First, secret detentions. Now, secret trials...

[erik_kosberg]

http://dailynews.yahoo.com/h/ap/2001...st_trials.html

[kurt_messick]

Interestingly, several people in the military justice hierarchy have been making comments (one person was even named on ABC news, but I can't recall who it was) who said these kinds of things are easily open to challenge on constitutional grounds.

[poseidon]

Erik,

While I'll agree that the idea on its face stinks, if you look at it a bit more closely then it actually is a good idea.

What are the advantages of a military court? I'm pretty sure they don't allow just anyone in there to witness a trial (including cameras and the press). What's that mean? It means that you could try these guys without every iota being published/broadcast and giving other terrorists connected with the accused a chance to change plans, etc. It's not really a secret trial, it's just a closed trial.

It would also mean speed of trial. Instead of having these guys languish in prison for years before the trial (if you think that their attorneys won't waive the right to a speedy trial you're unrealistic), trial can be set up very quickly and get moving. The quicker you can act and the quicker you can get information, hopefully the more terrorists you could find. Appeals would take weeks or months, not years.

What wouldn't happen, according to this article, Erik, is that no one would be tried without having lawyers and no one would be tried without a jury.

[wivabef]

The use of the word "secret" as if there is some kind of evil intent behind these recent decisions is disturbing. This is war, right? All of the actions proposed still adhere to the Geneva Convention, right?

Something tells me attempting to crash four commercial planes into heavily populated and strategic facilities in a "secret" plan to destroy our open society just doesn't fit into the rules of the Geneva Convention.

[realtraveller]

Military trial does not mean unfair trial. In fact, a strong argument could be made that trying anyone involved in terrorist activity in a regular state or federal court with a jury made up of the very citizenry who had been terrorized is the most unfair venue for the defendant of all.

And where in the world could the trial be moved to remove it from the taint of pre-trial publicity?

Cases in point from the California legal press:

A Middle Eastern man accused of child molestation had to have his trial postponed for six months because during the voir dire (the questioning of the panel of prospective jurors) very few could say that they could approach the case in an unbiased fashion. Imagine if he had been charged with involvment in the WTC plot.

Even Middle Eastern doctors sued for malpractice are settling with the plaintiffs in these civil suits rather than risking taking their cases to trial.

The defendants would get a fairer trial having a bench trial before a judge only. Not that judges don't have biases too but they are trained to look objectively at the evidence.

But the main reason for these military trials is to keep the identity of the witnesses secret from the public and other terrorists for their own protection.

[erik_kosberg]

Are we all reading the same article? Evidence introduced that wouldn't be allowed in a non-military trial. Greater likelihood of death sentences. Less likelihood of appeals. I fail to see how the accused would find this to be "a fairer trial" or "for their own protection".

[realtraveller]

The quote said the military jurors MIGHT be more likely to impose the death sentence and that the appeals process MIGHT be speedier.

Was there any real doubt that McVeigh was
going to be sentenced to death? Is there any doubt that any terrorist behind the murders of 5,000 wouldn't be sentenced to death? I don't see how on this issue the outcome is changed at all.

As for appeals, these military trials already create an issue for appeal that is, whether the process itself is constitutional or not. And if speedy trial is deemed fairer, why is not speedy appeal?

[wivabef]

The article also said:

"In either a military or a civilian court, any suspect would retain rights to a lawyer and to a trial by jury"

Again -- it's war. This is not OJ trying on gloves. It held up in FDR's time in the Supreme Court -- and that was a few germans who didn't get around to any damage.

[poseidon]

Originally posted by erik_kosberg
Are we all reading the same article? Evidence introduced that wouldn't be allowed in a non-military trial. Greater likelihood of death sentences. Less likelihood of appeals. I fail to see how the accused would find this to be "a fairer trial" or "for their own protection".

Well now we get to the real meat of the problem, don't we? You're against capital punishment, I'm not. I guess that's where the issue lies in fairness? I don't buy it, sorry.

As far as fewer appeals, someone accused of a federal crime has fewer appeals than those of a state crime. Does that mean that federal trials are inherently unfair? In Wyoming, there are only two courts - county and Supreme. Are trials in Wyoming less fair than in other states?

[realtraveller]

If military trials are essentially unfair, why are they tolerated at all even for those in the military? Ah, you say, but those people volunteered to join and subject themselves to military justice. But what of draftees?

