Are civilian criminal trials required for the underware bomber, KSM, and the like?

[conservdem]

Treating them as enemy combatants and giving them military tribunals, with minimally required procedural requirements should be sufficient or would that be unlawful?

[niyad]

1. you have a problem with our criminal justice system? you know, the whole "nation of laws" meme?

[conservdem]

2. It's not perfect, but it's probably the best out there.

However, if it's not required for enemy combatants, then I would not let them have it.

[Truth2Tell]

58. How do you know who's an enemy combatant without a trial?

Fucking stupid.

On edit: More FYI...

Aside from that gaping logical hole large enough to drive a Humvee through, there are other arguments against this as well.

We don't use the system of justice we do in America because we have to. It's not like, damn, we HAVE to do this because it says so in the Constitution. The fact is fair trials and equal justice are a part of the Constitution in the first place because they stand on their own merits. They are a legacy of Western progressive enlightenment, such as it is, and they serve purposes far beyond the "rights" of the accused. Both the victims of terrorist crimes, and society as a whole, have a profound interest - yes, a RIGHT - to know the full truth about such crimes, and to have some confidence that the right people are being brought to justice.

Why would anyone not want that? Conducting trials to determine the truth of events, and the actual guilt or innocence of the accused - in the most effective and fair way possible - benefits ALL OF US. Doing so in no way prevents the guilty from being punished once we know who they are. We already have one of the best systems in the world for doing this. Why build a deliberately less-effective separate kangaroo system on the side? Unless accurate and just outcomes are not what you want?

The Founders, Declaration of Independence, etc all spoke of UNIVERSAL rights, due to all humans, not just the special ones within our borders. Ya know, HUMAN rights? If fair trials are necessary to the administration of fair justice for Americans, why would the same not follow for everyone else? Again, why would anyone not want that when it benefits us all?

[conservdem]

60. What precludes that from being the intial qestion addressed by the

tribunal?

[Truth2Tell]

61. The lack of a set of rules

adequate to determining truth precludes it. That's what all those rules here in the US are for, no hearsay, etc... - to accurately determine the truth for the benefit of us all. Those rules have all grown out of necessity - the results of a long-running process of legal advancement designed to maximize the accuracy and justness of outcomes. Again, why not use it? :shrug:

[conservdem]

67. With some of my replies I have stated reasons for not using it.

FDR avoided it for some enemy combatants. I think it can be used again.

See replies 32 and 64.

[Truth2Tell]

76. "FDR did it" is not a reason. It's just a cheap

logical fallacy.

And your post 32 contains no reasons for not using our system either.

Your post 64 does give us some hints as to why you apparently have issues with the American legal system. You say that you...

"...would hope there would be greater likelihood of a conviction with a tribunal, that it would cost less, occur more quickly, and less of a chance the terrorists turn the event into a show to promote his views."

This is all very revealing.

That you would advocate for whatever process you think provides a "greater likelihood of a conviction," rather than a system that provides a higher likelihood of an ACCURATE and JUST outcome, says it all. Such a position would only make sense if you were starting with the presumption that these people are all guilty. But of course you can't know that without a fair trial. I think with that one argument you've exposed the real thinking behind most advocates of these or any other kangaroo courts.

[conservdem]

80. Tribunals are within the US legal system, thanks to

FDR and the 1942 Supreme Court ruling Ex Parte Quirin.

A judge can determine if there is sufficient evidence for a case to go to trial or a tribunal without a fair trial. It's done everyday. You must know that.

Most "accurate and just outcome" is not the constitutional measure for regular criminal proceedings. You must know that too.

[Truth2Tell]

84. Sure, "accurate and just" is just a common sense

and civilized standard, not an American law.

Of course our system doesn't always live up to "accurate and just." I see FDRs actions regarding tribunals in the same light I see his internment of Japanese Americans - as a shameful episode during which America failed to live up to civilized standards of justice and human rights. But "accurate and just" is still the standard I personally believe in - apparently unlike you.

[Ardent15]

3. you're gonna be real popular here with that username....

[conservdem]

6. Yeah, I know I am not popular, but I am not hiding my inclinations.

[spanone]

4. let's get the truth in the open....these thugs belong to no military

every wingnut i see against civilian trial of these goons totally ignores the fact that many terrorists have already been tried here and convicted, and imprisoned....and we're still alive

[conservdem]

13. Just because others have been tried in civilian criminal trials

to me does not mean that these types of trials always required.

