We’ve Elected Morons
By Mitch Berg
The Administration has decided to put a selection of “accused” terrorists on trial in civilian criminal court. In Manhattan. (We have to call them “accused” or “alleged”, now, they’re in ). Which means that all that talk about the Geneva Convention we were treated to over the past eight years was, as I pretty much suspected, buncombe.
As the descendants of Lance Ito, Marcia Clark and Johnny Cochrane race for New York to get jobs on the defense team in their attempt to make a mockery of both American justice and the last eight years’ efforts against terror, purely for political points (the only reason for this is to dig out dirt on the Bush Administration), the Administration is trying to defend the decision convince the American people that that quacking green thing with webbed feet and a bill isn’t a duck.
And on what grounds does Holder defend the decision? Some obscure legal precedent? Some unacknowledged quick in counterterror doctrine?
Er, no (emphasis added):
Attorney General Eric Holder is defending his decision to put the professed Sept. 11 mastermind on trial in New York — and urging critics of the plan not to cower in the face of terrorists.
Ah. We’re not irritated at the crass political opportunism, the huge bone being thrown to the Kossacks on the taxpayer time, or the very real risk that Khalid Sheikh Mohammed and the other 9/11 planners will be turned loose by a hung New York jury (didn’t Holder ever read Bonfire of the Vanities?).
Nope. It’s that we’re”afraid”.
I was going to wait at least until next year to decide – but the title of “worst president of my lifetime” is looking like a lock, here.
November 19th, 2009 at 9:32 pm
” . . .to the extent that we strive to treat those prisoners in our custody well, our military prisoners on the other side tend to be treated better.”
Assertion is not fact.
“It is not perfect, but the failures of others is NOT a justification for our mistreatment of prisoners regardless of how badly others behave.”
What is mistreatment? Who makes that decision? I am sure that you do not have that authority. Beware of constructions that are opinion-based. There are many, many people, probaly a majority, who would say that KSM was not “mistreated” by his CIA interrogators, that he got no worse and probably better than he deserved.
“I agree with you about the Dredd Scott decision being a travesty, but while not directly reversed by subsequent SCOTUS, it has been effectively undone piece by piece.”
It was undone by a civil war. We want to avoid those. The constitution did not save the Union, guns & bullets did.
November 20th, 2009 at 12:04 am
DG,
Please clarify – how does the “rule of law” demand a civilian trial for the terrorists?
And when I say “clarify”, I mean in terms of actual laws that bear specificallly on non-military, non-local people engaged in international terrorism across multiple national borders.
What is the legal authority that demands a civilian trial for that particular class of accused?
November 20th, 2009 at 11:42 am
Mitch wrote: “And when I say “clarify”, I mean in terms of actual laws that bear specificallly on non-military, non-local people engaged in international terrorism across multiple national borders.”
Thank you for asking.
Lets start with the claims that the terrorists should be tried under military tribunal because of the “War on Terrorism”. The so-called war, which is undeclared, doesn’t make everyone connected with it subject to military justice. The “War on Terrorism” doesn’t define a war, it’s a slogan. The “Wars” in Iraq and Afghanistan are not declared wars, they are short of that technically, as Military Engagements as authorized by Congress. We have not been involved in a declared war since WW II.
Under Article One Section Eight, only Congress is empowered to declare war, specifically the wording says: “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and waters”; in that same section is the part about define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; and some other potentially applicable bits. The key point being — we are not actually at war because Congress has not declared war.
I will take the sections of my reply in separate comments, but as you asked, it seemed approrpriate to begin with our Constitution. I will also address the definitions and the sections they are in under the Geneva Convention, and while I usually pride myself on doing my own homework, I will confess up front that my Penigma colleague Toe (Thoughts of Eternity) is a lot quicker at legal research than I am, so I’ve hit him up for the specific citations under Title Eighteen for the applicable federal statutes, although it would be a lot easier to be specific if a list of the specific charges had been made available for which the (alleged) terrorists were going to be prosecuted. ToE was just going into court when I caught him by phone this morning, but he promised to get back to me with the information later this afternoon — to provide you a time frame for that answer.
