Military tribunals

Great Debates
21

I agree that due process (in the American constitutional sense) is necessary, and if that can’t be guaranteed (and apparently it can’t), then military tribunals should absolutely not be used. On the other hand (just to play devil’s advocate), theoretically anyone Bush designates as subject to trial by a military tribunal is someone who, if they were physically in Afghanistan, would be fair game for the U.S. to simply kill on sight, so surely trial by a military tribunal in the U.S. is preferable to being shot, bombed, incinerated, crushed, or what-have-you, unless, of course, it is simply a kangaroo court. Back to the other hand, however, given that this person is in the U.S., they aren’t going to be shot on sight and there are no clear-cut reasons why they shouldn’t receive the benefit of U.S. constitutional rights.

I guess what I was really getting at is whether there are any circumstances under which you would accept a military tribunal as the appropriate forum or, alternatively, are there circumstances under which you would accept a trial being conducted in secrecy to protect national security and the personal safety of the people involved in the trial? I do think that’s a fair concern–didn’t the embassy bombings coincide with the sentencing of WTC bombing defendants? And another WTC bombing defendant was scheduled to be sentenced on 9/12, I believe…

All in all, I’m not comfortable with the idea of military tribunals because they go so strongly against the grain of American constitutional principles. At the same time, if legitimate, serious national security concerns exist that would impede the ability to prosecute, I’m not sure how to reconcile the two because to me they are of equal importance.

22

>> theoretically anyone Bush designates as subject to trial by a military tribunal is someone who, if they were physically in Afghanistan, would be fair game for the U.S. to simply kill on sight

No, no way! If he can be tried by a military court he can be tried by a civil court and he can definite not be “shot on sight” (without committing a war crime). There is NO excuse. If he is still an armed enemy, yes he can be shot but he cannot be tried. Once he is in custody and becomes a prisoner he absolutely cannot be shot and he can just as well be given full due process of law and all judicial guarantees.

>> I guess what I was really getting at is whether there are any circumstances under which you would accept a military tribunal as the appropriate forum or, alternatively, are there circumstances under which you would accept a trial being conducted in secrecy to protect national security and the personal safety of the people involved in the trial?

I guess we coul;d dream up the most extreme circumstances, like half of the US is already under the control of the enemy and they are gaining ground but in any case, I would never accept that only foreigners be subject to it. It’s all or nothing. If the country is at stake I can’t see why an American would be allowed to bring it down and not a foreigner.

And I repeat that we should not be fighting for a country but for the virtues and values it stands for. Personally I feel exactly zero allegiance to any country but I value greatly certain principles. The day the US tries people in secret military courts and China guarantees fair trials, that day I will very happily defend China. The day the US ceases to stand for freedom, that day it will not be worth defending. I hope we do not have to see it.

23

One, I’m not going to get into a prolonged dispute about the non-judicial punishment system in the armed forces. If anyone wants to carry on about that they should set up a fresh thread.

Two, at this point the use of military commissions to try any one for any thing is a hypothetical. No commission has been appointed and no one has been brought before such a tribunal. This is not to say that the fact that the national government has set up the groundwork to do so is not a fair subject of discussion. It has already become a debating point in Congress. I can only hope that when this thing firms up a bit more the advocates of an open system will prevail and the idea of subjecting foreign nationals to what may well become Star Chamber proceedings will quietly die. The mere fact that George Will thinks military commissions are a good idea under a military necessity approach goes a long way toward persuading me that they are a bad idea under the present circumstances.

24

I do not think it is a good idea to say “well, the law is there but they have not put it to use yet so let’s just hope they never do it”. If the law is there it means they could do it and the time to protest against it is now.

Another point I’;d like to make is that most people here are thinking this law is intended only for bad guys caught in battle in Aghanistan. The fact is the US government has right now over 1000 foreigners in jail on nebulous suspicions and any one of these guys would probably be the first to enjoy the view of a military tribunal.