I do not think trying them in civilian criminal trial will bring about the end of the world or the end our our nation. Likewise giving them military tribunals will not mean the end of the world.

[rgbecker]

50. I suppose we could go by the constitution...Article III, section 2

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

These "Military Tribunal"s, not used since WWII, were set up for battlefield crimes. Not for crimes in this country. The idea was replaced by the Code of military justice. Bush and Cheney/Addington dreamed up the concept of Illegal combatants etc. and basically ran over our founding fathers and the constitution. That we are even discussing this shows what those bastards have done with the discourse in this country. The constitution covers everybody in the country, not just voters, natural citizens, white people or any other subclass of people you can dream up.

[conservdem]

54. It seems that the concept of "unlawful combatant" or "ememy combatnat" predates Bush/Cheney.

"In the 1942 Supreme Court of the United States ruling Ex Parte Quirin, the Court uses the terms with their historical meanings to distinguish between unlawful combatants and lawful combatants:

'Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.'"

From Wikapedia.

[conservdem]

73. The Germans giving rise to the first Supreme Court case

on the subject were not captured on a battlefield. They were taken into custody in the US, some in NY.


Perhaps the acts at issue in these matter are beyond crimes, terrorism seems to be in another league.

[ThomWV]

5. By "the like" do you mean people like Yoo and Addington? Real terrorists.

Lower level operatives who do the dirty work?

[conservdem]

8. At the very least, I would like to see them referred to the

bar associations to which they are members. Start there anyway. I know the Justice Department is letting them off the hook, but I still think the matter can be referred to the applicable state bar associations.

[Goldstein1984]

7. I'm getting tired of this "enemy combatant" nonsense

It's a category created by Bush/Cheney to get around treating these people as either alleged criminals or prisoners of war. It's been repeated so many times that we're starting to believe the Bush/Cheney.

Either we're at war, and these people are prisoners of war and must be treated according to the Geneva Convention; or

These people are criminals, and they are entitled to due process.

"Enemy combatants" is how we take people, including U.S. citizens if it suits our purpose, and deny them the rights that we as a nation pretend we cherish.

[spanone]

9. it's also a way of dealing with terrorists so we hear NONE of the testimony

it's all about the suppression of torture testimony imo

[conservdem]

14. I would not want them to be held in secret

I think we should be able to hear there testimony. I would think military tribunals would not preclude such openness, but I am not an expert in military justice.

[conservdem]

11. I do not know that the catagory of "enemy combatant" is nonsense.

I have not read all the case law on the subject, but Ex parte Quirin, 317 U.S. 1 (1942), seems to provide some reasonable support for this designation.

If you have a cite that shows why it's not valid, I would seriously check it out.

[Goldstein1984]

20. I do. It's probably in one of the numerous folders I've created

on International Law, Human Rights, and Torture since the Bush Administration went war criminal on us.

I'm not an attorney, but a big part of my job is interpreting and enforcing regulations, so I've gotten pretty comfortable reading preambles to legislation. I also spent ten years as a government regulator, and I sat across the table from the Oil Industry listening to half-witted folding, spindling and mutilating of environmental, health and safety laws.

What I'm saying is, as I've read the various analysis of how the U.S. is conducting itself, the analysis coming from U.S. interests have that folding, spindling and mutilating quality about them. A perfect example is the Congressional analysis of events in Honduras as compared to the International analysis of those same events. The U.S. interpretation was a worthless document, but it looked very official, while the International document was well-reasoned and cited actual law.

I'll see what I can find.

[conservdem]

26. Thanks. And I apprciate the work you did to keep

help keep big oil in compliance.

I know what you mean about documents purporting to be legitimate analysis but are actually phony and worthless. Actually they are more than worthless because of their misleading nature. The torture memos come to mind as examples.

[Goldstein1984]

29. This is an interesting subject

My own files are badly organized (hastily collected, converted to pdfs, and filed away), so I did some quick Googling.

My first find was a document like those you describe, from the Council on Foreign Relations, attempting to create the illusion of objectivity while starting with a premise they had no intention of challenging. A quick look around the site shows other topics like "Obamanomics" that call into question the integrity of the site.

This will make an interesting read. I did post a few factoids that I found in another post on this thread.

[treestar]

22. Agreed, what problem did the jerks have with the POW category?

[MilesColtrane]

24. The Geneva Convention

You can't waterboard a prisoner of war.