I will add here that given the problems with the status of military tribunals and their proceedings to date, both within the military – the number of JAG personnel who have vigorously objected to them for example, and the position of the Supreme Court on some aspects, I would suggest that civilian trials may actually AVOID a lot of potential legal land mines, and be more final and decisive.
I hope this will adequately answer your question, Mitch, as I would never willingly disappoint you.
November 20th, 2009 at 11:58 am
“The key point being — we are not actually at war because Congress has not declared war.”
Nothing in the Geneva convention requires a declaration of war.
November 20th, 2009 at 12:39 pm
DG,
This may be spread over two comments; I’m kinda time crunched.
For starters – what MoN said. The Geneva Convention doesn’t just cover declared wars; indeed, revisions after WWII clarified provisions for undeclared wars.
But one thing the Geneva Convention AND US law are spectacularly unclear about is the status of people like at Guantamamo; people accused of committing acts of war/terror against the US, neither on US nor their own native soil – in territory not under the jurisdiction of US law enforcement.
More in a bit.
November 20th, 2009 at 1:22 pm
Here is the citation for which laws would most likely apply, given we have not so far been provided with the actual charges (that I’m aware of, if so they would be very recent in terms of this discussion).
And yes, the Geneva Conventions DO cover undeclared wars, and are binding on any conflicts – note the word CONFLICTS as it has important legal significance – where one party is a signator – which we are. The term belligerants is also signfiicant.
GC III, Articles 4 and 5 which define legal and illegal combatants, and their required treatment, states that: Should any doubts arise as to persons having committed a beligerant act and having fallen into the hands of the enemy (in this case – us) belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
That protection should have precluded torture such as waterboarding.
Under the 4th Geneva Convention, once an individual has been determined to be an illegal combatant, their status changes to that of a civilian providing them a different set of rights.
November 20th, 2009 at 1:24 pm
Whoops – forgot to provide the civlian statutes citation – a failure of my cut and paste (thank you ToE for being so prompt!)
Title XVIII US Code, Chapter 113B deals with terrorism issues.
Section 2331 et seq is the relevant section which authorizes prosecution and defines the crimes for which they most likely will be charged.
November 20th, 2009 at 1:32 pm
Sorry you are time crunched (I have some dog grooming to do for a dog show tomorrow myself) but I’m still having that log out problem trying to end SitD sessions – perhaps this is not unique to me.
I’m getting the error message “You are trying to log out of Shot in the Dark Please try again”, which keeps bringing me back to the comment area. Retries are unsuccessful. If you could spare some time from comments to fix this – please?
November 20th, 2009 at 1:49 pm
Just delete your cookies, and you’ll be logged out.
November 20th, 2009 at 3:37 pm
Mitch wrote: “But one thing the Geneva Convention AND US law are spectacularly unclear about is the status of people like at Guantamamo; people accused of committing acts of war/terror against the US, neither on US nor their own native soil – in territory not under the jurisdiction of US law enforcement. ”
Actually Mitch, both are quite clear. These are well defined as civilians engaging in combat without respecting the laws and conventions of war, and as such, they are subject to civilian criminal prosecution. This parallels discussions I’ve had with Pen, who has some practical military education in the GC from his 12 years in the military, and of course, with ToE, as well as the research I’ve done on my own to inform my opinion.
But if your assertion about the GC and our own internal laws WAS correct – how do you then find reasonable jurisdiction for military tribunals? That would appear to be an assertion – a flawed assertion – but for purposes of argument, one that would equally prohibit military tribunals or any jurisdiction other than the world court. Are you advocating for THAT?????
Let me take this opportunity to thank you for treating that opinion with respect and courtesy instead of impugning my motives, or treating dismissively my intellect, courage, integrity or gender. It makes this a much more enjoyable and substantive discussion.
Further, given the nature of the terrorist organizations which are located out side the borders of the United States, and our reliance on the cooperation of other countries for access and intelligence to further protect ourselves, it is just foolish and stupid to disregard the international community in proceeding with trials under the most legitimate judicial system available to us. I am not for a moment suggesting that we give over to anyone else the sovereign rights to make these decisions, but rather pointing out that we would be wise to follow the most legally binding and legally transparent judicial path available to us.
