Military tribunals

Gimme enough time and I’ll pick on everybody equally _

Here’s the other side of the coin: Chinese Suspects Use the System to Remain in U.S. – Courts Hesitate to Return Even an Accused Heroin Trafficker to Beijing’s Harsh Criminal Justice. What goes around comes around.

I’m a Canuck and don’t know if the US can use panels of justices rather than juries to try civilian cases below the supreme court level. I think an answer to this question is clearly important; if indeed you can, it gets around the problem of the responsiveness of juries to emotional appeals.

Onwards. The status of the people who will be tried under military tribunals is somewhat shaky. Here’s why:

The last time military tribunals were used was in 1942 to judge eight German military personnel who had blown things up in the States. They were members of the armed forces of a state against whom the US had issued a formal declaration of war. The US has not issued a declaration of war against a state in this conflict. Bush issued a declaration of war against terrorism; this is the closest we’ve got. What that means is, using the 1942 precedent, the accused would have to be terrorists to be tried in military tribunals.

As carnivorousplant pointed out, however, you can’t declare someone to be a terrorist until you legally prove that they are–i.e. until you convict them of terrorist actions. So far as I know, in a legal sense the US should treat these actions as civilian murder. We’ve used the example of Timothy McVeigh, and I think the analogy holds, because militia groups are organizations quite frequently dedicated to the downfall of the American state, as is Al Qaeda. The difference is that domestic militias are made up of people who hold American passports as opposed to foreigners; this difference, however, is erased by extradition laws: the fact that non-citizens tried on US soil have full legal rights just like citizens.

But even if there is a legal way to get around these objections, I still don’t think there’s utility in doing so. At such a critical hour, it would be painful to have the rulings of the courts trying these accused parties come under a cloud of suspicion and questions of their legitimacy. It’s been asserted that military tribunals are just as trustworthy as civilian courts, if not more so. I disagree. I think there are substantial legal points, especially the lack of right of appeal and the two-thirds majority instead of unanimity rule, that tend to give the impression that something fishy is going on.

Moreover, I would remind defenders of military tribunals that countries like Spain are refusing to allow accused parties residing there to be extradited unless the governments can be assured of an open civilian trial. What that means is that it will be difficult to even bring the accused to trial, let alone obtain a conviction. Whether or not this refusal is justified is, I think, beside the point: we want to bring the guilty to justice, and Spain etc. have a certain degree of leverage in this matter.

I think the big problem is with compromising national security. Again, no lawyer I, but shouldn’t there be some regulation whereby certain parts of the content of a trial can be prevented from being released to the public? (It could be that I’m still thinking on Canadian time–a young offender doesn’t have his name released to the public at all.)

Anyway these are just my impressions.

-SE

someone_else, you make good points. I think as time passes and things return to normal, these measures will be seen in another light and we will hear the horroro stories of those unfairly targeted. Check out this Newsweek article. It is easy to forget we are talking about real people whose lives and families can be destroyed by some bureaucrat who has decided he has reason to do so.

Washington Post: Legal Scholars Criticize Wording Of Bush Order The summary of the article is that the executive order is poorly written and that it grants the president too much power therefore relying on his goodwill. My position is that any power which can be abused will be abused because that is what history teaches us. We should not rely on persons, we should rely on laws and a system of checks and balances. Giving too much power to someone is asking for trouble.

The article I linked in my previous post is chilling. Hundreds of people jailed indefinitely without explanation… a few hunger strikes… as the Russian comedian used to say: What a country!

Oh no…not Yakov Smirnov!!!

sailor, thanks for the cite. That article is quite biased. Here are a few examples: [ul][]The initial story sympathizes with a long-time US resident from Jordan who was picked up. You have to read carefully where it says, “federal agents who told him his visa had expired and implied that they had information linking him to a terrorist plot.” Assuming his visa had really expired, he was breaking the law. Also, no matter how long he had been here, he might indeed have been supporting terrorism. []An early part of the article says, “A manhunt that has swept up 1,200 men.” You have to read much farther down to find out that half of these people have been released; only 603 ar being held. []The article says, “Nonetheless, it is far too soon to declare that the attorney general is undermining basic freedoms or tearing holes in the Constitution.” Then the article goes on to explain that these arrests are actually Consitutional. So, it’s not “far too soon” to say that the AG is “tearing holes in the Constitution.” It’s flat-out wrong. [] A bold-faced sections is entitled, “KANGAROO COURTS? The text below goes on to say,”…will the military tribunals turn into kangaroo courts? That seems doubtful under the scrutiny of a critical and watchful press and Congress…" Anyone reading just the heading would assume that these tribunals would be kangaroo courts. Furthermore, it’s an unsubstantiated slander to imply that these tribunals would be kangaroo courts absent “…the scrutiny of a critical and watchful press and Congress.” The article gives no evidence that the military tribunal would not be honorable on its own. [/ul] Regardless of whether one agrees or disagrees with an article, it’s valuable to develop a sensitivity to spin and bias.

While I agree that it’s too much to say that the military tribunals will, with certainty, become kangaroo courts, I also think it’s too much to say, with certainty, that they won’t. Moreover I would contend that when the state is contemplating suspending someone’s civil rights, it has to give a pretty damn good reason and a pretty damn good reassurance that the suspension will not be abused. I say the onus is on the state in this one.

On the first count, as I’ve said, you can’t act on the assumption that the accused is a terrorist until you prove it–i.e. obtain a conviction. This is problematic.

On the second, I don’t really see, “Don’t worry, folks, this private trial without right of appeal and with the particulars (including prosecuting and defense advocates, jurists, time and place of trial) decided solely by the judge, will work without a hitch” as an adequate reassurance. A basic one would be right of appeal to a higher court. I think this is absolutely necessary.

december you can’t be serious.

>> The initial story sympathizes with a long-time US resident from Jordan who was picked up. You have to read carefully where it says, “federal agents who told him his visa had expired and implied that they had information linking him to a terrorist plot.” Assuming his visa had really expired, he was breaking the law.

You can’t be serious when you support this. Three weeks in jail for not renewing his visa? Would you also support the same thing if he was a US citizen who was driving on an expired drivers license? That is breaking the law too.

>> Also, no matter how long he had been here, he might indeed have been supporting terrorism.

Please! Anyone, including you, might be supporting terrorism. But there is this principle called the presumption of innocence. The fact is he was let go after three weeks and was never charged with anything.

You think it is alright for a government to lock up hundreds of people on which they have no reasonable suspicions and to terrorize them in fear in the hope that they may get lucky and one of them will confess? This is terrorism and it is an abomination for any decent person. Terrorising innocent people is not what a decent country should be doing.

I will add that old hands in the FBI have questioned this course of action. They have said that the traditional system of watching known terrorists, wiretapping, infiltrating, etc. is what works best as that leads to incovering the network but that this type of action being done now for political gain and public comsumption will backfire for two reasons. One is that when you detain a terrorist, you have notified the rest of the network of what you know and they can act accordingly. Secondly, you are alienating the whole population where you would most likely find informants and infiltrators. If you have Arab terrorists you need friends in the Arab community more than anything else and these tactics are making enemies out of possible collaborators. It is not only immoral, it is also a dumb thing to do.

>> An early part of the article says, “A manhunt that has swept up 1,200 men.” You have to read much farther down to find out that half of these people have been released; only 603 ar being held.

So of 1200 only half have been jailed without cause for three or four weeks and you think they should be happy? And the rest who are still in jail are “only” 600 so that makes it OK? I do not think it is OK for any government to abuse one single person. Does it make you happy to know the Chinese government “only” abused X people last year? I find one person abused is one person too many. Or would you like to be in their shoes?

>> Furthermore, it’s an unsubstantiated slander to imply that these tribunals would be kangaroo courts…

One of the most basic principles of western culture is that we are governned by laws, not by people, and we have a healthy distrust for people so we have a system in place which provides for checks and balances. If you give a person a group a power which can be abused you can be sure it will be abused. That is why we require the police to get a search warrant from a judge. Because the police are part of the case and have an interest and so we require a judge, who is one step removed, to confirm that the search is indeed reasonably necessary.

I do not care if the military courts are formed by the most honorable men in the world. I prefer a system of checks and balances. We do not elect an honorable man for police chief and not require him to get a search warrant before he enters your home. We do not say “to hell with the legislative and the judiciary, we don’t need them, we’ll just elect an honorable man to be our president-dictator and we have nothing to fear”. Sorry, bad idea.

The entire executive order stinks and there is a good reason it applies only to non-citizens, a discrimination which is unsustainable. If and when a foreign national is tried by a military tribunal there is going to be a price to pay in terms of international relations and moral authority of the US abroad. Just by this fact alone it is probably a good idea to not use it. And it may well be that it is never used.

Word.

Legal, Constitutional means to protect the public

sailor, you say he “failed to renew” his visa. Actually, a work visa may well be un-renewable. E.g., an H1B visa lasts for 6 years, but it cannot be renewed. A new one can be applied for, but only after the person has lived outside the US for a year.

But, that’s a quibble. We both know that this Jordanian man is being held because of suspicion that he might be involved with the terrorist, not simply because he was breaking the law. My point is that Newsweek has no way of knowing what the grounds are for suspecting him. Their article is written as if he’s obviously not involved with terrorism, but Newsweek actually has no idea.

I don’t agree with your recommended restrictions on government action at a time when terrorists are in our country with the intent of committing mass murder. Citizens need to be protected.

Where your evidence that the government has, " no reasonable suspicions." You just made that up.

Yes, I have seen these statements. However, the “old hands” didn’t prevent 9/11. And, terrorists might kill thousands more civilians while the old hands are infiltrating.

sailor, it would be disgusting if the Bush administration thought there was no value to locking up 603 people, but were doing so only for political gain. It would be disgusting to make such a serious charge without evidence. Please provide evidence or retract your charge.

SAILOR, are you then strongly in favor of rewarding informants, e.g., with US citizenship? Or, do you simply disagree with anything the US does?

No, it makes the article biased.

A noble sentiment. And I find one incinerated civilian one too many.

I thought we verified in earlier posts that there normally ARE checks and balances in military tribunals, when they are used to try American military personnel. Why are you still claiming that there are none?

IMHO the government should take reasonable steps to protect the public as long as they’re both legal and Constitutional. Incarcerating suspected terrorists is both legal and Constitutional.

>> We both know that this Jordanian man is being held because of suspicion that he might be involved with the terrorist, not simply because he was breaking the law.

Exactly. That is my point. And if he is held because of a founded probable cause then his nationality should be irrelevant and there should be a procedure where the police or FBI get the OK from a judge who concurrs there is sufficient evidence that warrants holding that person. The fact is they bypass any control and hold only noncitizens on minor, unrelated charges but they would not hold a US citizen the same way. This is wrong no matter how you look at it. I have no objection to a procedure which allows any suspect held, regardless of nationality, if there is the safeguard of a judge giving his assent. Otherwise it is wrong. And, again, why is it only acceptable for non-citizens?

>> Citizens need to be protected

NO! People need to be protected. Honest people, citizens or not, need to be protected from terrorists whether they be citizens or not. With these actions the government is not only not protecting anyone but harming some. They have rounded up foreign nationals for little or no cause but they have not done the same with citizens. This is wrong. The reason to hold someone is the probable cause not his nationality.

>> Where your evidence that the government has, “no reasonable suspicions.”

That is why we have judges. If an independent judge rules there is probable cause then I believe there is a reasonable safeguard in place. But the police or FBI should not have the discretion to hold someone indefinitely without having to justify it to anyone. Maybe in China, but not in the US.

>> SAILOR, are you then strongly in favor of rewarding informants, e.g., with US citizenship?

If the FBI determines it works I have nothing against that.

>> Or, do you simply disagree with anything the US does?

You obviously have not read much of what I have posted in the past or what I am now posting in other threads. This is probably the first time I have such a strong disagreement with US policy and in the past I have more often than not defended US policy. Check my past posts and see. And it is not only me. A lot of intelligent people all over the country and all over the world object to this. And, as I said, it could well be that military tribunals are never used because doing so would generate a load of problems, domestic and international. Unless it is worth paying that price I think they will avoid using them.

Desperate times make for stupid legislation.

*sailor *, it seems to me that your POV would be exactly right if terrorists hadn’t declared war on the US, and on the West in general. If 9/11 had merely been a case of theft plus arson, then I’d agree with all your points.

However, IMHO our policy must reflect the fact that the US is under attack by ruthless enemies.

Given this difference in our POV, I don’t think we will ever agree.

Sailor, you see my point?

I was watching Bush at the Florida town meeting asking himself a question.
I’d also been reading about Mussolini.
I can’t help but wonder how many governments have done really nasty things with the support of their citizens.

Yes, as I have said before, when people are worried it is easy to get them into a frenzy and approve of any measure, even if it is burning witches or communists. That is why it is the responsibility of the leaders to be calm and act rationally. Unfortunately sometimes they just use the situation for their own ends.