[Goldstein1984]

38. Yes, but prisoners of war are "legal combatants"

The other category of "enemy combatants" is "nonlegal combatants."

I'm still trying to understand this mess, but my gut tells me that Bush/Cheney are war criminals guilty of crimes against humanity. That is the history that I intend for my grandchildren to learn.

It would be easier for me if President Obama did a better job of distancing himself from Bush/Cheney. It's because he hasn't, and because I think he is a good man who would if he could, that I believe our elected officials have only limited control of our government.

[Goldstein1984]

28. Since I hastily wrote my post...

I started trying to sort through my poorly organized document collection, and gave up pending some needed organizing.

But I did a quick Google, and I found that the "enemy combatant" category has been around for awhile, although it appears to have been applied mainly to spies and traitors in the past.

"Enemy combatants" are divided into two subgroups: "lawful combatants," the typical uniformed forced who, when taken prisoner, are the traditional "prisoners of war" and are entitled to the protections of the Geneva Convention; and "unlawful combatants," who can be tried by military tribunals.

I guess my confusion is that we seem to have gone from a pre-9/11 practice of treating terrorists as criminals (e.g. The first WTC Bombers; the Oklahoma City Bombers; the Unabomber) to a practice of treating them like unlawful combatants. We're told we're at war, but we treat the enemy--all of them--as unlawful combatants.

To me, the whole process has the stink of trying to get around a system of laws, which I find disturbing in a nation that claims to be a nation of laws.

This is an interesting topic that has probably already been covered on DU.

[Posteritatis]

37. It conferred rules upon the captor, and you know how Republicans are about responsibilities. (nt)

[jwirr]

33. Thank you. Back to the rule of law.

[PacerLJ35]

83. The proper term is "unlawful combatant"

Although the GC states rather broadly that an unlawful combatant does not qualify for POW status, and may be tried according to host nation legal proceedings (ie, whatever the local laws are, that's what governs the individual, versus the GC covering that person).

[Goldstein1984]

88. Yes, I found that two-part breakdown of "enemy combatant"

I still believe that Bush/Cheney pushed beyond the intent of the law/treaty/convention, and that the only principle at work was American exceptionalism.

I have a son deploying to southern Iraq in late February, and out practices have made him less safe.

[PacerLJ35]

89. Hope he stays safe...things are a lot better there now than 3 years ago

I've been to Iraq 4 times...spent a year in Baghdad. He should be fine...it's not quite the "wild west" atmosphere that it was in 2004-2007.

[Goldstein1984]

90. Thanks! I'll pass that along to his mother.

I have a good friend, a Naval intelligence officer, who just returned from an 18-month tour at Camp Liberty.

I asked him what he really thought, and he just said the people in Iraq were cutting each other's throats for a thousand years before we got there, and they'll be cutting each other's throats for a thousand years after we leave, which is why we'll never leave. He was told that he'd be returning for another deployment, and he resigned his commission. I guess Desert Storm and one tour under Iraqi Freedom were enough.

Again, thanks.

[sharesunited]

10. We are being reassured that KSM is guilty, will be found guilty, and will likely be executed.

That makes his a show trial. I don't think that's good for the reputation of our justice system.

[EFerrari]

12. Sufficient unless you are interested in getting a conviction.

Civilian trials have done much better at that.

[NNN0LHI]

15. Lumping KSM and the underwear bomber together is your mistake

The underwear bomber was according to reports caught in the act. We pretty much know he is the guy who did it.

Now KSM is another matter. The Bush administration has admitted to torturing the fuck out of him so he would likely admit to anything. He pretty much did after Bush's thugs got done with him. And if that isn't enough Bush had his two young children taken into custody too.

If some thugs of Bush were holding your kids wouldn't you say whatever those thugs wanted you to say to try and protect your kids? I would.

We tried this torture stuff before once in the US. It was called the Salem Witch Trials. You were probably taught about it in grammar school. I was. Those people who were dunked under water pretty much all admitted to being Witches. How many of them do you think were really Witches?

In recent history we had a Chicago Police Commander by the name of Jon Burge who was torturing suspects into admitting to capital crimes that these men knew they would be sent to death row for if they signed a confession. After checking we discovered that 13 out of 25 men on the Illinois death row were factually innocent. Not innocent because of technicalities mind you. Factually fucking innocent. Think about that for a minute.