I am remembering the story of some guy of middle east descent who owns a business and has a family and had the bad luck that by some coincidence in names the FBI suspected of him and they arrested him after 9/11 and had him jailed for weeks. It turned out there was nothing but the coincidence in names and that he had flown some business trips that coincided with some other guy just by chance. Now, in a country, no a world, with so many millions, chances are somebody is going to fit a profile just by chance. The FBI screwed up with this guy and ruined his life and his business, not to mention what his wife and kids must have gone through. You want a military tribunal acting expeditiously on this kind of screwup? I sure don’t. Would you want any of your loved ones or yourself facing a military tribunal under those circumstances? I sure wouldn’t.

When I discuss some things with my Chinese friends I often say, “it is all the civilised world that disagrees with China on this issue, don’t you think there is a good chance it is China that is wrong and not the rest of the world?” Now I would say “It is the entire rest of the world that has expressed their repudiation to this, couldn’t it be that it is America who is mistaken?”

25

The main reason we need tribunals is that our court system is too slow. Other countries can try someone for murder and hang him in six months. We have a ten year minimum from arrest to “final” verdict, with no actual end to possible appeals.

The system should be streamlined for all cases, not just war-related. But in our country, almost all the ruling class has a law degree.

26

I don’t see why the slowness of the court system is an argument for military tribunals, Firstfoot. As long as terrorists are under lock and key where they can’t commit acts of terrorism, that’s fine with me. Sure, railroading them through from arrest to execution in six months via a secret military tribunal will reduce their harm potential even further. But I will need very strong evidence that such extreme measures are absolutely vital to the continued security of the nation before I’ll agree that they’d be worth the huge amount of damage they’ll do to civil liberties and to our reputation as a free country.

27

Two things:

  1. SG: Excellent use of a movie title! Wished I’d remembered it first.

  2. FF: Instead of berating you (as many SDers would, including me) for posting such obviously blatantly patently ridiculous WAGs as you just did, I’ll go ahead and ask the proverbial Straight Dope Query[sup]TM[/sup]:

CITE?

28

The Washington Post: Europeans Reluctant to Send Terror Suspects to U.S., Allies Oppose Death Penalty and Bush’s Plan for Secret Military Tribunals

It is well worth reading as it says the UK would face a dilemma if they were the first to get Ben Laden as maybe they could not extrdite him to the US and that the US often gets around the extradition treaties: “Defense attorneys in Europe have alleged that the United States tries to circumvent the death penalty issue by seeking extradition on minor charges – and then indicting for a capital crime once the defendant is on U.S. soil.”

29

“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?”

I accidentally included the hegative. I meant to say that it exclusively targets hostile foreigners, not US citizens.

“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.”

But you and a number of others are missing the point. This is a military tribunal under military law, it has related precedents (‘Ex Parte Milligan’ I believe). And under recent polls (in the paper today over here, most people have no fear of this law whatsoever. They aren’t just accepting it, we’re quite satisfied.

30

>> And under recent polls (in the paper today over here, most people have no fear of this law whatsoever. They aren’t just accepting it, we’re quite satisfied.

Yep, very true. Unfortunately it is easy to provoke this kind of reaction against foreigners in any country. The ignorant masses are easily excitable. In China, shortly after the bombing of their embassy, there was antiAmerican fury and they would have approved the dismemberment of Americans. Would that make it right? In Germany in the 30s the great majority of the people were against the Jews and supported their government. That did not make it right. Respect of individual rights is of paramount importance but people easily forget it. President Bush has chosen to go against the many members of Congress of both parties who are against this and to go with the masses. It is a bad idea of which president Clinton was often accused. Demagoguery is never a good thing and popular support does not make a wrong right.

Cooler heads should prevail or the USA might find itself butting heads with many other countries besides Afghanistan.

31

sailor: Cooler heads should prevail or the USA might find itself butting heads with many other countries besides Afghanistan.

Which is exactly what we don’t need now, considering how dependent antiterrorism efforts are on large-scale international cooperation. This is not the time to antagonize our allies by mulishly insisting on a martial-law-type process that violates some of our own fundamental principles for the sake of very minimal security gains (if any).

32

This is true and quite scary. Yesterday NPR cited a poll of 1010 people and 64% favored millitary tribunals. That’s a hair under 2/3 of the people. Furthermore, the poll sounded pretty straight-forward and didn’t sugar coat the issue.

