Not theorical at all. Plenty of people have been arrested in the US following the 9/11 attack. Presumably, there several non-american citizens. There’s one, at least :Zacarias Moussaoui, who’s a french citizen (the FBI suspect he was supposed to be the 20th hijhacker, IIUC)
I’d like to see a cite for that, please.
So change the rule. Don’t let the accused know the identity of the jury and their families. Less extreme than a military court.
So change the law, again. Why let the military take care of this?
Was justice in fact done? Ever heard of Vyshinsky? He was Stalin’s favourite prosecutor. He was the man in charge of the show trials of the 1930s. He made a famous toast just prior to the trials beginning, asking the judges on the tribunal to toast to the quick deaths of the German prisoners. The judge’s toasted this, to the later regret of the fairer judges. If I had been the defence counsel, I would have asked for all of these judges to be dismissed on the basis of bias and that they had already formed an opinion on the guilt of the accused.
There were other issues, aside from this: the type of law used was a Anglo-American hybrid, and the defence counsel (Germans, from a civil law jurisdiction) were entirely unused to this. It was victor’s justice.
I certainly cannot say that these people did not deserve to pay for their crimes. But certainly the Nuremberg War Crimes Tribunals were not sparkling examples of fairness to the accused. If more fair procedures had been adopted, then there could be less doubt of the guilt of the accused.
People who complain about the safeguards inherent in criminal trials forget that the safeguards are there to protect the innocent. Even with these safeguards, too many people are wrongly convicted.
Frankly, any justice we choose to give them, as in Nuremburg, is simply a matter of convienience. We are not obligated to bend over backwards for evil montrousities. Many of you seem to say that its simply a show for the US. This may wel be partly correct, but the fact that we’re bothering to give any rights at all is as good as we’re willing to go, and we are neither morally nor legally required to grant them any more.
DrDeth said:
Yes, I’d like a cite for this, too. If you’re speaking here of Nuremberg, they were extra-legal, so they don’t count. AFAIK, SCOTUS didn’t rule on them. If you’re speaking of EO 9066, that was decided by SCOTUS, but is irrelevant here. (For those interested, a blub about the Nuremberg Trials setup: http://www.courttv.com/casefiles/nuremberg/law.html )
I guess I’ll clarify:
Public trial: You’ve mentioned this.
To be confronted with the witnesses against him: You’ve admitted the tribunals violate this.
To have the assistance of counsel for his defense: It is my understanding that the accused get what lawyer they get, and that there’s not recource if the said lawyer doesn’t represent the person’s cause well.
Enemy aliens are enemy aliens. If you’re a citizen of a foreign power, you have allegience to that power. I hope you’re not resting your case on the infamous Affidavits of Loyalty. Understanding the whole mindset behind both the design of the AofLs and the reasons people might be “No nos” is pretty key to that whole issue. Actually, you know what? I’d like a cite that German and Italian nations in the US were ever asked to sign the AofL. I’m not aware that ever happened. I could be wrong, though.
Can you tell me why you’d be more worried about terrorists coming after you than a major gang? And really, since when have we ever said that jurors being afraid of retribution is a reason to deny fundamental rights to the accused?
And you’re forgetting that these tribunals are being held under the pretense of US law.
smiling bandit, I’d like a cite for your assertion that US resident aliens are not entitled to Constitutional protections, if you please.
Necros & Dave, Dudes- you read the article you quoted- thus you are undoubtedly aware of the 1942 case in which German Saboteurs (captured in America) were tried by a Military Tribunal. Their defense atty tried to get the results throw out by appealing to the US Supreme Court based on the fact that the Military Tribunals did not follow the Bill of Rights- etc. The “Supremes” upheld the lower court- thus deceiding that Military Tribunals were, indeed Constitutional. But you knew that, right?