No, I want the actual people who are responsible for 9/11 brought to justice. Not some schmuck who was tortured into admitting being a Witch.

How about you?

Don

[conservdem]

18. I agee with a lot of what you wrote.

The underwear bomber was according to reports caught in the act. We pretty much know he is the guy who did it.

Lumping KSM and the underwear bomber together is your mistake. PLEASE FOR GIVE THE CAPS. NOT YELLING JUST TRYING TO DISTINGUISH MY RESPONSES. IF LUMPING THEM TOGETHER IS MY ONLY MISTAKE, I'M HAVING A GOOD DAY. I TAKE IT YOU'RE OK WITH TRYING THE UB WITH A MILITARY TRIBUNAL.

Now KSM is another matter. The Bush administration has admitted to torturing the fuck out of him so he would likely admit to anything. AGREED. He pretty much did after Bush's thugs got done with him. And if that isn't enough Bush had his two young children taken into custody too.

If some thugs of Bush were holding your kids wouldn't you say whatever those thugs wanted you to say to try and protect your kids? I would. AGREED, I WOULD DO THE SAME.

We tried this torture stuff before once in the US. It was called the Salem Witch Trials. You were probably taught about it in grammar school. I was. Those people who were dunked under water pretty much all admitted to being Witches. How many of them do you think were really Witches? NONE.

In recent history we had a Chicago Police Commander by the name of Jon Burge who was torturing suspects into admitting to capital crimes that these men knew they would be sent to death row for if they signed a confession. After checking we discovered that 13 out of 25 men on the Illinois death row were factually innocent. Not innocent because of technicalities mind you. Factually fucking innocent. Think about that for a minute. I AM NOT SURPRISED BY THE CONDUCT OF THE OFFICER OR THE FALSE ADMISSIONS.

No, I want the actual people who are responsible for 9/11 brought to justice. Not some schmuck who was tortured into admitting being a Witch.

How about you? YES. BUT I AM STILL WILLING TO LET A MILITARY TRIBUNAL, SUBJECT TO APPELLATE REVIEW, TRY KSM. I WOULD LET THE TRIBUNAL DETERMINE WHAT IF ANY EVIDENCE IS ADMISSIBLE OR NOT ADMISSIBLE BECAUSE OF TORTURE.

AGAIN PLEASE FORGIVE THE cap letters.

[MadHound]

16. Let's see, we just got done trying one terrorist in civilian court, and that went well

We've done the same with other such terrorists, and have seen justice served.

If we start treating people as enemy combatants, then we have lost part of this country's soul. Our justice system is part of what makes this country great. It has always been those other countries, those despotic countries, that have resorted to kangaroo courts, not us. If this happens then we as a country are not any better than petty despots like Pol Pot or Idi Amin.

Besides, this is nothing more than a slippery slope to where all US citizens can have their right to jury trial forfeited. After all, you, me, any person in this country can be declared an enemy combatant. If we continue down this road then our country will become nothing more than a democracy in name only, and our great tradition of equality will disappear. Just think, peace protesters declared enemy combatants and tried in kangaroo courts for bullshit charges.

Can you say the road to fascism?

[conservdem]

23. If that is the best reason against it, I remain unconcincied.

Are there any better reasons out there? I would really like to see them. I admit there could easily be a good reason I have not seen that is partly why I wrote the OP.

Slipper slope? Okay it's has some weight, but not much to me in this instance. I could see applying this to non US citizens. That could reduce the chance of it being applied to regular peace protester.

[MadHound]

35. Then try this one on for size

UNCONSTITUTIONAL!

Who have we declared war against that we can treat civilians like prisoners and worse? Show me the goddamn declaration of war that allows this.

And despite this administration's continued use of the concept, "enemy combatant" is nothing more than a catch all term that the Bush administration cooked up in order to maltreat and railroad anybody, you, me or KSM. It's constitutionality has not be tested in court, and frankly it's in serious doubt.

While you this being applied to non-US citizens, the fact of the matter is that it CAN be applied to anybody, whether they're US citizens or not. Obama has upheld this principle since he has come into office, so if the administration deems you, me or your next door neighbor an enemy combatant, we're screwed, our rights stripped away, thrown into the maw of a nightmare, unconstitutional legal system. This can happen for any reason or no reason at all, that is the slippery slope aspect, one that will only grow worse as time and precedent takes hold. Will you honestly condone a PETA supporter being deemed an enemy combatant because they *gasp* set fire to a fur store after hours, or some other such protest?

