or physical evidence is almost certain to be non-existent. Therefore the prosecutions case is likely to be dependent entirely on witnesses testimony. Most likely Al-Queda members ratting out a superior in the network. Will someone stand in front of a firing squad. Bet on it. Will the interests of justice be served? Not likely. But they damn sure ain’t gonna take any chance of a “Johnny Cocoran” spoiling the party. ---
**Author:** ![jaybee](https://avatars.discourse-cdn.com/v4/letter/j/6de8d8/32.png) [@jaybee](https://boards.straightdope.com/u/jaybee)\ **Post date:** [November 14, 2001, 12:36pm UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/24 "2001-11-14T12:36:34Z")
Would some of you being crying over indiviudual rights after 10 million americans are killed in a smallpox epidemic. Don’t believe those numbers, just look at the flu outbreak of 1919. We are at under attack, we are at war, and the president is not doing anything unconstitutional. He is given these powers by the constitution to protect us in time of crisis. Wake up and live in the real world, its a scary place we have a right and a responsibilty to defend ourselves and our children first, forgien nationals are second. ---
**Author:** ![Dave\_Stewart](https://avatars.discourse-cdn.com/v4/letter/d/e274bd/32.png) [@Dave\_Stewart](https://boards.straightdope.com/u/Dave_Stewart)\ **Post date:** [November 14, 2001, 12:40pm UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/25 "2001-11-14T12:40:58Z")
> [@](#): > > \*Originally posted by jaybee \* > \*\*Would some of you being crying over indiviudual rights after 10 million americans are killed in a smallpox epidemic. Don’t believe those numbers, just look at the flu outbreak of 1919. > > We are at under attack, we are at war, and the president is not doing anything unconstitutional. He is given these powers by the constitution to protect us in time of crisis. > Wake up and live in the real world, its a scary place we have a right and a responsibilty to defend ourselves and our children first, forgien nationals are second. \*\* As a foreign national, I find it odd that you would impose one version of justice on me, and one on your fellow citizens. What makes a military court more appropriate? ( **Northern Piper** - thanks for Ex parte Quirin - its very interesting - I hadn’t realised the importance of uniforms in combat) ---
**Author:** ![kiffa](https://avatars.discourse-cdn.com/v4/letter/k/d78d45/32.png) [@kiffa](https://boards.straightdope.com/u/kiffa)\ **Post date:** [November 14, 2001, 12:58pm UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/26 "2001-11-14T12:58:14Z")
I’m not a lawyer nor in the military; I just get my info from the talking heads and websites so I am at the mercy of the messenger [keep that in mind when you visit any site]. Under the military law: a. the defendant has a lawyer and is tried by a jury or what is called a commission. Rather than 12 out of 12 deciding “beyond a reasonable doubt”, a military conviction needs only 2/3rds of the commission members’ consent. b. secrecy: the court is not open to the press unless they decide to open it. This allows “top secret” evidence to be presented without compromise. It “protects” the source and methods to gather intelligence. c. security: military trials can be held on a military base with greater security against attacks [ie: breakouts etc]. That doesn’t prevent terrorist attacks from occuring any place else in the US. d. Most significant aspects of judicial review are curtailed; appellate review and stringent federal rules of evidence. Review of the process and decision are by the Sec of Defense or the President. In these extraordinary times, I tend accepted the need for secrecy of intelligence sources and methods especially when we are talking about a network and not just one individual. I would like to see some phrasing that would allow the trial transcripts to be release over such’n’such event or so many years have passed. But it also seems to me that the same standards/methods should be applicable for American and nonAmericans accused of terrorism related to 9/11. Aren’t the secrecy and security issues the same in both cases? I’m still thinking about the implications of this decision. I’m still leary… d. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 14, 2001, 2:38pm UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/27 "2001-11-14T14:38:48Z")
