Military tribunals

Great Debates
1

In other threads I have been butting heads with people over this issue and, the more I think about it, the clearer I see it. I am not an expert in this topic and I do hope others who are knowledgeable about the law will chime in.

It is my understanding there are some basic principles which are universally recognized as necessary for a fair administration of justice and among them are:

1- Trials should be public so that the public can be informed as to their fairness. Only exceptionally, and for good reason, should some facts, identities, etc. be kept secret.

2- The accused should be allowed proper legal representation without undue restrictions.

3- The accused should be allowed to confront and question any and all witnesses and evidence presented against him and to present witnesses and evidence of his own.

4- The parties should have the option of appealing the ruling to a higher court.

5- Justice should be blind. This is crucial and it means justice should be administered without regard to who is the accused, whether he be powerful or not, rich or poor, black or white, citizen or alien.

I am sure there are others but these are the ones that I can remember off the top of my head. The USA has been very critical of China because their trials are secret, the accused are not allowed proper defense, the evidence is kept secret from the accused so that he cannot rebut it, and the verdicts are not appealable. At least the Chinese courts do not impose de iure a worse process on foreigners; in fact, Americans tried in China almost always get better treatment de facto than the Chinese do.

Now, with President Bush’s executive order allowing for military tribunals, the USA has done China one better as, not only does it break the first four conditions but also the fifth because only non-US citizens can be tried by that process. The trials can be held in naval ships or military bases, the proceedings are secret, evidence can be withheld from the accused, the verdict is unappealable and, worst of all, this process can only be applied to non-American citizens.

It is not acceptable in a civilized country, it is a shame and it is morally and ethically indefensible. If it applied to American citizens the Supreme Court of the US (SCOTUS) would have declared it unconstitutional faster than I can grab my crotch and say “Try this!”. By making applicable to non-citizens only I suppose the chance that it will find its way to the SCOTUS are very greatly diminished but the Americans who are against it are the ones who understand what America stands for. It is a mistake of historical proportions and by making apply only to foreign nationals the president shows he does not consider it good enough for American citizens and I ask, why not? Why are people of any nationality not entitled to the same judicial guarantees?

It is not only un-American but it is anti-American. It is against everything America stands for and it is a shame. America is alone in this among civilized nations. I know of no other case where a country’s laws deny non-nationals the due process to which its citizens are entitled.

European officials have already said Europe will not extradite anyone to the USA unless the US guarantees they will give them full due process and not the kangaroo court of a military trial. They are very right in doing this and it just shows what Europe thinks about the issue.

In the 50s the paranoia with communism led to the shame of McCarthyism where many people were accused and suffered greatly and very unjustly. It was a shameful moment and so is this.

To those who say desperate times require desperate measures I will say, they are very right but (1) these are not desperate times by any stretch of the word, (2) the most difficult and needed desperate measure is to remain calm and think rationally and (3) let us not forget what we are trying to save which is our culture of freedom and human rights. Burning the house down so our enemies will not have the chance to do it themselves is a pretty stupid course of action. We should try to preserve what we have, not destroy it.

2

http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html

However civil liberals may put twist it, these “people” (read: terrorist swine) have indeed declared war on the USA, and therefore seem eligable for military justice on their crimes against humanity. They will be allowed legal representation, etc. This is no worse than was granted to the Nazi leaders at Nuremburg, and this justice is no less than what is given to our own military personel. Nor does this order target foreigners exclusively, re:

Sec. 2. Definition and Policy.
(a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)

(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order."

Not that the order targets INTERNATIONAL TERRORISM. Forigners are not going to be rounded up and tried.

I contend that some of these normally desirable principles only apply to civil courts, and with good reason.

Still awaiting info about military proceedings, but I do not think they will be kangaroo courts.

3

smiling bandit, please note from the Executive Order that the sole standard of proof that one is an “international terrorist” is that the POTUS determines so in writing.

Imagine the likely scenario:

Achmed, a recent immigrant from Pakistan, a Pastush, is questioned by the FBI based on telephone records showing he’s made calls to his wife’s sister’s husband in Islamabad, who Pakistani officials have listed as a Taliban sympathizer (which list Pakistan has helpfully provided to the US gov’t). Not liking Achmed’s answers, the Bureau detains him and forwards his name to the SecDef. Rumsfeld provides his weekly list of names to our esteemed Commander in Chief, who “determines”, in writing, that there is reason to believe Achmed (and the others) have engaged in or conspired to commit etc. etc. etc. Achmed is then tried in secrecy, without benefit of an attorney of his choice, without the opportunity to see evidence against him, and without recourse to a process of appeal.