My question for you is why do you have so little regard for our legal system? Let's take a look at a couple of recent terrorist attacks that have gone through our legal system. Scott Roeder was just convicted of first degree murder and is looking at a life sentence. Is that not ruthless enough for you? Then let's look at Timothy McVae. He was tried, convicted and killed by the state. Is that good enough for you.

You start trying to "streamline" or go around our legal system, then what you are doing is attacking our country, attacking our Constitution. And that, in and of itself is a terrorist act, one that means the terrorists have won, they have fundamentally changed this country for the worse.

[conservdem]

39. It does not seem to be unconstutional.

Has Obama upheld this principle? I though he had not, but I hope you are correct on this.

See my reply 11, 32, and 13.

I would not support this for a PETA member you describe.

I think this principle was first utilized by the FDR admin, and I do not think FDR was attacking our Constitution by doing so.

[MadHound]

46. Wow, I certainly hope that you're not a lawyer,

For your knowledge of basic legal and Constitutional principles are sorely lacking. Let's examine your last contention, that beyond a reasonable doubt is not in the Constitution. Excuse me, while it isn't in the Constitution, there has been a ton of legal precedent set in this matter. Furthermore, a courtmartial is a different form of justice, one that doesn't involve a basic right, namely trial by jury.

Let us look at the history of enemy combatant status. Yes, FDR did use that status, however it was used against German nationals, a country that we were officially at war with. The underwear bomber and others are from countries that we're not at war with. Furthermore, despite FDR's use of EC status, it was considered one of the US's much less than stellar moments (ranking right up there with internment of the Japanese) and hadn't been used since. For good reason, not only is there a Constitutional question concerning such a status, but also the whole matter of separation of powers comes into play. Even Scalia expressed severe reservations concerning the use of EC in Hamdi vs. Rumsfeld.

And while you may not support such an action against a member of PETA, under this status, it can easily happen, not only to PETA members, but to anyone. Again, that whole slippery slope thing. Today it is the underwear bomber, tomorrow a member of PETA, the day after, a peace protester. Sorry, but this way lies madness.

So what is your specific objections to using normal American judicial procedures to try these people? Why do you want to run them through a kangaroo court instead of upholding American justice? What are you so afraid of?

[conservdem]

66. Thanks for confirming that my "last contention" about reasonable doubt was correct.

I did not think EC should apply to Hamdi.

A workable standard for applying EC designation probably should be limited to situations were we declared war, but rather if they effectively declared war on us. This type of standard makes more sense to me.

As you probably know Germans were also put in interment camps.

Back to slippery slop? This argument can be raised in many situations and here I think it warrants keeping an eye on application of EC, but not precluding its use. I think you would agree that even under Bush no PETA or peace protesters were designated as EC.

My reasons for preferring tribunal are set out in several replies.

[rgbecker]

51. Its about the Constitution. Trial required with Jury for crimes.

No excuses unless you're going to blow away the founding fathers and the constitution. No slippery slopes involved.

The reason you are even thinking otherwise is because of Bush, Cheney and Addington. They set up a system to take people from out of the country and detain them forever without recourse and now have people thinking it is a possiblity for people here in America. The constitution is for everyone, not just citizens, white people or whatever.

I suggest you read a bit about how Bush and Cheney dreamed all this enemy combatant, illegal combatant stuff up. These guys destroyed everything I served to defend when they just threw out the Geneva Convention's treaties and everything the Army instructed us to defend.

If it is too much trouble to have a public trial before you throw someone in jail forever I say FUCK YOU.

[alcibiades_mystery]

75. If a non US citizen commits a crime in the United States, he or she is tried in a US court of law

Your whole concept is absurdist and, quite frankly, fascist.

Criminals in criminal court, period.

[conservdem]

82. Take a look at

Ex parte Quirin, 317 U.S. 1 (1942), is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

The tribunal of the Germans in that case was set in motion by FDR.

I do not find the idea fascist.

Also keep in mind this is for matters involving terrorism, not bank robbery or SEC violations.

[alcibiades_mystery]

86. I don't give

a good goddamn about ex parte whatever. You get an actual declaration of war from the Congress, maybe we'll talk. Until then, it is a power grab by the executive branch (and thus inherently fascist) to decide on what manner of lawbreaking will be tried in criminal court and which will not.

Save your second year law student bullshit for somebody who's impressed by citation.