Let me give you a quote from the LA Times, 11-14-01, from Erwin Chemerinsky, a Constitutional Law ProF at USC- who does not like the tribunals “Based upon a Supreme Court Precedent from WWII, there is a strong arguement that this is Constitutional”. Again, this is from one of the top Constitutional Law experts in the uSA- and one who very much thinks the Tribunals are wrong & a mistake (but still Constitutional, however).
Nor have I “admitted” that the Tribunals violate the right to be “confronted with the witnesses against them”- they will get that right, AFAIK, just no list in advance, no chance to assasinate the witness pre-trial. And as you “admitted”, they DO have the “right to counsel”- just that one will be appointed for them- which happens every single day in regular US Courts.
Next, Dave, you say so blithely “change the Law” when I mention some things that can & will go horribly wrong with noraml US Court rules. Come on, dude- you must know there ain’t no such “Law”, they are mostly procedures based on two Centuries of “Common Law”- and can only be “changed” speedily by a Constitutional admendment. And- that just plain ain’t goin’ to happen. Thus, there are very good, real world reasons for not trying foriegn terrorists using the full spectrum of US court procedures. Unless, of course, you can really tell me that the “average dude” that is wanted on a Jury can be or should be expected to risk his & his families life.
And Necros- like I said about being afraid of this risk- a “gang” will, indeed try to do a “drive by” on you- but terrorist can & will simply crash a freaken jet into the hotel you are staying, killing not only YOU, but the half-dozen US Marshals guarding you- not to mention another few hundred innocent bystanders… oh, and yes- the suicide bombers themself. I really don’t remember even the Mafia having any suicide bombers on their payroll. You know- the accused do have rights- but so do the witnesses & jurors, unless you think only the accused have “rights”.
I cannot emphasise enough how much I disagree with this statement. “Evil monstrosities” might be devoid of fair play. The Western justice system is not and should not be so. It is what separates us from “evil monstrosities”.
DrDeth:
I have absolutely no knowledge of US constitutional law, sorry. I do doubt that it would take a constitutional amendment to change certain aspects of the US criminal law system, given it only takes an executive order to set up a parallel criminal law system.
This is probably the best argument I’ve seen in favour of a military tribunal. Militray personnel know that when they enter the services their lives go on the line for their country, and they could be targetted for convicting a terrorist. But the military juryman is just as likely to have his family attacked as a payback for a conviction as a civilian juryman. And Necros’s point is unassailable:
Terrorism is a war crime. Not only are we not compelled to try war criminals in a civil courtroom, it is folly to do so. We are under no legal or moral obligation to treat those who have discarded the agreements on acceptable wartime actions under the auspices of the constitution. Setting up possibly hundreds of civil courtrooms for the inevitable lengthy media circuses they would become is nothing more than handing the enemy a stick to beat you with.
First and foremost in importance is to remove the immeadiate threat that more innocent lives could be lost. And I don’t buy all this “slippery slope” nonsense either. Lincoln locked up somewhere between 12,000 and 30,000 fellow Americans (estimates vary) without even a hearing when he suspended the writ of habeous corpus and it didn’t plunge the country into autocracy.
It’s interesting to see those interested in splitting legal hairs and crying about the moral high ground when it’s not their lives at stake.
I disagree. We may not be under any legal obligation to dispense fair justice to “war criminals”, but we are quite clearly under a moral obligation to do so. The United States is supposed to stand for equality and justice, dammit. It’s not justice if you get to pick and choose who gets it.
No act whatsoever, no matter how horrific, brutal, violent, or vicious, vitiates our national duty to dispense justice rationally, fairly, and calmly. Period. To do otherwise is to throw away everything this country supposedly stands for.
I cannot express how disgusted I am at the notion that justice is something that can be withheld from people because we don’t like them or something that they did. To think this to be “moral” is repugnant.
OK, just back up half a step.