I think Jeff has hit the nail on the head. It's the death penalty thing.

[erik_kosberg]

Originally posted by wivabef
All of the actions proposed still adhere to the Geneva Convention, right?

That may be very much open to debate. The Geneva Convention relative to the Treatment of Prisoners of War seems (at least in my reading but I’m not a lawyer) to apply to soldiers or agents of a nation state, not to members of terrorist organizations.

BTW, yes I am opposed to the death penalty, but I would have no objection to having any of these suspects tried in a regular civilian federal court where the death penalty would be a factor. I just don't think that they should be tried before a military tribunal.

[realtraveller]

Erik, You state that you are opposed to terrorists being tried in a military court but you haven't stated any specific reasons why.

[CeeJay62]

Originally posted by kurt_messick
Interestingly, several people in the military justice hierarchy have been making comments (one person was even named on ABC news, but I can't recall who it was) who said these kinds of things are easily open to challenge on constitutional grounds.

I worked all day and was in the car flipping radio stations, so I can't recall which "expert" said this, but FDR did the same thing during WW2 (something about Nazis arriving in subs off the coasts of New York and Florida) and it stood up to a constitutional challenge. It should also be noted that these types of trials are only for non-citizens.
If you are a terrorist who sought to destroy this country you shouldn't be allowed all the privileges of citizenship, or the opportunity to make a mockery of our justice system. This is war and a military trial is acceptable.

[AuntieEmma[$]]

Originally posted by realtraveller
Was there any real doubt that McVeigh was
going to be sentenced to death? Is there any doubt that any terrorist behind the murders of 5,000 wouldn't be sentenced to death? I don't see how on this issue the outcome is changed at all.

Well, if there's no doubt, why even bother to have a trial? Why not just shoot McVeigh or a "terrorist behind the murders of 5,000" the minute that they're caught?

What happened to innocent until proven guilty?

[erik_kosberg]

Originally posted by realtraveller
Erik, You state that you are opposed to terrorists being tried in a military court but you haven't stated any specific reasons why.

A military court is for the trial of military personnel. Again, I’m not a lawyer, but my understanding the Geneva Convention Relative to the Treatment of Prisoners of War is that it applies to members of the military of nation states and agents of nation states. I don’t see how that applies to members of terrorist groups not acting as agents of a nation state.

Originally posted by CeeJay62
FDR did the same thing during WW2 (something about Nazis arriving in subs off the coasts of New York and Florida) and it stood up to a constitutional challenge. It should also be noted that these types of trials are only for non-citizens.

And those Nazi agents were acting under the orders of a nation state. I’ve seen zero evidence anywhere that that was the case on 9/11. I also think that the X is okay because X only applies to non-citizens argument is a false premise. Following that reasoning, torture is okay if it’s only used on non-citizens.

I have no problem with any of these suspects being tried in civilian federal courts.

[wivabef]

Originally posted by AuntieEmma


Well, if there's no doubt, why even bother to have a trial? Why not just shoot McVeigh or a "terrorist behind the murders of 5,000" the minute that they're caught?

What happened to innocent until proven guilty?

Though I am not "realtraveller", I understood term "sentencing" as post conviction. In other words, the purpose of the trial was to convict McVeigh of the crime -- under current Federal Law, the guidelines of capital punishment made the sentencing -- after proving guilt -- a technicality.

[poseidon]

And those Nazi agents were acting under the orders of a nation state. I’ve seen zero evidence anywhere that that was the case on 9/11. I also think that the X is okay because X only applies to non-citizens argument is a false premise. Following that reasoning, torture is okay if it’s only used on non-citizens.

Correct me if I'm wrong (I may very well be), but the Al Queda network (or however the Hell you spell it) was part of the Taliban regime and could thus be considered an agent of a nation-state (Afghanistan), since the Taliban -- whether the legal government or not -- was running the country.

Since the Al Queda allegedly took part of 9/11, then indeed this was a situation where this would fall exactly into play.

IMHO if a government is harboring terrorists, then they are endorsing those terrorists' actions and I have no problem considering them to be agents of that government.

Twisted logic, yes, but it makes sense to me.

[realtraveller]

Auntie Emma: I obviously meant a death sentence pronounced after McVeigh was tried and found guilty. I thought it so apparent that it was unnecessary to spell it out.