[Coyote_Bandit]

17. I have to ask

why you think one standard of justice should apply to some - while another standard applies to others.

Under the foundational documents in this nation the universal standard of criminal culpability is that of being found guilty beyond a reasonable doubt. And, yes, there are procedures and established non-military courts capable of addressing criminal matters while simultaneously protecting matters of national security.

The "enemy combatant" meme is deeply flawed. Why? Simply because there has been no legal declaration of war. Legally, we are not at war, therefore, we do not recognize enemies or combatants.

IMHO, criminal trials are required. Anything less smacks of the inequities of the Inquisition. But then I guess that is to be expected. As a nation, we are clearly regressing back into the Dark Ages.

[conservdem]

32. I do not know that enemy combatant requires a formal declaration of

war. And I do not think it should if such a requirement would preclude military tribunals for foreign terrorists.

If the trail meets minimal requirements, that to me would suffice and not run the risk of a return to the Dark Ages. I would expect, but I admit, I do not know, that the same standard of proof (beyond a reasonable doubt) would be applicable in a military tribunal. I note though you will not find this standard in our Constitution so I wonder, what are the "foundational documents" to which you refer?

Does the idea of court martial of our military members constitute a different standard of justice?

[CJCRANE]

41. If they can be tried, convicted and sentenced appropriately in a civilian court

then where is the problem?

[conservdem]

42. If they can be tried, convicted, and sentenced appropriagely in a

military tribunal, then where is the problem with that? Which would be more efficient (time and money)? Which will allow our tax dollars to go to better causes? Why not have both as the option?

[CJCRANE]

45. What is the history and reputation of military tribunals? I don't know much about them.

I personally would go for the proven option that has been used successfully many times to try and convict terrorists.

edit: added "know"

[Coyote_Bandit]

43. Go to law school

There are often significant differences between military courts and criminal courts.

I've got no problem with trials and exceedingly harsh punishments for those who prepetrate or conspire to perpetrate violence. But I've got a big problem with sending them to jail without the full opportunity to confront the evidence and witnesses against them.

If you've got the evidence to throw 'em in jail and throw the key away then you ought to be willing and able to present the evidence and make it subject to full examination. If you aren't then I have to suspect that your evidence is faulty and an injustice is being perpetrated.

I give no credibility to any criminal legal proceeding where the defendant isn't accorded full opportunity to confront evidence and witnesses as well as access to competent legal counsel. Anything less is a masquerade of justice.

Of course, I also refuse to be afraid just because somebody else thinks I should be. We have become a nation of cowards. Apparently, we lack the courage to actually prove our case against many of these so-called "enemy combatents."

[conservdem]

48. You really think cowardice is the driver for desigations of

enemy combatants?

BTW I hope going to law school is not a requirement for posting on matters of this nature. Would that be rather undemocratic?

[Warren Stupidity]

72. pretty much yes

that and the fact that a non-kangaroo court would likely have to consider issues of torture and other gross violations of human rights. The kangaroo courts would be carefully constructed to avoid such messy unpleasantry.

[Coyote_Bandit]

85. Ummmm......

Cowardice is generally understood as a lack of courage in facing danger, difficulty or opposition. By definition, denying so-called enemy combatants access to competent counsel and the right to challenge witnesses and evidence against them is an indication of cowardice. It takes some courage to make a case that will withstand such examination. It takes some courage to be willing to recognize that not everything and everyone can be made safe. Danger is an inherent part of daily life. Get over it. A recalled Toyota just might be a greater threat to you than one of these "enemy combatants."

Your commentary indicates that you are lacking in legal training and education. If that were not true you would recognize that there often are significant differences between military and criminal courts. Just because you can say something doesn't mean I have to give it any credence - or even entertain it. I censor speech everyday. If you are going to make an argument regarding legal practices and procedures it behooves you to have the technical legal knowledge to support your argument. You don't.

[CJCRANE]

19. "The best revenge...

Not becoming like your enemy is the best revenge".

Marcus Aurelius

[treestar]

21. Of course. If the U.S. has jurisdiction

which it would with the underwear bomber.

KSM perhaps should never have been brought to the U.S., or treated as a prisoner of war.

[conservdem]

44. I agree that KSM probably should not have been brought here.

[Garbo 2004]

57. What about Ramzi Yousef? Do you have a problem with his federal trial & conviction? nt

[conservdem]

59. No. Do you have a problem with the tribunal

conviction of the eight German accused of planning sabotage in the United States as part of Operation Pastorius, which lead to the 1942 Supreme Court ruling Ex Parte Quirin?