The 1942 precedent, in my view (IANAL), doesn’t hold. Here’s why. The 8 men tried in 1942 were soldiers of the German military–i.e. members of the national armed forces of a nation with whom America had had a formal declaration of war. Therefore, the prospective defendants in this case were not private citizens in a legal sense. Like it or lump it, those accused of terrorism here are, in fact, private citizens. There is no difference between them and Timothy McVeigh except insofar as McVeigh was an American and those who will probably be accused right now are not.
Military tribunals were not an issue in the McVeigh case.
OK, so does their foreign citizenship make a difference in their rights as those being tried by American jurisprudence? No, here’s why–America uses extradition laws when it needs to try foreigners who have killed American citizens. When someone is extradited, they have full constiutional protection as far as I know.
Or, to use a more blunt distinction, how about the people who have been accused (I don’t know if there’s been a conviction yet) of bombing the WTC in 1993? Military tribunals, anyone? The only difference in their cases was quantity; they were demonstrably members of a terrorist organization and had killed people under the auspices of that organization.
If we are to suggest that “terrorists are war criminals,” on a par with Nazis, we run into problems. As Hamish pointed out, we don’t know yet that the accused are terrorists. In 1942, we did know enough to suspend the rights of the accused Germans, because, as I said, they were military personnel of a nation with whom America was at war. They had therefore, in a legal, diplomatic and international sense, suspended their own rights as regards America. As private citizens, the accused in 2001 have not done any such thing.
But in any case, even accepting that this fandango is constitutionally and legally valid, the fact of the matter is that it will cast the legitimacy of the proceedings into enormous doubt. In such times of crisis, with such weighty matters being tried, I think it is the duty of America’s leadership to make the trials, and the results of the trials, as legitimate as possible in the public mind. America cannot afford questionable circumstances surrounding the cases at hand.
See the link posted by Sailor above for more.
-Someone Else
I fully support the US Constitution. It’s very important to uphold it.
someone_else is entitled to think s/he knows better what the Constitution ought to say, but why should I care?
[quote} I cannot express how disgusted I am at the notion that justice is something that can be withheld from people because we don’t like them or something that they did. To think this to be “moral” is repugnant. [/quote]
Absolute rubbish. If your “moral highground” costs so much as a single additional innocent life, and I have every reason to believe it would, it isn’t “moral” at all - it’s the antithesis.
More hair splitting. These people belong to groups that we have declared war on. Try to understand that while this is a different sort of war the same concepts of wartime behavior ** across the board ** are applicable.
Nor were they in the O.J. Simpson murder trial, so what? McVeigh was an American citizen and a lone wolf, as it were.
No, the main difference is we hadn’t a clue as to the size and scope of the problem and the struggle against these people. You seem to be laboring under the impression that because we tied one hand behind our back then, we must continue to do so.
Duh. That’s what the tribunals ARE FOR.
No, America cannot afford even a single life to satisfy the vague protestations of the various weak sisters who climb out of the wood work.
The cite for the 1942 case is Ex Parte Quirin, 317 U.S. 1 (1942). It basically finds that a person who commits an act against the laws of war (as adopted by Congress) may be tried in a military tribunal set up by the President. The Court found that the Fifth and Sixth Amendments did not apply and the accused were not entitled to a grand jury finding or a jury trial. This was at issue in their plea for writ of habeas. It did not address other issues of procedure. Interestingly enough, a key element of the crime was that the accused tried to hide the fact that they were in fact combatants. It is also important that the event occurred at a time of war. The Court stated:
. On the same day, by Proclamation,3 the President declared that ‘all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, [317 U.S. 1, 23] and who during time of war enter or attempt to enter the United States … through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals’.
Which leads us back to the problem here. As far as I know, the US has not actually declared war on any nation. The President said we are at war with terrorism, but so what? Congress declares war, as it did against Germany, not the President. We also declared war on drugs, but I don’t think we’d be in favor of setting up military tribunals for drug cases. The McVeigh case is a problem because, as the Quirin case points out, citizenship is irrelevant. If you want to make a distinction between domestic and foreign terrorism, then you’ll have to explain why this does not violate equal protection principles.
