Frankly, you seem somewhat hysterical to me. I am merely unwilling to risk innocent lives in order to maintain some form of politically correct arraignment procedure. US civil rights are not going to collapse because we treat terrorists as the war criminals that they are.
To those that oppose this on the grounds that it is depriving people of fundamental rights:
Do you oppose the bombing in Afghanistan (and war in general)? If not, then what is different about dropping bombs on people without having a civilian trial, and executing them without a civilian trial? I’m not entirely comfortable with this executive order, but the basis on which it is being opposed leads, in my mind, to conclusions which are manifestly ridiculous. Does anyone have a solution for this conundrum? Is there a principle which can be used to condemn executions without civilian trials which cannot be used to condemn carpet bombing? Or is it simply a matter of “common sense” that the former is not allowed, while the latter is?
Well, actually as erofeev pointed out- the whole point of the trial was the fact that the german saboteurs were NOT acting as “soldiers of the german military”, ie they were not in uniform, etc. Thus if foriegn organizations send their agents here to act as terrorists- then the cases are very similar, as is agreed by at least one Constitutional Scholar.
I am completely in favor of trying those we capture in Afganistan in Tribunals. Those in America I am not so sure about- but I think one point is worth considering- if they came here illegally with the sole purpose of attacking the US- then the difference between them & the Nazi saboteurs is moot.
And, dave- far from “necros’s point being unassailable”- I had already pointed out the major hole in it. Gang members shoot you. Terrorists fly jets into buildings- much harder to defend against, and kills many others who were not even jurors or witnesses.
Kelly & others- you keep saying by not allowing these dudes “justice” we are being “un-american”. But they ARE getting justice, just another AMERICAN form of it- just like our soldiers get when they are court-martialed. There are rules for evidence, defense attorneys, appeals, cross examination, and the suspect is considered “innocent until proven guilty”. The US military has been using this system for 200+ years- and so far it is generally considered a “fair trial”. “Justice” is NOT being “witheld” from them.
This is, unfortunately, false. Bush’s “tribunals” are most emphatically not courts-martial as envisioned by the Uniform Code of Military Justice. The UMCJ has many provisions to protect the right of the accused to a fair trial. Bush’s tribunal order preserves almost none of these (public trial, right to counsel of choice, right to appeal, unaniminity to impose death sentence). There is simply no comparison. See http://www.nytimes.com/2001/12/02/national/02TRIB.html for more on the dissimilarity between UMCJ courts-martial and the Bush tribunals. To be quite frank, the Bush administration, by all appearances, is deliberately trying to confuse the public into thinking these tribunals are merely slightly modified versions of UMCJ courts-martial. They are not.
I simply see no reason not to hold trials under existing mechanisms for anyone captured, whether that be civilian criminal trial, military tribunal under the UMCJ (where appropriate), or trial by the standing International War Crimes Tribunal. We don’t need to create kangaroo courts to dispense a mockery of justice when the mechanisms for dispensing fair justice already exist. Dispensing with our existing mechanisms for fair justice, especially for highly specious reasons, undermines the only moral justification we have for fighting this “war” in the first place.
DrDeth
Oh come on. You are more likely to get eaten by a shark than killed by being in a building which is hit by an aircraft commandeered by terrorists. Terrorists do not usually run planes into buildings. They use explosives and guns.
I find someplace else’s argument compelling:
The same argument applies to bin Laden: he is not a sovereign country, and it would be a mistake to treat him and his organisation as such. A terrorist organisation cannot “declare war”: only a sovereign nation can. And so, members of al-Qaeda cannot be tried in a military court.
At the end of the day, what we have here are those who think that the US should take whatever steps are necessary to preserve the safety of US citizens, pitted against those who think that the ends do not justify the means.
Americans have every right to be proud of their country as one in which its government is based on principles of rights and liberties.
Any attempt by the executive to abridge those rights and liberties is not something Americans should be proud of.
At best this is an artificial constraint, at worst the sort of legalistic silliness that could lead to further deaths. I am still waiting for someone to produce a genuine legal citation that says we connot declare war against those who have plainly declared it against us.
I don’t believe treating war criminals like, well, war criminals is something we need to hang our head in shame over. Military personal are not granted access to civil courts and I find the suggestion that this means they automatically receive unfair judgements or that foreign terrorists deserve different treatment to be absolutely ludicrous.