> [@](#): > > \*Originally posted by kiffa \* > a. the defendant has a lawyer and is tried by a jury or what is called a commission. The accused (the term “defendant” is not used for military courts-martial in the United States) may avail himself of a non-military lawyer versed in military law. > [@](#): > > Rather than 12 out of 12 deciding “beyond a reasonable doubt”, a military conviction needs only 2/3rds of the commission members’ consent. Correct. > [@](#): > > b. secrecy: the court is not open to the press unless they decide to open it. This allows “top secret” evidence to be presented without compromise. It “protects” the source and methods to gather intelligence. Correct, except for the use of quotes. Top Secret and other levels of classified information are sometimes classified to protect the source from death. > [@](#): > > c. security: military trials can be held on a military base with greater security against attacks [ie: breakouts etc]. Actually, any federal trial may be held on a military base if the court concerned and the administration (the President) agree to that venue. > [@](#): > > That doesn’t prevent terrorist attacks from occuring any place else in the US. Correct. > [@](#): > > d. Most significant aspects of judicial review are curtailed; appellate review and stringent federal rules of evidence. Review of the process and decision are by the Sec of Defense or the President. Incorrect. The lowest level of court-martial is the Summary. That is essentially a more stringent form of Article 15 hearing and is not considered a federal conviction. Also, the accused may decline a Summary court in favour of a Special or General Court. The Special and General Courts-martial are the ones with commissions and/or juries and it would be one of these to which the accused would face under the current Executive Order. The review of a military court-martial in the United States is first by the General Court-martial Convening Authority, then by the Court of Military Appeals and finally by the Supreme Court of the United States. > [@](#): > > In these extraordinary times, I tend accepted the need for secrecy of intelligence sources and methods especially when we are talking about a network and not just one individual. I would like to see some phrasing that would allow the trial transcripts to be release over such’n’such event or so many years have passed. But it also seems to me that the same standards/methods should be applicable for American and nonAmericans accused of terrorism related to 9/11. Aren’t the secrecy and security issues the same in both cases? > > I’m still thinking about the implications of this decision. I’m still leary… I agree with you here. Personally, I don’t think it’s a good idea to have civilians of any nation tried by the military of any nation. The courts are supposedly constituted for specific purposes: military for military offenses, civilian for civilian offenses. Plus, the US government, IIRC, rasied a ruckus about a US civilian being tried for treason in South America by a military court there. BTW, my source for the “correct” and “incorrect” comments in this post is the link I already posted in this thread. Please review that link. Thanks. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 15, 2001, 3:10am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/28 "2001-11-15T03:10:27Z")
> [@](#): > > \*Originally posted by Dave Stewart \* > \ > ( **Northern Piper** - thanks for Ex parte Quirin - its very interesting - I hadn’t realised the importance of uniforms in combat) You’re welcome. At the risk of wandering into the Café, I first came across this principle in one of C.S. Forester’s Hornblower books, _Flying Colours._ Hornblower, Bush and Brown have escaped from custody in France, and are in a harbour, wearing the uniforms of French customs officials. They sneak aboard a British cutter that the French have captured, and liberate it. Once they’re on the cutter, waiting for the tide, this happens: > [@](#): > > ‘Brown,’ he said quietly, ‘run down to our boat and bring me my parcel of clothes. Run along now — what are you waiting for?’ > > Brown went unhappily. It seemed dreadful to him that his captain should waste precious minutes over recovering his clothes, and should even trouble to think of them. But Hornblower was not as mad as he might appear. They could not start until the tide turned, and Brown might as well be employed fetching clothes as standing fidgeting. For once in his life Hornblower had no intention of posing before his subordinates. His head was clear despite his excitement. > > ‘Thank you,’ he said, as Brown returned, panting with the canvas bag. ‘Get me my uniform coat out.’ > > He stripped off his colonel’s tunic and put on the coat which Brown held out for him, experiencing a pleasant thrill as his fingers fastened the buttons with their crown and anchor. The coat was sadly crumpled, and the gold lace bent and broken, but still it was a uniform, even though the last time he had worn it was months ago when they had been capsized in the Loire. **With this coat on his back he could no longer be accused of being a spy, and should their attempt result in failure and recapture it would shelter both himself and his subordinates.** By contrast, I understand from [this thread](http://boards.straightdope.com/sdmb/showthread.php?postid=1781646#post1781646) that Captain Jack Aubrey, similarly trapped in France, escaped wearing a bear suit. I doubt that a bear suit would provide the same protection under the laws of war. 😛 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 15, 2001, 3:17am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/29 "2001-11-15T03:17:24Z")