Given the disgrace of Gonzales and others in their time at DoJ – I understand from the news that the investigation begun under Bush is due out in the next week or so – including the pending recommendation for dis barment of Yoo and Bybee, possibly others for their role, I don’t see an up side to military tribunals over civlian criminal proceedings. The conduct of military tribunals and of interrogations at Gitmo – most particularly the interrogations conducted by contractors of dubious qualification without any effective supervision or accountability – places a very dark cloud over any outcome credibility from such proceedings.
Given the track record for the US in prosecuting other terrorists successfully, and credibly, this is a legitimate and smart decision.
New York City is as much the US as anywhere else within our borders, and as such just as much a representative venue for justice — more so than one held outside our borders. So to the degree that you find any ambiguity, lack of clarity or confusion that I don’t find, (more importantly, that others more legally qualified than I don’t find) that should be resolved in favor of our civilian justice system.
It also is worth noting that the success rate of getting a conviction in Federal court criminal proceedings is extremely high, somewhere in the range of 90+% I believe. This is because the cases brought tend to have very solid cases and evidence, and because of the nature of the rules under which these courts operate, so the notion that there is a big chance of these guys walking out the door, free as a bird, to go enjoy the night life of Manhattan at some point is not reasonable or credible.
Those who are shrieking we are all going to be in greater danger, that we are just too darn helpless and incompetent to see to our internal security, strike me as a bunch of shrill opportunitstic little ‘chicken littles’ claiming “the sky is falling the sky is falling” without regard to anything other than the chance to exploit emotion over reason for the most selfish kind of political gain.
Thanks, MoN, for your practical suggestion to the log out problem!
November 20th, 2009 at 3:58 pm
“These are well defined as civilians engaging in combat without respecting the laws and conventions of war, and as such, they are subject to civilian criminal prosecution.”
Defined where?
November 20th, 2009 at 4:12 pm
Then since the Geneva Convention is…
1) Clear on the status of these combatants, and…
2) since terror suspects operating outside their own homelands do NOT meet the definition of “PRisoner of War”, and since…
3) A civilian trial under US criminal law will compromise intelligence and counterterror operations…
…then all captives should be given civliian status.
In Turkey. Or maybe Mongolia.
Someplace where the trials won’t turn into an opportunity for Gerry Spence and Ramsey Clark’s hellspawn cant’ turn the “trial” and the “justice” system on its head.
November 20th, 2009 at 4:16 pm
MoN,
The Third Geneva Convention gives a list of definitions of POW, and then says (via the auspices of a 1958 “international criminal court” decision) that anyone not fitting those definitions should be considered a civilian.
BUT.
Since they dont’ fit the definition of a POW, and they are mostly extranationals (i.e. Iranians captured in Chechya, Yemenis caught in Iraq), they should be either treated as spies (which, in wartime, declared or not, are allowed to be executed after a fair trial) or turned over to members of our coalition in the interest of internationalism.
November 20th, 2009 at 4:32 pm
But the Military Tribunals Act of 2006 sez
“‘‘§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.”
This is current US law.
November 20th, 2009 at 4:44 pm
Sorry,
the MCA 2006 has been replaced by the MCA 2009 which sez:
“‘‘§ 948c. Persons subject to military commissions
‘‘Any unprivileged enemy belligerent is subject to trial by
military commission under this chapter.”
and defines
unprivileged enemy belligerent as
‘‘(7) UNPRIVILEGED ENEMY BELLIGERENT.—The term
‘unprivileged enemy belligerent’ means an individual (other
than a privileged belligerent) who—
‘‘(A) has engaged in hostilities against the United
States or its coalition partners;
‘‘(B) has purposefully and materially supported hostilities
against the United States or its coalition partners;
or
‘‘(C) was a part of al Qaeda at the time of the alleged
offense under this chapter.
where a privileged belligerent is defined as
PRIVILEGED BELLIGERENT.—The term ‘privileged belligerent’
means an individual belonging to one of the eight categories
enumerated in Article 4 of the Geneva Convention
Relative to the Treatment of Prisoners of War.