33

I bet if those tribunals were applicable to Americans the support would diminish significantly. Most Americans just do not understand the complexities of dealing with other countries and many think isolationism is a viable option. It is easy to provoke knee-jerk reactions but cooler heads should foresee the consequences. If America would choose to use the military tribunals the international backlash is going to be enormous but the people questioned in the polls do not take that into account.

The American people, like any people, can easily be led into a frenzy which can have very bad consequences. I am sure McCarthyism enjoyed very wide support for a while but the consequences were the destruction of many people’s lives. Leaders need to lead the right path, not to follow the worst instincts of the people.

34

I think you’re right sailor.

NPR had quite a few good points yesterday. One of which was that 6 years ago, the U.S. asked Peru not to try a U.S. citizen using millitary tribunals.

If the U.S. does re-instate millitary tribunals, it will compromise its abiliby protect its citizens from facing tribunals in other countries.

I think they also mentioned that Spain will not extradite their suspects if the U.S. puts them in a tribunal.

35

sailor kindly invited me to post on this thread. I accept. I think military tribunals are a good idea, because [ul] []They’re legal []They’re Constitutional [] There’s a precedent for them under FDR [] A trial in a regular court would be inappropriate for what was more-or-less an act of war [] The judge might let the trial get out of hand, like the OJ Simplson trial. [] If, say, Osama bin Laden were acquitted after a year-long OJ Simpson-type spectacle, bin Laden would be a huge hero throughout the Muslim world. He could recruit lots more terrorists and kill lots more people. []AFAIK US military courts have generally produced justice – at least as much justice as civilian courts. []“It’s better for 100 guilty criminals to go free than for one innocent man to be convicted.” is a popular legal slogan that appears to apply in some courts. This would be a bad approach to trying al qaida terrorists. The acquitted 100 might acquire a hydogen bomb and kill 20 million people. A military tribunal gives us the best chance to avoid future attacks on the US and other Western nations using various weapons of mass destruction. [/ul] I’m sorry to criticize others, but I’ve been disappointed in the limitations on this thread. The President will use Military tribunals, because they will better protect people from future attack. I’m willing to debate this issue. However, I will not respond to a post unless it includes an explanation of why that poster’s recommended approach would prevent, say, a nuclear attack on Paris or the spreading of smallpox in Buenos Aires.

36

Yes, december and I have been having a lively exchange in this thread and the topic evolved to military tribumals so I invited him to continue that topic here.

>> They’re legal

Maybe, maybe not; in any case being legal does not make them right or moral or even useful.

>> They’re Constitutional

Maybe, mabe not. Let’s let the SCOTUS decide that, shall we?

>> There’s a precedent for them under FDR

Well, there’s a precedent for almost anything you can think of. That doesn’t make it right and it does not mean it will work.

>> A trial in a regular court would be inappropriate for what was more-or-less an act of war

Why? And why only for non-US citizens?

>> The judge might let the trial get out of hand, like the OJ Simplson trial.

A military judge could do the same. In any case you are indicting the entire civil judicial system as useless. And,in any case again, why is it that American citizens cannot be tried in the military tribunals?

>> If, say, Osama bin Laden were acquitted after a year-long OJ Simpson-type spectacle, bin Laden would be a huge hero throughout the Muslim world. He could recruit lots more terrorists and kill lots more people.

If, say, Osama bin Laden were acquitted after being found not guilty, the world would have immense respect for the USA. If Bin Laden is found guilty in a kangaroo court the world will lose much respect for the US even if they think he is guilty.

>> AFAIK US military courts have generally produced justice – at least as much justice as civilian courts.

So, please tell me why only foreign nationals are subject to them. Why? Please tell me. Why?

>> “It’s better for 100 guilty criminals to go free than for one innocent man to be convicted.” is a popular legal slogan that appears to apply in some courts. This would be a bad approach to trying al qaida terrorists. The acquitted 100 might acquire a hydogen bomb and kill 20 million people.

Punishing innocent people does nothing to prevent crime. On the contrary, it means the real criminals are still loose and you are punishing innocent people which is contrary to our morals and sense of decency.