But it’s okay, because he’s been shown to be an international terrorist.

4

Not only that but now wwe suddenly find out Achmed has resided in the US for a few years and has become a US citizen. Suddenly the proccess that was good enough for him while we thought he was not a citizen, suddenly become not good enough and he is entitled to something else. Why? Why is the US security threatened by giving Achmed the non-citizen due process and it is not threatened by giving Achmed the citizen that same trial? The only thing that has change is a piece of paper in his pocket. Why can the US government reveal its sources in one case and not in the other?

Expediency is not the way to go. Due process is all about protecting individual rights. Many more people in the US are killed every year victims of crime than were killed in the WTC. If you want expediency you can start by getting rid of the due process that lets people like OJ Simpson go free … and what you have is something like Afghanistan where they feel no need for due process. That is what we are supposed to be fighting against.

I am tremendosly glad the European Union has said they will not accept it.

5

Actually, that’s not true. The order provides for

and that order applies to any charges against the suspected terrorist. The UCMJ gives military courts the ability to convict and sentence with a 2/3 vote, except in charges that could be punishable by death. In those cases, both the conviction and sentencing need a unanimous vote.

6

>> However civil liberals may put twist it…

I object to that label very much. I consider myself a civil conservative and it is because I am conservative that I oppose this measure which is unprecedented

7

I’m against this for more or less the same reasons sailor is, but I think it might be slightly better with one modification – allow the tribunals to set a maximum punishment of 20 years.

You want to sentence the guy to life or the chair, you gotta have the full, open trial.

8

sailor: I consider myself a civil conservative and it is because I am conservative that I oppose this measure which is unprecedented

But plenty of us liberals are opposed to it too. This truly is an issue on which everyone who cares about civil liberties can unite, irrespective of our other political differences.

9

A few notes, if I may, on the Uniform Code of Military Justice (UCMJ):

[ul][li]The term “uniform” means it is applied uniformly across the Service Branches.[/li][li]There really should be an intermediate level between administrative actions and courts-martial[/li][li]The administrative disciplinary procedure under Article 15 is nor more, nor less, than a Kangaroo Court.[list][]For members of the Navy and Marine Corps serving on sea duty, there is no option to request trial instead, nor is there an option to appeal the verdict, but only an option to appeal the severity of the punishment rendered.[]The individual deciding to take the case to Article 15 (aka “Captain’s Mast” aka “Office Hours”) is the individual deciding the verdict.[/li][li]This proves it’s not uniform.[/ul][/li][li]The Summary Court-Martial is merely a more exacting, and more punitive, version of Article 15. The accused can still request trial by a court-martial in lieu.[/li][li]Even under Article 15 or Summary Court-martial procedures, the accused’s career can be ruined or drastically curtailed.[/li][li]If the accused violates a law, then it really shouldn’t matter the composition of the jury–civilians obviously have the ability to serve on juries in the rest of the United States. If there were an option to consider certain offenses under the UCMJ as misdemeanors, then it would make sense to dispose of those under Article 15, with the appropriate modifications to recognize that, yes, Article 15 is, you guessed it, a court, and dispose of actually serious offenses in a full court procedure.[/list][/li]
In short: Change the UCMJ now. It ain’t Justice.

10

I trust that everyone recognizes that this is a hypothetical question. So far as I know, no one has been brought up on charges before a “military commission” in the course of the present difficulties. There is however every chance that one of the hundreds of people now held might be. If so, it will be nearly impossible to keep it quiet. Among other things the convening of a military commission will involve the participation of military and Justice Department lawyers, a fair number of whom, we may think, regard the use of non-judicial tribunals as apathetical to US principals of justice. Some one will talk and then there will be all hell to pay.

The present executive order provides for the trial of people who the President suspects to be terrorists in tribunals where the usual restraints on the state’s police powers are relaxed. This presents two real problems. First, when there is a determination by the President that the accused is eligible for trial by a military commission, the referral to the commission amounts to a directive from the President to the members of the commission to “give the guilty bastard a fair trial.” Second, the use of military commissions with their secret proceedings, lack of transparency of evidence and confrontation, restricted ability to defend and restricted appeal is so contrary to accepted ideas of due process of law as to threaten any pretence to legitimacy on the part of the commission and the national government that set it up.

Remember that the last time we did anything like this was in the case of a bunch of inept German saboteurs, members of the German armed forces, secretly landed on our shores by the German Navy, operating out of uniform. At the time the US was in a conventional nation against nation war with Germany. The accused were tried by military commission under the procedural and evidentiary rules of the Articles of War then in effect and in pretty strict accord with the traditional customary law of warfare. We were dealing with what amounted to spies in the traditional method of treating spies.

The situation the executive order supposes is a much different one. There is no conventional declared war between recognized nations and there is no generally accepted set of customary rules to deal with the situation. The situation we have is much more analogous to the war on piracy than to WW II.

To simply declare, in the press or by some self-serving Presidential declaration that the suspects are terrorists does not satisfy any requirement for fairness and comes dangerously close to simply turning the whole thing into a modern lynching.

11

With regard to Monty’s comments about non-judicial punishment in the US armed forces, which seem to be irrelevant to this discussion, let me offer a few more comments.

Non-judicial punishment under Article 15 of the Uniform Code of Military Justice is a method for a commander to deal with minor offenses in his command without recourse to the courts martial system. A service member can always refuse non-judicial punishment. A service member has the power to demand that the commander prefer court martial charges. Because of the way the system works this amounts to telling the commander to fish or cut bait because the commander then has to kick the whole thing up the chain of command for some other commander to decide whether to send the charge to court or not. The civilian parallel is the right to refuse to pay a traffic ticket and demand a trial. If the service member refuses non-judicial punishment and is offered a summary court martial (the equivalent of traffic court) he can refuse that and demand special court martial with a real lawyer appointed or hired, a real judge and the option for trial to the judge without a court martial board, real rules of evidence, a real record and a real appeal.

It seems to me that Monty’s comments are misinformed and have damned little to do with this thread.

12

SG:

Not only are my comments very well informed, since y6ou essentially repeated something I posted, they also have quite a lot to do with this thread! I’m merely discussing the current “workings” of the UCMJ.

Yes, requesting that the Skipper refer a case to a court is similar, but by no means is it exactly like, refusing the standard bailment on a traffic ticket and requesting trial. You see, the traffic case is still a misdemeanor case; the military case, REGARDLESS OF THE OFFENSE, is still a federal conviction–NOT a record of misdemeanor.

13

Monty,

What, may I ask, does non-judicial punishment have to do with convening military commissions under the President’s executive order? God Lord, man, speeding in Yellowstone Park is a federal offense. Stay on point, would you? This is about replacing the Article III courts with military commissions, not Article 15.

14

I heard more about the searching and ‘eavesdropping’ orders on CBS earlier-it scares the living crap out of me.

How can our government DO this? Isn’t it unConstitutional?

:mad:

15

Setting the scene: During the last quarter of the 19th century Cuban rebels were fighting for independence from Spain and the Spanish army there fought to keep what was then a part of Spain. They were fighting for their country. The rebels were not strong and could not hope to defeat the Spanish army in battle so they resorted to guerilla warfare but their main aim was to disrupt the economy. For this they threatened the sugar cane mills: anyone found working would be killed. This meant that the only way cane could be cut and milled was under the direct protection of the Spanish army. But as soon as the army left, the mill owners and anyone who had worked were attacked by the rebels. I do not know if the term was in use then but these tactics were clearly what today we label terrorism: to threaten and intimidate the civilian population so as to make life, especially productive economic life, impossible. The production of sugar decreased greatly as the mills stopped grinding and processing. In this climate of insecurity and fear the Spanish army tried to keep some order and protect the sugar harvesting and milling. For an excellent account of the history of Cuba I recommend Hugh Thomas’ Cuba or the Pursuit of Freedom. That sets the background of my story.

A couple of years ago I visited Havana and in the main square is the Hotel Inglaterra and on the front of it a plaque which called my attention. It was dedicated to a young captain of the Spanish army by the name of Nicolas Estevanez and, as we shall see, the plaque is there for all the wrong reasons but the story behind it is well worth telling.

It turns out in this atmosphere I have mentioned of insecurity and terror in Havana, some students had been tried and found guilty by a military tribunal. I have no idea how serious was their crime as the plaque does not say but the fact is the eight students were sentenced to death by the military tribunal and captain Estevanez and his company were to carry out the sentence.

