I wish I could provide a percentage. Unfortunately I don’t have the data, the expertise or the time.
However, I tried thinking of all the high-profile cases that I could remember, and that was the list I posted. I’d invite posters to think of other high profile cases and remind us of how they turned out.
To which december responded:
december, I am afraid you’ve been wooshed in the most wooshing way. You might want to re-read SG post again. His entire post was sarcastic, not only the last part which you did notice.
>> There is an appeal process. Witnesses are confronted.
I believe you are wrong. I believe the verdict is final and there is no appeal. Also evidence and witnesses can be presented to the tribunal in secret without the possibility of the defense to rebutt them. Since the defendant is not free to choose who defends him, this is just kind of moot. They’ll just find a “defense” attorney who wants they guy hanged.
Trying a European national in a military court would raise a stink of major proportions and taking the attitude of “screw them, we can live without their help” is just ignorant of how much the US depends on other countries.
I’m not sure about these absurd trials that Bush/Ashcroft have dreamed up, but in ordinary military courts martial I’m quite sure there is an appeal route to the Secretary of the service (Army, Navy, Air Force) in question.
One weakness, in my opinion, is that the prosecution is represented by a member of the Judge Advocate division, all lawyers, the defendant is sometimes represented by non- lawyers.
The whole problem with military courts is that all of the parties involved report to the same hearquarters and the appeal is to that same headquarters. Congresses are quite loathe to interfere with the way that military services enforce discipline. To extend that relatively uncontrolled process to non-military individuals is, I think, a really atrocious thing. I say “relatively uncontrolled process” because I think the fairness of military trials is ultimately too dependent on the good intentions of those in charge.
>> I’m not sure about these absurd trials that Bush/Ashcroft have dreamed up, but in ordinary military courts martial I’m quite sure there is an appeal route to the Secretary of the service (Army, Navy, Air Force) in question.
The order itself can be found at here and refers in great measure to military court procedure so you would have to be a military lawyer to understand the full implications and extent of the order. I am relying on what I have read in the media which, I assume, although I know this is not always the case, I assume was written by people who know what they are talking about. The order provides for “submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose” which, could be seen as a form of automatic review but I cannot consider it an appeal and I gather this would make any other appeal impossible. I would be much more comfortable if it was automatically appealed to the SCOTUS.
It voids the entire concept of the adversarial process when you have the same entity being judge, accusation and defense. I assume all military trials are appeallable to the SCOTUS? Maybe these too?
Another point I would like to make to those defending the point of view that “this is war”. Acts which may be a crime in time of peace may not be crimes in times of war so, in fact, it may well be that considering these acts as war crimes may act in benefit of those being tried. It may be that the acts being tried would be more grave if considered common crimes than if they are considered as acts of war. A point to ponder.
SG’s comment was sarcastic; my response was serious.
Robert Bork wrote a well-reasoned article on this topic. I recommend you use the link and read the whole thing. He made the following poionts: [list] [li] there appear to be only four options: trial in a federal court; trial before an international tribunal; trial before a military tribunal; or setting the captives free. []Trials in federal courts have features that make them totally inappropriate for the trial of terrorists.[] Jurors often respond to emotional appeals, and, in any event, would have good reason to fear for their and their families’ safety if they convicted. []Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. []Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another. []An open trial and proceedings of that length, covered by television, would be an ideal stage for an Osama bin Laden to spread his propaganda to all the Muslims in the world. Many Islamic governments would likely find that aroused mobs make it impossible to continue cooperating with the U.S.[/li][] in open trials our government would inevitably have to reveal much of our intelligence information, and about the means by which it is gathered. ** in the trial of the bombers of our embassies in Africa, the prosecution had to reveal that American intelligence intercepted bin Laden’s satellite phone calls: “As soon as that testimony was published, Osama stopped using the satellite system and went silent. We lost him. Until Sept. 11.” **[]Trials before an international tribunal would have all of these defects and more.[] Picking the members of the court would itself be a diplomatic nightmare. [] Our prosecutor would be helpless to avoid a propaganda circus and the disclosure of our intelligence capabilities and methods. [] convictions, if obtained would lead to impassioned dissents and the martyrdom of the terrorists. []the establishment of international tribunals seems part of a more general move to erode U.S. sovereignty by subjecting our actions to control by other nations. []In military tribunals, propaganda by televised speeches would be impossible and any required disclosure of intelligence methods and successes would be secret.[]Since trials could move far more efficiently and appeals are cut off by the president’s order, punishment of the guilty would be prompt. []military tribunals are not, as they have been called, “kangaroo courts” or “drumhead tribunals.” Even during the Korean War, before the widespread reform of the military justice system, military courts manned by officers, in my [Bork’s] opinion and that of many others, were superior to the run of civilian courts, more scrupulous in examining the evidence and following the plain import of the law. “If I were guilty, I would prefer a civilian jury; if innocent, a military court.”[] military tribunals were found constitutional in Ex parte Quirin (1942).[]Bush’s order for trials before military tribunals should * include* U.S. citizens. Quirin held that Americans can be tried there.