>> A military tribunal gives us the best chance to avoid future attacks on the US and other Western nations using various weapons of mass destruction.

That is solely your view and I do not share it. It has not been proven in any way. And, even if it were true, a basic tenet of western civilization is that “the ends do not justify the means”. It is morally indefensible to sacrifice individuals for the convenience of the group. If bin Laden said “if you sacrifice a virgin I will leave you alone but if you don’t I will kill thousands” it is still morally wrong to kill a virgin, even if it means thousands may or even will die by not doing it. Our entire civilization is based on the concept of individual human rights. Once that goes out the door, you have opened the door to all sorts of evils. Trampling over individual rights for the convenience of the state has never produced anything good, only evil.

>> I will not respond to a post unless it includes an explanation of why that poster’s recommended approach would prevent, say, a nuclear attack on Paris or the spreading of smallpox in Buenos Aires.

No, it is up to you to prove military tribunals will, in fact, prevent this better than civil tribunals and without eroding America’s basic values. I do not believe this which you take for granted.

Let me ask you this: Why is it that the law, if it is necessary and just, is only necessary and just when the acussed is a foreigner? Suppose when we arrest binLaden we find out that he had acquired US nationality in the past, how does that change the need or not to try him in a military tribunal?

You seem to imply you do not trust the civil courts to produce justice and that, if tried by them some terrorists may get away. That is quite a serious acussation which I do not share but let us assume for the sake of argument it were true, in that case, why would it be OK for US citizen terrorists to get away and continue to blow up the world? Is it OK for US citizens to blow up the world? Shouldn’t everybody be tried the same?

Do you realize many of those terrorists have lived in western countries long enough to become citizens? (It takes only 5 years I believe) The ones detained in Spain had all acquired that country’s nationality even they were all foreigners. Same thing in the UK. Possibly they could have done the same in the US. Why would that grant them the right to a civil court, and then continue to blow up the world, according to you?

I contend the executive order is

  • A serious step back in judicial guarantees and civil rights
  • Unnecessary as the civil courts can do the job
  • A serious problem with other nations who will refuse extraditions
  • and most importantly of all, discriminatory and immoral.
37

Through repetition it has become a truism that the war on terror requires a great deal of international terrorism. I disagree. The US has the power to win the military side. I’m very appreciative that the UK supported us in Afghanistan, but we could have won with just American forces.

We’re not operating under a US resolution, so we don’t need a majority there.

We do need cooperation from countries like Yemen, which are now harboring terrorists. Yemen won’t be influenced by the purity of the US judicial process. They’re influenced by the fact that we’re winning. Similarly, Pakistan supported us because they want our financial support, not because the military dictator there cares about civil liberties.

Many of the Middle Eastern countries dislike the US anyhow. They will tend to be on our side to the degree that we show a willingness to use our power effectively.

Europe, Latin America, sub-Saharan Africa, and Asia are not essential. I’m grateful for their broad support, but we could and would pursue this war without their support if we had to.

38

Another point in our favor:

A military tribunal, while harsh, can probably be counted on to be more fair than any civilian trial. In the USA right now, the only people whom the defense would allow on the jury are basically brain-dead corpses. The defendants could NOT get a fair trial. A military, tribunal, on the other hand, will consist of honor-bound individuals, who while likely to convict in a court-martial, will be more fair. Its their duty to do so.

39

December: do you even know of a person named “Jack?”

First: I’m hoping you meant “UN resolution” above and not “US” as you posted.

Second: Learn some geography. There are countries around Afghanistan. They are not exactly enamoured of the United States. They wouldn’t appreciate anyone just camping out in their country without their permission. It takes a lot of assistance from the local governments to do the stuff currently being done without getting interference.

Third: WTF do you mean by “war on terror requires terror?”

40

:confused:

right.

I agree, but their support won’t depend on our specific trial structure or some fine point of civil liberties. They’ll be motivated by general respect for the US, by money, and by wanting to be with a winner or fearing to be with a loser

My first sentence ought to have read, “Through repetition it has become a truism that the war on terror requires a great deal of international cooperation.” Sorry for the confusion. :frowning: