Agreed! And, hey, can we try to learn from our mistakes? If we rounded up Muslims and put them into camps like we did to the Japanese during WWII, can we agree that would be bad? We shouldn’t have done it then, and we shouldn’t do it now.
Sadly, I think this quote from the Washington Post says it all:
Bolding mine.
Enormous legal hurdles; I can understand the concern.
Could risk acquittals sounds to me like some in the Pentagon have already determined that the detainees are guilty and want the kind of trial that will produce that result.
“I’m proud that I was able to start with nothing, plan it, and have it work as perfectly as it did… I sleep clearly every night, if you give me the same circumstances,I’d do it again.”
[url=“BBC NEWS | Americas | Hiroshima bomb pilot dies aged 92”]cite
[/quote]
When they do it, it’s bad, when we do it, we’re white as the driven snow.
HOLD ON A MOMENT, HERE. Much of the unhappiness here seem to be a matter of semantics. Calling the courts that are to try these people a military tribunal does not automatically mean that the trials are inherently unfair, are kangaroo proceedings. As always the Devil is in the details. The late Administration set up a system that was purposely unfair and it was labeled as such by a number of uniformed lawyers, including some who were prosecuting the cases. If the proceedings can be run with the rules of evidence and procedure that afford them at least an appearance of reliability and impartiality, employing the rules of evidence and procedure used in general courts-martial in the US armed forces, observing the conventional rights of representation, confrontation, compelled process and appeal and the other so called niceties of American law then it should not make any difference whether the trials are done before a military tribunal or a Federal District Court.
As I understand the problem the tribunals set up by the Bush Administration deliberately avoided all that stuff, the legal niceties. You remember that the service judge advocate generals were deliberately kept out of the decision to set up the Gitmo court and those decisions were made by political appointees. I have no doubt that the uniformed lawyers, the judge advocate generals corps officers of the several services, can and will, if left alone, set up a system that is both fair and reliable.
In the mean time it might be a good idea to let the uniform services try to put the thing together with out screaming from the roof tops that a military trial is bad, bad, bad until we know what the ground rules will be.
Disclaimer: I am an old Army JAG and think that in a lot of respects a court martial is more fair and reliable than a lot of civilian criminal trials I’ve seen and participated in.
If it’s going to use the rules of evidence and procedure from a general courts-martial, then what is the purpose of setting up a separate military tribunal system? We already have the general courts-martial system in place, so why do we need a brand new system?
This cuts both ways. With the military courts-martial, we have a well-established body of law and precedent, and so I’m fairly confident that if a guilty verdict comes out of there, it will be appropriate and it will stick. However, by setting up a brand new system with an undefined set of procedural and evidentiary rules, the likelihood of the Supreme Court bouncing back rulings from this system is ever increased.
Justice delayed is justice denied, both for the accused and for the victims.
Pip, pip. Good show, there, Man from Flat.
Witness the case of Mr. Boumadienne:
(Warning! Lefty site, with imbedded links! Tighty Righty advised to proceed Shields Up!)
Mr. B is, and was, most probably not guilty. Certainly not provably guilty. In fact, tried and released in his home country, and rendered by us elsewhere. Six years, and he is getting out today. We have also, as you likely know, released lots of other people (anybody have the exact count?). We may fairly assume that those released had even less in the way of culpability.
We have no idea the number of people we are holding who are not guilty of much of anything. We hear people blathering on about all the hardened terrorists about to be “released” from Gitmo.
If the release of Mr B is any indication, there is a very good reason to believe that there are others in similar straits.
So, if these military tribunals can bring the empty cases to light soonest and have the clearly innocent released, it is hard to see any reason why it should not be done as quickly as possible. I fear and dread that the awful truth is that few, if any, of our detainees can fairly be charged with anything, and fewer still fairly convicted.
If the military tribunal be fair and transparent, all other considerations pale.
(Afterword: I note with approval **Skinny Dehorn’s **characterization of the Bushivik perversion of due process. We should take a moment to honor those few men in the military justice system who refused to comply, perhaps we can award them the Cecilian Medal for Righteous Chutzpah.)
Hmmmm.
http://news.yahoo.com/s/ap/20090515/ap_on_go_pr_wh/us_guantanamo_trials
This could be a very shrewd maneuver. Get the Pubbies on board with semantic bait: “military tribunals” sure sounds like being tough on terror, don’t it? Swift justice, military rules, suck 'em right in. Try the ones you can try. (13 out of 245 isn’t very impressive). Release the ones you cannot charge. Note the calculated vagueness: “release” is only one of a number of possible outcomes.
So, what if our military tribunals release the vast bulk of that 245? What message would that send? That perhaps the era of an outlaw and arrogant America comes to an end? The first firm step in our rehabilitation?
One nagging question, though. Khalid Sheik M., referenced above, is cited for his confession and his heinous pride. I have no confidence, none whatsoever, is his confessions. I have heard suggestions that he is as crazy as a duck on acid, and if I had been where he’d been, I’d be totally batshit, as would any of us, I reckon.
And are we to assume that, as a torture victim, his evidence is inadmissible to be applied to other defendants?
Much as I dislike the idea of the tribunals, and I admit this is clearly not what Obama campaigned on … I still blame GWB. The dilemma of what to do with these detainees is simply not solvable. There isn’t a right answer anymore. The only “right” answer would be to not put ourselves in this position again, (and I do expect Obama to hold up that much). So now that GWB has left Obama with a choice between Bad and Worse, he went with Bad. Not ideal, but not going to make me vote against him next time.