[Garbo 2004]

87. As a justification for setting up an extrajudicial system subject to the whim of a President,

yes, I do have a problem with it. (And just as points of fact, SCOTUS ruled while the tribunal was ongoing, the defendants were convicted after the ruling, and evidently two of the defendants were American citizens.)

As you've been already told, that decision is legally controversial. The SCOTUS, in a hastily arranged special session, issued a statement of their decision within a day after hearing 9 hours of oral arguments and then spent three months cobbling together a written opinion (the actual legal justification) for its decision. Yes, that's correct: the SCOTUS made its decision before it had determined and agreed upon the legal basis for such a decision. Considering that 6 of the defendants had been executed over two months before the court released its written opinion, it's no great surprise that the SCOTUS, despite some concerns within the court regarding issues the case raised, rendered a legal justification supporting what was already a fait accompli. The SCOTUS acted as little more than a rubber stamp to the Executive and the military and then put together an opinion to justify itself.

Furthermore, FDR issued the proclamation directing a military prosecution in this case not because the case was nonjurisdictional to the Federal judicial system (the case was indeed jurisdictional to the civilian court system) but due to expediency and a desire to ensure a specific outcome. Others who were arrested and charged with aiding the saboteurs, however, were tried in the civilian court system.

Additionally, some of the legal circumstances that existed when FDR issued his proclamation and Quirin was decided have been superceded by subsequent changes in Federal criminal law and other court decisions.

Subsequent Administrations' practice (until that of George W. Bush) was to prosecute terror suspects under Federal civilian criminal law. (Even the Reagan administration prosecuted terror suspects in civilian court.) GW's administration as we know sought extralegal, extrajudicial and in fact illegal means of doing what it wanted in a variety of areas. It cited the questionable authority of the "unitary executive" (aka, "if the President does it, it's legal") as a basis for its actions. In this instance it also proffered the dubious Quirin as its legal authority. Although the Bush Administration also wound up trying terror cases in the Federal court system.

You cite Quirin. Another FDR action upheld by the SCOTUS (Korematsu v. United States) was Executive Order 9066 which was used as the legal basis for the rounding up and internment of Japanese Americans (as well as to a significantly lesser extent, some German Americans and Italian Americans). That executive order was not rescinded until 1976 by Gerald Ford. The constitutionality of FDR's order also has not yet been explicitly overturned by a subsequent SCOTUS ruling. Would you now support a similar action by a President since a previous SCOTUS ruling said it was OK?

[timeforpeace]

25. It is odd to see the same people who support bombing these guys in Pakistan saying they need a US

lawyer and a criminal trial. There's a serious credibility and logic disconnect here.

[conservdem]

27. I do not follow what you mean.

[timeforpeace]

62. Specifically what is not clear?

[conservdem]

69. The point of your reply.

[CJCRANE]

30. "They hate us for our freedoms".

So is the answer to become more like them?

[HysteryDiagnosis]

31. Enron held a birthday party for shrub... people died in California

from a manufactured electrical shortage... what law exactly are you referring to? In many instances, depending on who you are or how far your family has infested the government....there simply isn't any law.

[sufrommich]

34. It's underwear. nt

[Posteritatis]

36. Seeing as there's no such thing as "enemy combatants" I'd say no, that wouldn't be sufficient. (nt)

[Codeine]

40. I propose military tribunals for people who misspell "underwear." nt

[inna]

47. no kidding.

unrecommended.

[Tierra_y_Libertad]

49. Seeing as how they're criminals it seems appropriate.

Whereas, making them "enemy combatants" is, at best, a sidestep around the law.

[conservdem]

70. Terrorism by a non-citizen seems to me to be well beyond ordinary criminal

conduct. It seems that this distinction can allow for designations of EC, detentions, and tribunal.

[Hippo_Tron]

52. They were captured in the United States by law enforcement

I don't like the precedent that when somebody is captured on American soil they can be hauled off to a military tribunal. If they are captured by the military on the battlefield then they are essentially POWs and that's a different much more complicated issue.

[nadinbrzezinski]

53. lemme see all who have been tried

in the civilian system are serving life terms in jail.

Those facing the military commissions... oh wait NOT one conviction.

See that was easy.

By the way what is your issue with the legal system?