Getting back to **Jodi’s** inquiry, one of the best examples of this use of a military tribunal slipped my mind: namely, the Nuremberg trial. My understanding is that the four main Allied powers (U.K., U.S., France, and U.S.S.R.) all conferred the military tribunal with the authority to try the Nazis accused of war crimes. The domestic source for the U.S. to confer such power on the court would, I believe, be the President’s war powers under Article II - Germany had surrendered unconditionally, and was under joint military occupation. Most of those tried were members of the German military, but not all. Schact and Papen, for example, were civilians. They had certainly assisted in keeping the German government functioning, but they weren’t military members. Nonetheless, the Court asserted jurisdiction over them. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [November 15, 2001, 4:37am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/30 "2001-11-15T04:37:26Z")
According to [CNN](http://www.cnn.com/2001/LAW/11/14/inv.military.court/), Vice President Cheney declared that > [@](#): > > terrorists “don’t deserve the same guarantees and safeguards” of the American judicial system. Ummm, okay, but what about people who have been _accused_ of being terrorists? ---
**Author:** ![Dave\_Stewart](https://avatars.discourse-cdn.com/v4/letter/d/e274bd/32.png) [@Dave\_Stewart](https://boards.straightdope.com/u/Dave_Stewart)\ **Post date:** [November 15, 2001, 4:53am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/31 "2001-11-15T04:53:00Z")
> [@](#): > > \*Originally posted by MEBuckner \* > \*\*According to [CNN](http://www.cnn.com/2001/LAW/11/14/inv.military.court/), Vice President Cheney declared that > > > [@](#): > > > > terrorists “don’t deserve the same guarantees and safeguards” of the American judicial system. > > Ummm, okay, but what about people who have been _accused_ of being terrorists? \*\* Grrrr. Good call, Cheney, you brick. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 15, 2001, 5:33am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/32 "2001-11-15T05:33:04Z")
The more I hear about this, the less I like it. Sounds more and more like they don’t want to take any chances. Why? Could it be that for all thier certainty about who is guilty, they really can’t come up with the kind of evidence needed for a civil court? So that they need to pre-empt the appeals process? Seems like they want to grab 'em, throw 'em up in front of a drumhead court, shoot 'em bury 'em and forget ‘em. Sure can’t let those wussy Europeans get hold of them, they don’t have the balls for good ol’ fashion hangin’s. Naw. Can’t be. We don’t do that kind of shit, we’re Americans. Someone please tell me I’m right. But you better hurry. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [November 15, 2001, 5:48am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/33 "2001-11-15T05:48:41Z")
> [@](#): > > \*Originally posted by jaybee \* > \*\*I beleive that the constitution only applies to citizens of the United States and that under normal circumstances we allow it to be extended to people of other nations on our soil as a courtescy. Sort of you respect our citizens while they are in your country and we will respect yours kinda thing. > \*\* If your constitutionnal rights would apply only to your citizens and applied to citizens of other nations only discretionarily as a courtesy, it would be an extreme singularity amongst democratic nations. So, I know nothing about american law, but this concept seems really weird and unlikely to me… (apart the rights directly linked to your citizenship, like right of residency, obviously) ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 15, 2001, 5:49am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/34 "2001-11-15T05:49:46Z")
Apparently nobody believes what information is available to them. In the United States, courts-martial **follow the rules of evidence**. Clear now? ---
**Author:** ![Tejota](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@Tejota](https://boards.straightdope.com/u/Tejota)\ **Post date:** [November 15, 2001, 5:59am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/35 "2001-11-15T05:59:18Z")
Personally, I hope that Bin Laden never makes it to trial, but if he does, it is imperative that we **not** set a precedent for treating foreigners differently than citizens in a court of law. This will look like a kangaroo court to the rest of the world. If we do this, we give every tinhorn dictator cover for denying american citizens a fair trial. This is NOT a precedent we want to set. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [November 15, 2001, 6:00am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/36 "2001-11-15T06:00:21Z")
> [@](#): > > \*Originally posted by jaybee \* > \*\*Some innocent probably will get hurt, but the possible good outweighs the possible harm in my view. \*\* Not really an argument, IMO. You could say the same for any kind of crime commited by anybody, citizen or not. ---
