September 29, 2001

11:26 AM

Terrorists should be tried in front of military tribunals instead in civilian courts in front of juries.
posted by Steven Den Beste (19 comments total)

wow. that's a good idea!
posted by jcterminal at 11:28 AM on September 29, 2001

As Crona and Richardson note, when terrorist acts of aggression target innocent civilians, they are not "legitimate acts of war under international law, but rather must be regarded as war crimes or crimes against humanity." The 1949 Geneva Conventions prohibit attacks on civilians. And the Geneva Protocol II expressly prohibits "acts of terrorism."

Hence the International Criminal Court, the treaty to which Bush requested that Congress not ratify. And yes, I know of the constitutional objections in the US, but if an international tribunal can deal with Milosevic, it can deal with terrorists. Welcome to the big world. And heh, by playing the war card (in my opinion prematurely) the Bush administration has placed a fair few constitutional protections up for grabs.

Our criminal justice system, which requires a unanimous finding of guilt beyond a reasonable doubt by twelve jurors, Crona and Richardson note, "is designed to err on the side of letting the guilty go free rather than convicting the innocent. However, when this nation is faced with terrorist attacks that inflict mass murder or hundreds of millions of dollars of damage in a single instance, we can no longer afford procedures that err so heavily on the side of freeing the guilty. Protection of society and the lives of thousands of potential victims becomes paramount."

Although the case of the Lockerbie "bombers" suggests that such "protection" is usually subjugated beneath the desire for a conviction at all costs.

It's rather disturbing the extent to which many in the US political hierarchy regard the WTC/DC attacks as an opportunity for land-grabs from the citizenry. Again, one can't help but think of the Reichstag.
posted by holgate at 11:44 AM on September 29, 2001

What holgate said.
Plus there is no reason why military experts, etc. cannot be called as witnesses.
Despite what John Dean(is he the same...oh forget it)says, there is something fishy and inbred about military tribunals. Not to mention underhand, legally inferior and - no offense, it's just an epidermic reaction - ever so slightly fascistoid.
There is even a case to be made against the very existence of military tribunals, as it does conflict with the basic presumed equanimity of "justice for all".
My considered opinion is based on quite a lot of court martial scenes in bad movies, so please do not jest, as I can´t handle the truth...
posted by MiguelCardoso at 12:03 PM on September 29, 2001

Military law is to law as military music is to music..nuff said.
posted by tetsuo at 12:27 PM on September 29, 2001

if you try them in a military court, you officially recognize them as soldiers. and if they're soldiers instead of cold-blooded thugs, their boss is not a hoodlum anymore. he's a statesman, an enemy, OK, but a statesman nonetheless.
do you guys want to grant Bin Laden (and more important, to his followers) such a honor?
posted by matteo at 12:44 PM on September 29, 2001

Justice for terrorists = bullets to the head, neck and chest.
posted by owillis at 12:47 PM on September 29, 2001

This is a difficult subject - the use of military tribunals instead of civilian courts to try people convicted of terroristic acts. John Dean has shown in his article that he isn't capable of making this argument.

Perhaps a military tribunal may be appropriate when we are attributing the actions of an individual to the state that ordered him or her to carry out those acts. An executive order authorizing military tribunals in the absence of a declaration of war from Congress would be unconstitutional regardless of any negative inferences that John Dean has made from the ramblings of William Rhenquist. Regardless of what Rhenquist has said about the suspension of civil rights during wartime, his points were still about actions during "wartime."

An article also from the findlaw site acts as a counterpoint to John Dean's. It discusses Why The Acts May Or May Not Constitute War, Crimes, And War Crimes, And Why Definitions Matter .

One of the biggest difficulties in treating some the actors involvement as crime are problems with extraterritoriality in taking action against those who conspired with the terrorists.

An international criminal court, holgate?

The International Court of Justice at The Hague handles only cases between States, not individuals.

That's one of the difficulties of using it as a jurisdiction to handle a problem like this one.
posted by bragadocchio at 1:28 PM on September 29, 2001

Did you read the link, bragadocchio? The ICC is intended to be quite a different beast from the ICJ, intended to handle cases between individuals, not states.
posted by holgate at 1:50 PM on September 29, 2001

No, holgate, I misread the link. Thanks for bringing that to my attention. :-)

Now that I've looked again (much more carefully), it does look like it fills some serious gaps in the prosecution of individuals for criminal acts. I'm going to have to delve into the constitutional arguments against the formation of an International Criminal Court to try to understand why this wasn't ratified, unless you want to give us a sense of those here. It seems an appropriate continuation of the topic this thread raises.
posted by bragadocchio at 2:18 PM on September 29, 2001

It isn't surprising, though, that there isn't a set, agreed upon process for trying these criminals. I mean, it's a relatively new thing for small groups to be able to attack large nations so effectively.

Also, an ICC would face a difficult problem. The aggrieved country will inevitably demand its own satisfaction. I wonder how most Americans (and our elected representatives) would react to the notion of bin Laden et al. being sentenced to life in prison (the rest of the world being notably anti-capital punishment) outside some city in Europe most of us have probably never heard of before.