[rgbecker]

55. Read up a little on Military Tribunals please.

Wikipedia is your friend.

The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to the common law, which governs criminal justice in the United States, and provides for trial by jury, the presumption of innocence, forbids secret evidence, and provides for public proceedings. Critics of the Civil War military tribunals charged that they had become a political weapon, for which the accused had no legal recourse to the regularly constituted courts, and no recourse whatsoever except through an appeal to the President. The U. S. Supreme Court agreed, and unanimously ruled that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional, with its decision in Ex Parte Milligan, 71 U.S. 2 (1866).

Military commissions were also used in the Philippines in the aftermath of the Spanish-American War; as these were used in an active war zone as an expedient of war, they did not fall afoul of Milligan.<1>

President Franklin D. Roosevelt ordered military tribunals for eight German prisoners accused of planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin. All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released and deported to the American Zone of occupied Germany.

Most recently, as discussed below, the administration of George W. Bush has sought to use military tribunals to try "unlawful enemy combatants", mostly individuals captured abroad and held at a prison camp at a military base at Guantánamo Bay, Cuba.

Much more at http://en.wikipedia.org/wiki/Military_tribunal

[conservdem]

56. Ex Parte Milligan delt with

citizens, not the likes of the underwear bomber. So I am inclined to agree with that ruling as I would not want to see tribunal for citizens. But it would not preclude a tribunal for the UB or KSM.

[rgbecker]

63. Maybe so, but these 9/11 crimes were committed in NY, Wash dc....

and as such, if you were to read the constitution even close to as written, it seems courts are available in the area of the crime and ready to receive the evidence.

I'd like to hear why, other than that the guys were tortured, you wouldn't want to bring the crooks before a court of law, as would be expected of any criminal. My assumption has always been that Bush and Cheney didn't have a case and were afraid they would be freed, like hundreds of those who were detained at Gitmo already have been. Maybe you have some other reason, or inside knowledge about these guys that I'm not aware of. Maybe a national security secret? Could they actually be aliens from space and the government doesn't want to start a riot!

[conservdem]

64. I have no inside knowledge.

I do have a concern about a civilian criminal trial judge ruling that the lack of a speedy trial or some other procedural matter prevents the trial of KSM and some others.

PA could be a location of his tribunal because one of the planes went down there.

I have not researched all aspects of this. That's why my OP is a question.

I would hope there would be greater likelihood of a conviction with a tribunal, that it would cost less, occur more quickly, and less of a chance the terrorists turn the event into a show to promote his views.

[rgbecker]

68. I hope that when they come to get me, the justice I get isn't dependent on

the cost or the speed. I would also hope the public is invited to see justice is fairly applied and that the outcome is based on the facts rather than in what court is hearing the charges. Personally, I always thought the idea of a jury rather than just judges was one of the neatest parts of the Constitution. But then, I got that from my socialist, public education.

[Truth2Tell]

77. "I would hope there would be greater likelihood of a conviction..."

There it is. The real crux of the matter. Your hope is not for the most just or accurate outcome, but the outcome which YOU have ALREADY determined is right - conviction.

This is the rationale behind every kangaroo court. Make conclusions first, then gloss them over with a show of process.

[conservdem]

81. See reply 80. nt

[The Velveteen Ocelot]

65. I don't understand why conservatives have so little faith in the legal system

or the Constitution itself.

I got into the same argument with somebody just yesterday. I asked why he thought it was OK to pick and choose which parts of the Constitution could be ignored just because of who a particular defendant might be. He didn't have an answer. If the Constitution can be disregarded whenever we feel like it, what point is there in having one?

[Goldstein1984]

78. They don't have any faith in it because

they've had so little trouble undermining it.

Like a jealous partner, they project their own infidelity onto others--"I cheat, therefor, they will cheat."

Which, in the legal system, equates to, "The system never brings me to justice, so it won't bring them to justice either."

[Warren Stupidity]

71. every person is guaranteed a trail by a jury of his peers in an open court

with full access to the charges, evidence, and witnesses against him, representation by council, etc. This is why our ancestors fought a war of rebellion against the imperial rule of George III and a Parliament that denied the colonies these and other basic human rights.

What part of that do you not understand?

[alcibiades_mystery]

74. Criminal trials are essential

Military tribunals are a joke. Criminals should be tried in criminal court.

[rug]

79. No they're not. We'll just send them to the coordinates of the next drone strike.