december, the link you posted did not work for me and I believe this link should work. I read the article with interest.
It says the order should include everyone irrespective of nationality which would solve my main complaint. The rest of the reasoning falls apart if you do not do this. If revealing a source is damaging for American interests, it is just as damaging wheteher it was revealed to prosecute an citizen, a non citizen or Donald Duck. Also, by removing this discrimination, it shows a measure of equality and fairness by holding everybody to the same standard. The problem in this case is that there would have been much more domestic opposition. Even in this case the president has discretion as to when to use it so, it could have been written to cover everyone and used only against foreigners.
It may take an expert lawyer to argue whether military tribunals are constitutional or not, but anyone will see it is unfair to treat Americans accused of terrorism better than foreigners accused of the same crime. As I say, change that and you have removed the main part of my objection. If Americans think is is good enough for themselves, I think we can agree foreigners have much less to complain about.
>> Trials in federal courts have features that make them totally inappropriate for the trial of terrorists. Jurors often respond to emotional appeals…
Well, if you accept that as true, then you are just saying the court system and the jury system are flawed and should be replaced. – I might even agree with that in part but let’s change the system as a whole and not make exceptions for the guys we don’t like.
>> Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another.
Again, if the system is flawed, it should be fixed as a whole. The rule of law means not making exceptions one way or another. You do not change the laws post facto.
>> An open trial and proceedings of that length, covered by television, would be an ideal stage for an Osama bin Laden to spread his propaganda to all the Muslims in the world. Many Islamic governments would likely find that aroused mobs make it impossible to continue cooperating with the U.S.
I disagree with this. It would be an example to the world.
>> the establishment of international tribunals seems part of a more general move to erode U.S. sovereignty by subjecting our actions to control by other nations.
This is one of the stupidest things I have heard. First of all, a nation accepts the jurisdiction of internatrional tribunals voluntarily. Secondly, all international cooperation comes from countries agreeing to some limits and controls in order to get the same thing from the other nation. This is a good thing as it results in mechanisms to resolve problems rather than going to war. The European Union is the result of “erosion of sovereignty” among the member nations and I cannot think of anything better. Yes, France gets to have a say in the shape of German spark plugs but in exchange Germany gets to have a say in the size of French tailpipes.
Nations who are very concerned about their sovereignty are usually nations who are doing things they shouldn’t be doing. China has repeatedly taken refuge behing their sovereignty to shield their human rights abuses. Sorry but I do not buy that. We are all citizens of the world and brothers and sisters. If a man anywhere is being tortured, I do not care that his torturer is of his same nationality. I do not accept that I am not entitled to stop it if I can. Sovereignty should be limited and severely eroded if you ask me. If the USA would accept more input from Europe and Europe more from the USA nothing but good can come of that.
The fact that the USA only accepts verdicts in its favor and rejects those that are unfavorable makes the USA look pretty bad. There is nothing nobler than accepting a verdict you disagree with. International courts are a useful and valid tool to resolve international conflicts but how can you expect others to accept their verdicts if the USA doesn’t?