Why? They’re not our war criminals. We have no need of shame for the war criminals of another country. Instead, our duty with respect to them is to be stern, but fair.
Once again, I feel compelled to point out that the Bush tribunals are not comparable to UCMJ courts-martial. It is really quite an insult to the authors of the UCMJ to claim that they are. You also ignore the fact that the decisions of UCMJ courts-martial are appealable, eventually, to a civilian court, and that military personnel are not denied access to the civil courts.
B. Gardner,
It is simply not legalistic silliness to insist that the federal government (1) have a statutory basis for what it does, and (2) follow the rules it has itself laid down. I have yet to see where the proper basis is for setting up the tribunals, and where the basis is for the executive to declare war.
While I generally agree that Americans do not construct kangaroo courts, I do not have the same faith you do in the fairness of the tribunals. Indeed, I would hazard a guess that a number of legal technicalities that you may have a problem with in our existing criminal system arise out of SCOTUS cases where the Court was fed up with obvious abuses of the criminal system, primarily in the South. The Court did not trust the state criminal courts to get it right. I’m no fan of legislating by 9 people, but the Court was obviously concerned about fairness, so, no, I don’t trust a system for which there is no apparent review.
The tribunal system proposed is the same as saying “Trust us, the bastard was guilty and deserved his fate. No need to review the evidence, or even peek into how we arrived at the result we did, just take out word for it – we got it right.” Even the Germans in Quirin could resort to habeas, and I would posit that the Second World War presented a much graver danger to us than Al Qaeda. The jurisprudence arising out of the Fifth and Sixth Amendments are in most cases a response to a perceived abuse in the fairness of criminal trials, so clearly some thought needs to go into how the rules of procedure and evidence are to be adjusted.
I’m not sure I agree with the point that lives will be spared by a curtailed procedure. On that theory alone, we should eliminate the exclusionary rule, the grand jury, and the Fifth Amendment right against self-incrimination for any murder case. If you have chance to spend some time with some of the Nuremberg cases, like the guards trial or the cases arising out of the Malmedy massacre, you may well find some processes that are a bit disturbing, most notably the way in which confessions were at times obtained.
In any event, I think it will be interesting to watch the developments here in Texas, where a charity organization was raided by the feds recently because it allegedly has ties to Hamas. This case will probably expose the benefits and pitfalls of making inroads into civil liberties.
With respect to the War Crimes Tribunal, my point is that the US is a party to the treaty that set up the Tribunal. So as we have insisted on trying other war criminals there, like Slobodan Milosevic, why wouldn’t we try Osama there? For one, he didn’t just kill Americans at the WTC. For another, he has committed acts of terrorism in other countries, notably Kenya. If we’re serious about trying war criminals in a forum that is designed for that purpose, then Osama should end up in The Hague. The number of actors involved shouldn’t really make a difference, should it? If the response is that, well, terrorism is a different animal, the people involved are not analogous to conscripted soldiers merely following orders, then that brings us back to the point before, which is that the laws of war are and are not of precedential value.
The other point is that, the idea of having an international tribunal try Osama will, I would guess, elicit a response in the US to the effect of “Hell no, try him here, the acts were committed here, and most importantly, we wanna fry the bastard.” That is precisely the reaction we should guard against, if we want to avoid the hypocrisy in the OP. We trumpet our system of laws around the world; we need to be prepared to live by them. The point is rather easily demonstrated by the following contra example: if you found some evidence that Henry Kissinger committed war crimes, would you turn him over to the Tribunal in The Hague? Most people I talk to here think it’s a ridiculous proposition. But that, indeed, is hypocritical – it reveals a desire that the system be set up for us, not for anyone else. That’s why I think there is value to the system of ensuring, even with terrorists, that there are checks against abuses.
For some reason this thread dropped off my radar screen. Apologies.
DrDeth said:
Um…so what? We’re talking about killing jurors, not killing other random people. Stay on track, please. I am flabbergaster that you think it would be easier for a terrorist to kill you than a gang member. I’d really like you come right out and say it: Do you honestly believe that it is easier to hijack a plane to kill someone than it is to do a drive-by?
As far as my other points, I see that Erofeev is doing a much better job of defending them than I was. Thanks. 
Not to get too involved in this, I just ahve a question.
Aren’t War Tribunals realtively new institutions? Is Nuremburg the first such instance of a tribunal?