President Bush has said that he hopes the civil courts can handle any cases but he “just wants to have the option” (of military tribunals). I think the reason for this statement is he realises there would be a high price to pay, both at home and abroad, if he would use them.

December, saying “but we are at war” is not enough reason, in fact, it is not reason at all unless you can prove those measures have any positive effect, which you haven’t. You can say, “but we are at war so it’s reasonable to burn all the witches” and it makes as little sense. Arresting foreigners who are not terrorists is zero help in fighting terrorism, in fact, it makes the situation worse. Not been as tough on US citizens who may be terrorists is just as stupid. You want to fight terrorists or you want to fight foreigners? Rounding up foreigners just because they are foreigners can well backfire as you make enemies out of people who could be your help. I cannot see how judicial supervision of those held under custody presents any problem unless you tell me the judges are on AlQaeda’s side. Supending this is zero help in fighting terrorism. You might as well suspend the Clean Air Act and say “we are at war” as a justification. We are at war is not a justification unless you can prove those measures will help win the war and there is no proof of that. I am all for winning the war but I am not for using it as an excuse for trampling over our rights and our morals.

Besides, the situation is not desperate. More people die in the US from crimes related to drugs and there is a “war on drugs” in effect. But there has been no need to suspend basic rights for that. Many countries have suffered terrorism and violence worse than the USA and have managed to not curtail their civil rights and those that have were severely criticised by the US.

The policy you are defending is wrong and is as effective as burning witches. You have not proved it is any more effective than burning witches or virgins or whatever.

I think it is just to easy to feel outrage and take it out on anyone but what is required in difficult times is the capacity to remain calm and think what is the most effective course of action, not just lash out in a way that will backfire. I think you are very mistaken. You and I have been disagreeing very strongly for a while now but I do want to say I appreciate your polite tone. I do respect you and thank you for that.

I’ll be away for a few days and I will not be posting until I get back. Just so you don’t think I lost interest in defending my POV _

december

Closed (in camera) courts are extremely rare. You get them for issues involving extreme confidentiality. Its is a sign of an open society with faith in its justice system that anyone can attend and watch any trial. Open courts mean accountability to the public. This should not be abandoned except in the most extreme cicumstances. I concede that evidence from sources where disclosure of that source might result in the source being killed is such a circumstance, but in that case, a gagging order preventing identification of the witness is more appropriate than a closed court.

The outcome of trials in the US in the past have set off riots in other countries. This is hardly a reason not to have an open criminal trial.

Just re-read Sailor’s second from last post, and I agree whole-heartedly with his cogent argument.

Its a matter of putting it into perspective. More people do die every year in the US from a variety of crimes and carelessness than terrorism, even taking into account the events of 11 September. The horrific flamboyance of the attack on the WTC and the Pentagon seems to have instilled a sense of panic which is reflected in the actions by the executive. Why does it take an external threat to discard the system which is in place - or at least, set up an alternative, untried and inferior system?

My fear, which I’ve mentioned elsewhere, is that the US does not have enough evidence to convict a member of al-Qaeda, and this is why the tribunals have been thought up. The standard of proof is lower.

This point of view from outside the US is that:

  1. It demeans the ‘reason’ for the U.S.A., one nation under God, and all that. The moral reasons and imperative for American actions on the global stage are diminished.

  2. If it is a covert action to strengthen the Bush’s unilateralism tendencies (which were quite evident pre-September 11), then it will have an effect. Non-US nationals will take a step back, or not visit the U.S., because of the extra risk. Your position as the moral leader of the West is gone; you have slipped back to the pack, maybe even trailing it now.

  3. Also, the perception of power of the military/industrial complex is strengthened. I don’t think Americans, in general, are aware of the militaristic nature of their society. No other western nation has so many armed men, men in uniforms, military hardware, the National Guard, FDI swat teams etc etc on the streets as the U.S. - it makes an incredible impact on the first-time visitor to your country. The point I’m making is that the military takeover of the judicial process (in this area) is sympomatic of the militaristic nature of American society. Will it be the last? This external viewer would have to say no.

I agree with most of your points, but no other Western Nation won two World Wars without us.

The National Guard and FBI thing is because Federal Troops can’t be used locally or as policemen. The FBI does apparently shoot babies now and again.