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/.
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.
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:
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.
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.
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.
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…
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.
Correct.
Correct, except for the use of quotes. Top Secret and other levels of classified information are sometimes classified to protect the source from death.
Actually, any federal trial may be held on a military base if the court concerned and the administration (the President) agree to that venue.
Correct.
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.
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.
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:
By contrast, I understand from this thread 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.
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.
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.
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)
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.
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.
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.
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?