This is not splitting hairs. The federal government is a government of limited powers and has to demonstrate a statutory basis for what it does. The current situation falls in between the typical war situation and the ordinary violation of state criminal statute. Even in the typical war situation, the President and Congress would have to refer to federal statutes passed in conformity with the Constitution to prosecute belligerents. It is therefore not pure sophistry to question whether the current statutes allow the President to prosecute terrorists in military tribunals.
Then the SCOTUS will undoubtedly rule on the constitutionality of the tribunals. As an aside, care to speculate how much data Atta gathered about the WTC during the first trial? How about how many intelligence sources were ruined or blown?
Tribunals aren’t some sort of slippery slope to autocratic rule, they are a historically well established solution to a very real problem of how to cope with a war on terrorism. If nothing else, 9/11 should be ample proof that the “old” way of doing things is inadequate.
Normally I regard Scalia as nothing more than a right wing shill and knee-jerk reactionary but he was right when he said “no one wants to capture bin Laden and have him tried by Judge Ito for two years.”
I don’t agree. The state can’t declare war on a private group, only on another country. We have declared Al Qaeda a terrorist organization; simply being a member of a terrorist organization is no basis for the suspension of civil rights, since that would mean being punished for a state as opposed to for an action. Armed services of another country are of demonstrably different legal status; they are not private citizens.
Don’t patronize me, Gardner. You missed the point. Using military tribunals–that is, a suspension of otherwise “inalienable” rights–does carry a presumption of wrongdoing.
It also cannot afford the life of a wrongfully convicted, innocent person, in cases of this mindboggling magnitude.
I admit that the military-secrets argument is strong. However, former JAG corps attorney Matthew Freedus says:
Bolding mine.
Which suggests to me that in civilian trials, national security interests can indeed override the Sixth Amendment right to a public trial in part, BUT NOT ALL of the trial. I think, then, that a balance can indeed be struck between protecting civil rights–for instance, in the form of the right to an appeal, which I’d like to see an argument against in this context–and protecting America’s citizens from harm.
-Someone Else
Quote:
Then the SCOTUS will undoubtedly rule on the constitutionality of the tribunals. As an aside, care to speculate how much data Atta gathered about the WTC during the first trial? How about how many intelligence sources were ruined or blown?
But that’s precisely what part of the debate is about. Just as no one wants a circus trial of bin Laden, no one wants to prosecute a bunch of suspected terrorists in a military tribunal only to find later it was unconstitutional, although presumably the first test case could get to the SCOTUS quickly on habeas. The problem I have with the tribunals in this instance is whether there is real statutory support for it while Congress has not declared war, and I’m not inclined to ignore that problem for the sake of expedience. That would fundamentally alter the relationship between the executive and the legislative branches.
The availability of potentially damaging information is ever a problem, as is revealing sources. Are you suggesting Atta had no other way of getting that info? If you’re suggesting that the accused not even have the right to know what the evidence is against him or her or who the witnesses are, then I really do have a very serious problem with the whole structure. Frankly, I’m not sure I care whether the evidence adduced at trial is made public or not; my only concern is whether (a) the accused can adequately prepare a defense, and (b) an appeals court can access the transcript to determine whether the trial was conducted properly. (Courts seal trial transcripts and judgments all the time, so I do not have a problem with that. We deal with redacted evidence every day, reviewed only by the judge, in the more mundane world of trade secrets.) Sources are blown all the time in criminal trials across the country, but the costs involved are not sufficient reason to deny particular criminals of their Fifth and Sixth Amendment rights. There are undoubtedly innumerable cost-saving and probably life-saving mechanisms that could be employed without the Fifth and Sixth Amendments.
Quote:
Tribunals aren’t some sort of slippery slope to autocratic rule, they are a historically well established solution to a very real problem of how to cope with a war on terrorism. If nothing else, 9/11 should be ample proof that the “old” way of doing things is inadequate.