This law was signed by Obama
November 21st, 2009 at 2:09 pm
MoN – Doesn’t pertain.
Three little words from the most basic civics classes taught K-12: “ex post facto”, acting retroactively.
Forbidden by the US Constitution, one of those important premises of our legal system along with forbidding bills of attainder, and guarantees of habeas corpus, and the right not to self-incriminate. It requires us to use the laws (this includes treaties and conventions so far as I can find) in place the time of the crime, not later modifications.
The soon-to-be defendants are being accused of 9/11 and related events, all prior to 2006 OR 2009.
I’m not a lawyer but I believe this would be the approximate definition of what is not allowed where the aspect that applies is 4d.:
Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”
(from “the Constitutional Dictionary”)
November 21st, 2009 at 5:08 pm
Gentlemen, in addition to addressing the legalities, which would include the recent requirement from the Supreme Court for an appeals process for military tribunals which is not yet in place, and the fact that there have been only one or two of these tribunals that resulted in convictions of any kind (one, the case of the driver for Osama bin Laden, is credibly argued would have received a LONGER not shorter sentence in civilian court for his conviction). There have in contrast been many more military tribunal cases that have been overturned in full or in part for problems.
In contrast, there have been somewhere between 200 and 300 (depending on what stats you use) successful civilian court convictions of terrorists.
Additionally, perhaps you were unaware that both the houses of Parliament in the UK have filed amicus curiae briefs arguing for the prosecution in civilian court rather than by tribunal – if you care about the opinions of our closest allies.
Gentlemen, I do not for a moment expect to change your minds; positions on this matter are strongly partisan rather than detached and purely objective. An observation I offer not with any intent whatsoever to offend, but rather that I have a realistic definition of success for this argument. I do not expect to change your minds, nor have you changed mine.
The title of this post is “We’ve Elected Morons”. I believe I have presented to you a thoughtful, well researched, well reasoned and articulate point of view in credible support of civilian trials for the 9/11 terrorists. In respect of what I have presented, I feel justified in expecting that you do not and can not consider me a moron even if you may still feel I am wrong.
The result, we agree to respectfully disagree. However – my definition for success in this — if you agree that I am neither ignorant nor stupid, in other words, not a moron, then by logical extension neither is the administration in taking the position they have. Yes, I know that might be a bit harder to swallow, but I think as the lone voice here against multiple adversaries, I’ve argued fairly and well….so, please, grit your teeth, smile and nod, LOL.
The greater success, a truly shared one, is the enjoyment of a lively and substantive discussion / debate focussing on fact over ideology, and most of all imho, in the exchange being pleasant rather than swapping insults.
And of course, if you wish to continue, I will do my best to oblige.
November 22nd, 2009 at 6:04 pm
MCA 2009 (or 2006) doesn’t create any new crimes that didn’t previously exist.
In Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court gave congress the authority to codify what constitutes a violation of the law of war.
From Quirin
““The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of setting out specifically certain violations of the law of war. ‘Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts….’””
“most basic civics classes taught K-12: ” Quirin probably wasn’t covered in high school civics.
November 23rd, 2009 at 11:43 am
MoN wrote:”MCA 2009 (or 2006) doesn’t create any new crimes that didn’t previously exist. ”
True – however the part of ex post facto that is applicable, as I noted is this:”4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”
Military tribunals require lesser standards of evidence.
MoN wrote:
In Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court gave congress the authority to codify what constitutes a violation of the law of war. ”
Superseded by the 1949 signing of the Geneva Conventions adopting those definitions and terms.
Mon wrote:
“In Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court gave congress the authority to codify what constitutes a violation of the law of war. ”
Presumably your civics classes did include an understanding of the Supremacy Clause in Article VI, paragraph 2, which applies to the Geneva Conventions:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
We didn’t cover Quirin in civics, but my honors history classes covered it.
November 23rd, 2009 at 3:51 pm
“I haven’t mentioned Obama; this is not a decision in his direct authority.”
DG, can we even expect a “Present” from your Obamassiah?
This great country really could use a leader at a time like this.
My Karma just ran over your Dogma