Come the moment captain Estevanez refused to carry out the order. When he was told if he refused to serve his country he replied (and this is cited in the plaque) something to the effect of “I am willing to serve my country to the end but before my country come humanity and justice and decency”.

The plaque is there for all the wrong reasons because it tries to make him appear pro-Cuban independence and anti-Spain which he wasn’t in the least. He was an honest man who did what he believed was right and refused to do what he believed was wrong and the Castro regime who put up the plaque would, under similar circumstances, have had him shot without much delay.

In fact, for his insubordination, Captain Estevanez was expelled from the Spanish army but after that he never felt regret for what he did, much the contrary he was always very proud of it. Later in life he went on to become an elected member of parliament and then a minister in the government. He was obviously a man of courage and deep convictions.

When the situation seems so dire that it seems any means are valid is when we need the most people who have the courage to remind us that the ends do not justify the means and that unjust means will not create justice in the end.

I just thought I’d share this story which I found inspiring on a hot day in Havana a couple of years ago. If you ever go to Havana, seek out the main square and give my regards to the Hotel Inglaterra and to the pretty girls who drive the tuk-tuks (tricycle taxis, that’s actually the Thai name but I don’t know any other) parked in front of the hotel. Check out the plaque and pray that we have enough people among us who can keep their heads calm when everybody about them is losing theirs. We need them.

[sub]Where the hell is Rowan? Three weeks ago I gave him a letter for Garcia and he still hasn’t returned![/sub]

16

smiling bandit’s post makes no sense to me any way I look at it. It is late and I will only mention one sample:

So the order itself says only individuals who are not United States citizens are subject to the order but smiling bandit says it does not target foreigners exclusively… I must be missing something… who else does it cover?

At any rate, I am not extremely concerned with the intricacies of military law. I am concerned with the executive order and I am specially concerned with the last point: that it is applicable only to foreigners because I am convinced that if the choice was everybody or nobody there s no freaking way the American people would accept it.

17

Two questions for those opposed to the proposed military tribunals (note: please don’t interpret my asking of these questions as support for military tribunals–I don’t, but I also don’t assume they would simply be kangaroo courts):

  1. What if a particular defendant could not be prosecuted without jeopardizing national security; i.e., the government would have to reveal intelligence sources, etc. to put on its case, but doing so would then jeopardize those sources and compromise national security. For example, suppose we have someone high up in Al Qaeda who identified a particular defendant but to reveal this source would result in his certain death and cut off the flow of further intelligence that could prevent further terrorist attacks or aid us in the war. At the same time, without this information, the defendant could not be successfully prosecuted. Would you agree that such a trial should not be public or is the public interest in open courts more important such that this person should not be prosecuted at all?

  2. Would you want to be the judge or on the jury for any of these trials? Obviously, that alone is not a reason to toss aside civilian trials in favor of military tribunals, but it has to be part of the equation, I think.

18

KSO, the order applies only to non-US citizens and US citizens are entitled to due process. What is the answer to your questions in the case of US citizens? Whatever is the correct answer in that case should be the correct answer for non-US citizens. Or not?

I would never think others are not entitled to the same procees I am entitled.

19

What it has to do with it is the underlying presumption, apparently held by the Prez, that the military judicial system is somehow more fair than the civilian. Note that, apparently, “fair” to the Prez means “likely to return the verdict I dema…er, hope for.”

You surely are aware that such an offense is a civil misdemeanor and violation of same does not have anywhere near the consequence that a military member declining “administrative” punishment will incur.

Since it’s a discussion about replacing a civilian governmental activity with a military activity, I’m quite certain that ANY aspect of military justice is relevant to the discussion.

20

SG:

Perhaps a bit more explanation is in order on my part.

You see, the actual courts conducted under the statute known as the UCMJ in the United States are pretty good when it comes to preservation of the accused’s rights, constitutioanl protections, and so forth. Of course, this does not include the summary court which, in fact, is merely a more punititive form of the Article 15 procedure. Article 15 and summary courts are both kangaroo courts. There is no way around that, especially when discussing Sailors and Marines on sea duty. It’s statutorily not a court, but factually is.

Now, the president has issued an executive order which stipulates a military tribunal but without all the constitutional protections present in the currently mandated courts (military or civilian). In short, this executive order has essentially established an Article 15/Summary Court-martial system for the accused, but with a different makeup of the deciding party.

To me, that shows that this is all relevant to the current discussion.