Tribunals are a well-established solution to a well-established problem, which is why the Proclamation used in Quirin speaks in terms of “nation” and “war”. Again, as far as I know, Congress has not declared “war” on any “nation”. What is a slippery slope is blurring the lines between the powers of the different branches of government. I generally agree with you that the tribunals are not a slippery slope to autocratic rule, but they fortunately were not around long enough to have the opportunity to be.
Terrorism is something different, because it does not involve armies and nations in any traditional sense, and we clearly are in for a long haul. While 9/11 reveals that perhaps the “old” way of gathering intelligence is inadequate, I don’t think it is support for undoing the “old” way of deriving the power of the President from an act of Congress. I think that the current situation falls in between traditional war and ordinary criminal action, and would therefore support the idea of a tribunal where the procedures fall in between those of a regular criminal trial and a military trial; say, in which the burden of proof is beyond a reasonable doubt (especially if the death penalty is a possible punishment), evidence is subject to the federal rules except for the exclusionary rule, any offense for which capital punishment is available is proved only upon the unanimous verdict of the tribunal, and limited appeals may be had to a circuit court of appeals.
In any event, perhaps we should check with nations that have had a similar problem, like the UK, and see how they’ve dealt with it.
Quote:
Normally I regard Scalia as nothing more than a right wing shill and knee-jerk reactionary but he was right when he said “no one wants to capture bin Laden and have him tried by Judge Ito for two years.”
I agree with these sentiments, but would you support him being turned over to the War Crimes Tribunal in Holland?
Guess who I side with. I will not sacrifice freedom for safety. I am willing to risk my life so that I might live my life free. If you are not, I suggest that the United States is the wrong place for you to be living.
Where does it say that? Why not? Nations, tribes, organizations are just artificial labels we apply ourselves. This is the sort of legalistic “get 'em off on a technicality” that I take issue with.
Being a member of a terrorist orginization certainly is grounds for being treated as a war criminal as opposed to a private citizen. By definition the group has renounced internationally codefied rules on warfare and embraced war on innocents.
So does being arrested, so what? Being a member of a terrorist organization that has attacked, and plans to continue to attack, US citizens is a rock solid ground for presumption of guilt IMO.
Sorry, if we are going to err, I prefer it be with a single individual rather than another tower full of innocents.
Erofeev,
AFAIK the Tribunals are not some sort of a rubber-stamp kangaroo court after which the defendents are led out back for a KGB-style sendoff. I think the automatic presumption that a fair trial is not to be had merely because procedures are changed is wrong.
As to the legalistic arguments, I remain unimpressed. Congress itself is not pressing the issue. And I simply don’t except that we hammer the square peg of “terrorism” into the round hole of our previous “wars” with nation states.
One, I’m not talking about just Osama which leads me to two - how would that be any different than a US civil trial?
It is with amazement that I read your equation of trying terrorists in a Tribunal with the automatic decent of society into some form of autocracy. Sounds like chicken-littleism to me.
Yada, yada, yada, Sing that song to the relatives that your “morals” are going to kill.
When the “tribunal” bears about as much resemblance to justice as “Battlefield Earth” does to quality cinema, yes, that is exactly what is going on. By creating categories of people for whom justice need not apply, we have set aside our national committment to equal justice for all. We have denied who we are as Americans, and the terrorists have won.
If you want to know what sounds like “chicken-littleism” to me, it’s the ridiculous argument that trying to give these suspected terrorists a fair trial will somehow endanger us. The ridiculous notion that a fair trial cannot be held without endangering national security is just that, ridiculous. I feel far more endangered by the possibility that I will be labeled a “terrorist” and subjected to drumhead justice myself than by the possibility of some terrorist learning something from the public and fair trial of another terrorist that might later harm me.
I will not be defeated by terrorists. You already have been.