Is the purpose of a war tribunal to truly determine guilt or innocence? I was under the impression that they were in fact really “mock” or “kangaroo” courts if you like, but not in what I would say a bad sense. Really they are just created to create a public record so that history may note what had been done. So I would think that if there ws truly a question of someone’s guilt than a military tribunal woudl not be appropirate (as might be the case for some of those arrested post 9/11 in the U.S.). But if someone is captured during times of war, engaged in a war against the U.S. they clearly have no more rights than a military tibunal.
Bush’s tribunals will be secret, hence no public record. Kinda defeats that purpose, now, doesn’t it?
I am starting to suspect the real reason for these drumhead trials is that there are Americans the Bush administration is trying to protect. Most likely, these are Americans who were involved in Afghanistan during the 1980s and early 1990s who have committed, assisted in the commission of, or funded acts which would be considered war crimes under the international Convention on War Crimes. The Bush tribunals would allow the Administration to find the people who have evidence implicating friends of the Bush administration and kill them off before they squeak.
Just what is George Bush really afraid of?
How on earth do you know this? Have you attended one?
Really? Do you have a cite from the authors to back that up?
No, but it IS legalistic silliness to continue to insist that because terrorists don’t comprise a convenient “state” that we can’t declare war on them and that therefore they must be treated as private citizens.
As to trying Osama at the Hague the legal agrument is probably the most compelling. But we’re not just talking one person here, and the dynamics are different than with Milosovic. My primary concern is that the preceedings become either a source of muslim extremist propaganda, that they become the focal point and motivation for additional acts of terrorism, and that the need to protect sources will undermine a public trial.
To some degree I admire the high mindedness of those taking the civil liberties tack. I am of a more pratical bent in this matter. I feel limiting the death of innocents takes prescedence over bending over backwards to provide access to the civil court system.
And given that we declined to extradite Osama a few years back when Somalia offered because the Clinton Administration didn’t feel there was sufficient evidence to convict in civil court, I feel my contention that additional lives will be at risk by granting access to civil courts is much better founded than the contention that Tribunals are automatically unfair and unjust.
I would not be so bothered if we were talking about fair tribunals. The problem with the Bush tribunals is not so much that they are not the civil courts, but that they are mockeries of justice. The EO authorizing the tribunals seeks to give the President the sole, unquestioned authority to declare by fiat that any particular individual the President desires is outside the scope of the rule of law as defined by the Constitution and by Congress. The President simply should not have that much unchecked authority; certainly our founding fathers never intended for the President to wield such extraordinary power of attainder. What’s to stop the President from deciding that this authority only applies to non-citizens?
My understanding is that the Supreme Court ducked the issure rather than deciding it. Their decision was the formistic statement that the internment was carried out properly in accordance with an executive order. There was never any opinion expressed by the court on the basic validity of the executive order itself.
I simply don’t know how you can make that judgement a priori.
The fact is that the President does have that much power in wartime. And as I noted before, A. Lincoln put scads of fellow Americans behind bars without trial, yet here we 140 years later with our civil liberties intact. As far as I can tell the primary complaint against Tribunals hinges on a rather far-fetched combination of slippery slope-ism and worse case scenerios of related American behavior.
We’re not living during the time of Lincoln. We’re living in the 21rst century.
He swings and misses! How utterly and completely you miss the point.
I get your point. However, I’m saying your comparison was flawed.
Oh, and it’s she, thankyouverymuch.
:mad:
Oh well, then, if you said it it MUST be true. Perhaps you’d care to go beyond mere assertion that A. Lincoln’s suspension of the writ of HC didn’t lead to tyranny is an invalid analogy to suggesting that Tribunals aren’t going to lead to autocracy either.
Actually, it took the SCOTUS to re-establish the writ of habeas corpus, in 1866. In fact, Lincoln’s suspension of the writ during the War was also deemed unconstitutional by the SCOTUS, but Lincoln chose to ignore the ruling. I’m afraid that does smack of tyranny.
Still, I don’t think that the case of Lincoln and habeas means that military tribunals for Al Qaeda terrorists are unsupportable. I just want to make sure we have adequate safeguards. The events as they unfold will reveal overreaching by our government in some instances, perhaps many, and will fully justify giving the whole process the hairy eyeball. I heard something today to the effect that a review process will likely be established, a step in the right direction.
But I seem now to be rehashing old arguments.