Come to think of it, I don’t think I ever even gave credence to campaign claims that he knew what to do about the detainees anyway. I recognized that promise as impossible the moment he made it, so it doesn’t hurt so bad now that it is broken.
Also, as with many other areas where Obama has continued a Bush policy … at least I can sleep well knowing that the policy was decided on after an adult with a moral compass gave it some thought. At least our country isn’t just cruising along on some ignorant faux-redneck’s gut instinct.
You provide absolutely no explanation as to why it’s not solvable, nor do you even attempt to address the alternatives. Color me unconvinced. I don’t see any reason why I should accept a flat assertion that military tribunals are the best option. Bring an argument when you come back.
I assumed that everyone sees it as a bad situation any way you resolve it. Tribunals turn me off for the lax evidence rules, curious detainment circumstances, fundamental inequality, etc. Civilian trials can’t work now (arguably never could have) due to the way things have been handled thus far. Deportation isn’t really feasible. Release isn’t feasible.
Personally, in my fantasy world… I’d choose some combination of civilian trials, US prisons and/or release (gasp!), but I realize what a loony that makes me, and why that is unrealistic. In the real world, where people’s lives (and more importantly votes!) are at risk, I haven’t any idea what the Best choice is. I only meant to offer my feelings re: the many issues about which Pres. Obama is more or less walking side-by-side with Pres. Bush, in spite of campaign rhetoric. I guess this could be read as a thread about that, or it could be just another “how shall we handle POWs” thread.
Military courts-martial have already been mentioned several times in this thread, and you don’t even mention it in your response. There’s no particular reason that civilian trials couldn’t work, except people just keep flatly asserting that they can’t work.
If there isn’t evidence to hold someone, then they should be deported or released. If they are too dangerous to be released, we also have methods of dealing with that in the civilian court system as well - which we do for child molesters. We could come up with a way to deal with terrorists who are to dangerous to be released in either the military courts-martial or civilian system. I don’t find any of these arguments remotely compelling.
We’ve been discussing in this thread other options, but you completely ignored them.
Obama voted for the Detainee Treatment Act which withheld the writ of habeas corpus and created the CRST courts. The SC ruled in Hamdan these courts were lacking (major) due process.
In response, Congress created the MCA courts in 2006. Obama voted against the MCA. The MCA was supposed to have procedures modeling the Uniformed Code of Military Justice.
The military is a world class organization and it’s military courts are no exception. If the tribunals would model those, there would be no problems. (see Spavined Gelding’s post which has more credibility)
Generally, the detainees in a martial court would be tried according to the customary laws of war. The problems with the MCA courts are: (1) can be tried for violating some codified crimes (not generally accepted within the laws of war), and (2) allow “coerced” statements as evidence, (3) the actual act of fighting against us is a crime (ie, murder).
Let’s assume there is no “torture”. Even if the interrogators derived the statements using techniques in the Army Field Manual, that would definitely be a “coerced” statement. It would not be allowed in a civilian court.
These reasons are likely why they might keep trying them in MCA courts.
So, are you saying that the reason not to use the military courts-martial is so that the government can continue to use coerced statements as evidence?
I don’t know what the Governments reason’s are. Those are just some of the differences between the two courts.
I think they are likely reasons, though.
OK, so they may admit such statements as evidence. Are they obliged to regard them as *substantive *evidence?
My response was not crafted as a complete address of every idea in the thread.
As for civilian trials, I have again assumed (i know i know) that the way the former admin handled the capture and detainment of these people thus far would assure that normal courts would throw most/all of the cases out. That’s why people assert they can’t work. Tainted everything. BUT… IMH-terr’st-sympathizing-O, these people deserve that much by now. It’s what I’d want if I’d been stuck in a hole for 7 years.
Total agreement on both points.
I only dismiss Deportment/Release for the political factors. “Obama let the terrorists free to kill my baby!” Pretty dumb, but somehow still persuasive where it counts.
I think this is the first time I have broken up a GD quote to reply to. Clearly I am in too deep.:o
The jury/judge would weigh it to determine that.
Okay, but at that point, it doesn’t make sense for either you or Spavined to say to us that if the military would model itself after the courts-martial, it’d be okay. If the government is going to allow the use of coerced confessions, then we’re no longer operating on the model for courts-martial. On the other hand, if we are going to model after the courts-martial, then why not just use the courts-martial itself?
Unless there’s already a provision in courts martial for the use of coerced information that I’m unaware of (it’s been awhile since I looked at it).
A courts-martial (ie, military court) is modeled after the UCMJ. The tribunals are modeled after Congress passed the MCA. Both are run by the military. I’m not sure if that’s what you’re asking, but just because it’s military =/ court’s martial.
The Supreme Court has said to model after the UCMJ to ensure enough due process because the MCA is lacking (differences I mentioned above). I would have to do a lil work to see where it all stands today. I don’t think Bouemediane effected due process, but not sure.
re: coerced statements. They can be coerced, but not obtained from torture. Those statements would not be allowed in.
No, that’s not what I’m asking. I’m trying to determine what is the benefit of using the MCA tribunals as opposed to a UCMJ courts martial. If we’re going to apply UCMJ standards of due process and evidentiary rules to the MCA, then there is no need for the MCA. OTOH, if we’re going to use the MCA tribunals to do stuff that’s not allowed under UCMJ courts martial, then you can’t point to courts-martial and ask us to accept that the MCA tribunals will be just as good as a UCMJ courts martial.