Erik: Do you still think that Al Qaida acts independently of the Taliban government of Afghanistan? The more I read the more I see that that Al Qaida is the terrorist branch of the (hopefully former) Afghan government. They do have the backing of a nation-state. If they did not, they would have been treated as criminals in Afghanistan instead of being aided and protected by them. They are much like the SS of the government of Nazi Germany.

But you still haven't answered the basic question: Which of the defendants rights do you think will be violated by trial in a military court?

[AuntieEmma[$]]

Originally posted by poseidon
Correct me if I'm wrong (I may very well be), but the Al Queda network (or however the Hell you spell it) was part of the Taliban regime and could thus be considered an agent of a nation-state (Afghanistan), since the Taliban -- whether the legal government or not -- was running the country.

I wouldn't say al-Qaeda (however you spell it) was part of the regime. Bin Laden was in Afghanistan in the pre-Taliban days, helping the anti-Soviet fighters, and then he left in 1990 and didn't come back again until 1996, when the Taliban had already taken over a lot of the country. So he wasn't a part of the original movement, although he did help them out at the end.

He doesn't have any official role within the Taliban. What seems to be going on is (1) he's friends with the Taliban's leader and his thinking has influenced the Taliban, (2) the Taliban is protecting him, and (3) he is or was giving the Taliban money, which means you could perhaps consider him a paying guest.

(if you say that giving money means being part of a regime, would that mean that Pakistan is also part of the Taliban regime?)

[AuntieEmma[$]]

Originally posted by realtraveller
Auntie Emma: I obviously meant a death sentence pronounced after McVeigh was tried and found guilty. I thought it so apparent that it was unnecessary to spell it out.

Oh, ok ok.

But that does raise another question -- if it's so certain that McVeigh (and by extension, one of the current terrorists) would, without any doubts, get the death penalty in a regular non-military trial, why not have a regular trial? If the end result would be the same, why change procedure now?

My main problem with all this stuff is that the justification is always well, we're at war now. Thing is, according to Blair, we're going to be at war for 50 years. That's a lot of time to have access to such a powerful justification.

[CeeJay62]

Originally posted by poseidon


Correct me if I'm wrong (I may very well be), but the Al Queda network (or however the Hell you spell it) was part of the Taliban regime and could thus be considered an agent of a nation-state (Afghanistan), since the Taliban -- whether the legal government or not -- was running the country.

Since the Al Queda allegedly took part of 9/11, then indeed this was a situation where this would fall exactly into play.

IMHO if a government is harboring terrorists, then they are endorsing those terrorists' actions and I have no problem considering them to be agents of that government.

Twisted logic, yes, but it makes sense to me.

Makes sense to me as well. It is just sad it took the death of thousands of people for us to stop wringing our hands and saying "oh what shall we do, terrorists live and thrive and are supported by many countries, but since those countries won't publicly claim them, alas, our hands are tied". It isn't acceptable to me that terrorists should avoid the consequences of their actions as war criminals simply because they choose to wage war covertly and as roving bands of murderous thugs. It is time to change our concept of war to fit the reality we now face.

[erik_kosberg]

Before we spin too far out of control, does anyone have a link to the full text of exactly what Bush’s order entails? Or what justification, if any, Bush or Ashcroft is using to take these cases out of the civilian federal judiciary system and turn them over to an Executive branch military tribunal? Exactly what types of appeals would be possible? Through the federal courts all the way to the Supremes or just through military channels? If by Bush’s order potentially thousands of cases might be tried by military tribunal, why haven’t the detainees been held in Prisoner of War camps? Exactly why the switch from civilian to military jurisdiction now? If those who planned to fly a plane filled with jet fuel into the WTC in 2001 must be tried by a military tribunal, why were the terrorists who planned to drive a truck full of explosives into the WTC in 1993 tried in the civilian federal court system? Are the convictions obtained in those cases somehow flawed? Exactly how germane is the comparison between these cases and the Supreme Court’s acceptance during WW2 of the military tribunal that tried German agents dropped off by a submarine acting under orders from a government whom we had declared war against? Wasn’t that the same court that said that concentration camps for Japanese-Americans were just fine and dandy?

Right now, I have many more questions than answers. Something just doesn’t smell right.