This seems like one issue were doomed to resolve poorly, assuming bin Laden isn't killed in a military action.
posted by mattpfeff at 2:39 PM on September 29, 2001

The aggrieved country will inevitably demand its own satisfaction. I wonder how most Americans (and our elected representatives) would react to the notion of bin Laden et al. being sentenced to life in prison (the rest of the world being notably anti-capital punishment) outside some city in Europe most of us have probably never heard of before.

mattpfeff is right: look at the Lockerbie fiasco. Though I still think it is quite strange that everybody overlooks the fact that the actual murderers have already died. So we're talking about accessories or instigators. Can you legally execute them? I think not.

The real war is against future, potential terrorists. That's what makes it so dicey and (humour me)jurisprudentially uncertain.

Another doubt: perhaps "sinking to their level", as owillis seems to suggest, is the appropriate response. Since the terrorists clearly despise our namby-pamby system.

But I think not. Keep'em alive and let the other prisoners show them what they think of them.

????

The truth is we don't know yet.
posted by MiguelCardoso at 2:49 PM on September 29, 2001

This was not an individual attack. It was a coordinated effort by a group that was targeted at a country, the United States. The military tribunal should apply. Oklahoma City was a different matter. It was not done by a group outside of the U.S. IMHO, I would rather have the Delta Force handle the situation quickly and quietly.
posted by NJguy at 4:14 PM on September 29, 2001

At the heart of this thread is a question as to whether terrorists should be tried in military tribunals or in civilian courts in front of juries. It's my opinion that unless war is declared by congress, the executive branch is violating the constitution by using a military tribunal. But, while it is possible to conduct criminal trials against people who undertake terrorist acts within the territory of the United States, applying our laws to actions taken outside of the United States might require some other mechanism. The International Criminal Court, perhaps?

It is easy to find commentary about the International Criminal Court and the United States' failure to ratify the treaty behind the Court. It's an issue that finds concepts of national sovereignty pitted against human rights. A realistic amount of time to define the appropriate issues involved could be years with access to relevant information. Here are some commentators who have had some time to study these issues. While they have some knowledge of the issues, they bring very different ideologies and conclusions with their commentary:

Court (ICC):A Response to U.S. A Pragmatic and Philosophical Justification for the
International Criminal Court (ICC): A Response to U.S. Objections

The International Criminal Court vs. The American People

The Politics Behind the U.S. Opposition to the International Criminal Court

I understand the need for international law in situations like the one we face now, but I wonder if a treaty signed by the president, and ratified by the congress involving a court that did not guarantee american citizens the same rights that are granted to them under the constitution would be unconstitutional, and void. As much as the constitution grants us rights, it also protects us from our government. The constitution is a pact between the people of the United States, and the government. It tells the government how we will allow them to govern us.
posted by bragadocchio at 8:37 PM on September 29, 2001

Brag, Congress has already passed what amounts to a declaration of war. It happened about three days after the attack. While it wasn't formally labeled as such, legally it has the same force.

As to the issue of treaties versus the Constitution, treaties have the force of law. But laws cannot override constitutional rights and when they come into conflict, laws (including treaties) give way. Were that not the case, the treaty power would be a back door the government could use to remove our rights.
posted by Steven Den Beste at 9:31 PM on September 29, 2001

Steven. You're right. Treaties have historically been granted the same power as federal statutes in our country. Which means that while they might be able to preempt state laws, they are still required to pass constitutional muster when challenged in court. I don't see the treaty on International Criminal Court being able to do that the way that it is presently configured.

But when I look at the war issue, I'm concerned that declaring war on "terrorism" is a backdoor towards letting the government remove our rights also. An actual declaration of war conveys upon the Executive extraordinary powers. It's not something that congress does lightly. Amongst those powers is the ability to suspend civil rights. What "amounts to a declaration of war" isn't enough to do that.
posted by bragadocchio at 10:13 PM on September 29, 2001

Brag, the point is that what was passed is legally the same as a declaration of war even if it wasn't labeled that way. That precedent was settled with the Gulf of Tonkin resolution, which was about the same as what was just passed. It, too, was not formally labeled a "declaration of war" but the courts judged to be one.

Which means that what Congress actually did pass is indeed enough to give the President the powers of war. I agree that it is not something that Congress does lightly; the last time it happened was 1980 (which also wasn't formally a "declaration of war"). But it is necessary sometimes, and I believe this is one of those times.
posted by Steven Den Beste at 5:10 AM on September 30, 2001

That's just the problem, Steven: your "what amounts tos" and "about the sames" and "effectively giving the powers of war" don't really translate into a sense of confidence outside the US, especially when the most important precedent is Vietnam. (And given the controversy over the Gulf of Tonkin incident.) I know that you couldn't give a rat's ass about international opinion right now, but the precedent for that kind of rat's-ass unilateralism was Vietnam as well. If the fight against terrorism is to be sustainable, as more than a generic name for a very circumscribed set of US objectives, it's going to have to be within a framework that isn't perceived as being driven by one country's agenda.
posted by holgate at 8:06 AM on September 30, 2001

When I first heard of the bombings in Kabul the night of the 11th, I wondered if we had crossed that line, if we had started into what could only become a war with Afganistan. That action, that night, if originating with American forces would probably have lead to a declaration of war with the state of Afganistan. Congress may have had little choice at that point. But it might have also be the begining of a war involving many other nations, too.

What's at stake is something more serious than one nation against another in a war, and definitely more difficult to obtain - attempting to sustain peace. Declaring that the President would have the backing to resolve this crisis is very different from declaring war. The label does matter.
posted by bragadocchio at 9:51 AM on September 30, 2001