The USA would gain a lot of international respect if it would accept the jurisdiction and verdicts of international tribunals. European nations have done it and I do not think their citizens feel less protected by that, they rather feel more protected.
>> Since trials could move far more efficiently and appeals are cut off by the president’s order, punishment of the guilty would be prompt.
While I like “prompt” I think “fair” and “just” are much more important. The right to appeal is considered basic for a fair administration of justice. Countries which have no appeals process are not considered to have an acceptable system of justice.
In summary, I can agree the American system of justice has some shortcomings and there is room for improvement. My answer is to make whatever changes are needed to the entire system, not to sidetrack special cases to a system which will produce the result we want.
Is this the same Robert Bork that wanted to outlaw birth control and said freedom of speech only applies to government speech?
Sailor, I’m about due for a sig change soon-would you mind if I used this?
Guin, of course you are very welcome. Wow, I am honored, You mean you think I actually said something intelligent? Wow. 
Dammit Sailor, why do you have to stick this prejudice into your otherwise intelligent posts?
Do you think income is indicative of intelligence or open mindedness?
Where the hell do you live?
This an ad homimen attack, and it’s based on two complete falsehoods.
I agree with your analysis, sailor.
This makes sense in theory. Unfortunately, Bush can’t fix the entire court system, but he can use military tribunals for certain terrorists. Politics is the art of the possible.
Maybe it would be both. Lovers of civil liberties might appreciate an open trial; millions of Islamic people might become followers of OBL.
In fairness to Bork, he specifically argues that a military tribunal would provide a more fair trial.
Regarding appeals, I found Bork’s writing ambiguous. Either it means, “There are no appeals,” or it means, “At any point, the President can decide to end the appeals process for a given individual.”
I wish we could fix the system, but IMHO it’s impossible to fix it quickly enough for use with this group of terrorists. It would take many years, if it could even be done at all.
How can we have different types of trials for terrorists when before a trial we don’t know that they are guilty?
Hardly, december. I’m simply asking. And I’m also saying that if it is true, then Bork is hardly a credible source on the Constitution and civil rights-since it is WELL KNOWN that he takes a very very strict view of them.
Well, he did say that there is no Constitutional right to privacy, IIRC, and said then that there was no right to practice birth control based on that. (I’m checking my sources on this…)
http://www.claremont.org/amer_const/Erler_Bork.cfm
http://www.blackelectorate.com/articles.asp?ID=123
From my understanding, he’s extremely biased and has his own agenda. Of course, I could be wrong.
http://www.wbz.com/now/story/0,1597,237675-364,00.shtml
(lists some of his opinions)
I’m just pulling these off the internet now. I haven’t really had a chance to review them, and will do more research later, but right now I’m just in a hurry. Mostly I’m looking for sound bites, not really spin on the guy.
http://www.eppc.org/publications/xq/ASP/pubsID.54/qx/pubs_viewdetail.htm
http://www.aei.org/e%20drive/web/public/tae/taemj97t.htm
An interview with the man.
Huh? Just because he takes a strict view of the Constitution he’s not a credible source? Doesn’t follow. Or are you really saying that because you disagree with him he’s not a credible source?
No. It’s that his strict interpretation tends to want to infringe on the rights of others.
Mr. Bork is a legal scholar, author, and lecturer. He hasn’t been a Judge since 1988. He is not part of the Government. How is he or his interpretations in any position “to infringe on the rights of others”?
any trailer park in Arkansas is much more representative of your “civilization”.
>> Dammit Sailor, why do you have to stick this prejudice into your otherwise intelligent posts? Do you think income is indicative of intelligence or open mindedness?
carnivorousplant, I think it called hyperbole or exageration or whatever and I think you have taken it the wrong way. It was just a retort to a post which seemed to imply that America equals civilization and the rest of the world does not. It was totally unrelated to economic status or personal worth and in no way reflects on the people who live in trailer parks, but I hope you understand that if we compare as expressions of civilization the Louvre with a trailer park, the Louvre would not necessarily come out behind. I had no intention of insulting anybody and I regret any distress my post may have caused you.
Yeah, well, pick on Mississippi next time.