**Author:** ![jaybee](https://avatars.discourse-cdn.com/v4/letter/j/6de8d8/32.png) [@jaybee](https://boards.straightdope.com/u/jaybee)\ **Post date:** [November 15, 2001, 6:48am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/37 "2001-11-15T06:48:39Z")
Clairobscur - You are right, you don’t understand American law. Our laws and the laws of many nations are applied in light of circumstances at the time the crime is commited. We have tougher laws in many communities for drunk driving during the holiday season for example. Many foriegners seemed perturbted that we are taking measures to bring the people who commited high crimes and treason and agaist the United States to quick justice. You underestamate our capacity to hate. We can be a very generous and forgiving nation the vast majority of the time. But screw us over like they did on September 11th and you will see a lot of pent up hate unleased. It isn’t pretty is it? Yes we are making exceptions to our own rules. Let’s pray that these exceptions bear some immediate fruit. You should not and can take Bin Laden’s vieled threats of nukes and bioweapons lightly. They are attacking us and we will do whatever it is we have to do. I for one appauld VP Cheney’s commits. Our governments priority now is with its own citizens, the people who elected them. And one last thing, not every forgienger who commits a crime is now going to be taken in front of a military court. Only thosed accused of treason, not immagration violations or civil crimes. We are still governed by laws, but WE get to decide how they are applied. It is our country after all. ---
**Author:** ![Tejota](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@Tejota](https://boards.straightdope.com/u/Tejota)\ **Post date:** [November 15, 2001, 7:03am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/38 "2001-11-15T07:03:04Z")
> [@](#): > > \*Originally posted by jaybee \* > And one last thing, not every forgienger who commits a crime is now going to be taken in front of a military court. Only thosed accused of treason, not immagration violations or civil crimes. We are still governed by laws, but WE get to decide how they are applied. It is our country after all. Well, that’s a relief. Since it isn’t possible for a foreigner to commit treason, I guess this whole ruling is moot. 😉 ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [November 15, 2001, 7:30am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/39 "2001-11-15T07:30:57Z")
> [@](#): > > \*Originally posted by Monty \* > Apparently nobody believes what information is available to them. In the United States, courts-martial **follow the rules of evidence**. Clear now? The problem–and it may in fact be a purely rhetorical problem of politicians shooting their mouths off–is that people like Cheney aren’t saying “We need military tribunals so that trials can be conducted under tighter security and sensitive intelligence sources can be protected from disclosure”. Instead, we’re getting talk which sounds very much like “We need military tribunals so we don’t have to worry about all that namby-pamby bleeding-heart ‘due process’ and ‘presumption of innocence’ stuff”. And even if this _is_ a purely rhetorical problem it can still matter, as the whole “crusade” flap showed. Granted, some people will say _any_ American, Western, or international trial of accused terrorists is a “kangaroo court”, but they shouldn’t be able to quote the Vice President of the United States in support of the proposition. I have seen it claimed that if you’re guilty, you’re better off going before a civilian court, but if you’re innocent, you’re better off before a court-martial. If so, then maybe Messrs. Cheney and Ashcroft need to be saying stuff like that. ---
**Author:** ![Dave\_Stewart](https://avatars.discourse-cdn.com/v4/letter/d/e274bd/32.png) [@Dave\_Stewart](https://boards.straightdope.com/u/Dave_Stewart)\ **Post date:** [November 15, 2001, 7:36am UTC](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229/40 "2001-11-15T07:36:19Z")
> [@](#): > > \*Originally posted by Tejota \* > \*\* > > > [@](#): > > > > \*Originally posted by jaybee \* > > And one last thing, not every forgienger who commits a crime is now going to be taken in front of a military court. Only thosed accused of treason, not immagration violations or civil crimes. We are still governed by laws, but WE get to decide how they are applied. It is our country after all. > > Well, that’s a relief. Since it isn’t possible for a foreigner to commit treason, I guess this whole ruling is moot. 😉 \*\* Phew! I’m relieved! I owe no allegiance to the US, so I’m off the hook! Thanks **Tejota**! 😉 Regrettably, **jaybee** , Americans do tend to travel to other countries. Some places will take offence to this law. Measures such as this might be reciprocated. That means it might not be a good thing for US citizens. I would hate, as an example which has just jumped into my head, to be a foreign investigative journo for Stern or somewhere (Stern reporters always end up in messes) doing a deep cover investigation on terrorists, and then end up in front of a military court. Or even have some bastard use me as a mule and slip some weapons schematics into my luggage while travelling. For future reference, how do I address a military judge? Its not “your Honour” is it? 😃 [Previous page](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229.md?page=1) [Next page](https://boards.straightdope.com/t/is-terror-court-a-good-idea/93229.md?page=3)