I’m not a lawyer. So take this for what it’s worth.
First, it is disgusting that we’ve had to fool around for over a decade to set up and put into operation military tribunals to try the perpetrators of the 9/11 attacks.
Terrorists seized overseas fall, to my thinking, under the spies and saboteurs heading with regard to the Law of War. International law long held that such loathsome creatures were liable to summary courts and execution.
Althouse has a post today briefly discussing the NYT’s coverage and the political efforts of Obama to rebrand these tribunals as fair and decent, unlike the first commissions of the Bush administration, which were awful and cruel. Actually, while the Bush commissions were struck down by the Supreme Court, it was solely because those courts weren’t authorized by Congress, which, let’s face it, the Constitution is fairly clear on. Congress has both the explicit power to authorized subordinate courts, and has the power of regulation of the military. So Congress eventually in 2009 authorized the current military tribunals.
The NYT piece mentions BG Mark S. Martins, the lead prosecutor for the case. I saw him on C-SPAN earlier in the week discussing the tribunals, and how they worked. I was pretty impressed by him. What I didn’t know was that he went to Harvard Law School while Barack Obama was there. Small world.
I have some serious issues with the delay it has taken just to get started with the commissions. But a commenter Althouse kind of misses the point:
This is and example of the crap we do to assuage our own consciences and give us the ability to tell ourselves that we are compassionate and fair.
So don’t connect this tinkering (or compare its meaning) to our raid of a compound to kill a guy, or our firing missiles at nameless people from a drone over Yemen.
Nor to the bombs we drop on enclaves regardless of whether Taliban kids are there.
Remember – we are compassionate and fair.
(And we think we are fooling the average guy in the Islamic street that we are so very good and descent.)
Well, to some extent, maybe we do argue about this stuff to tell ourselves we are compassionate and fair. But that’s a good thing. The US is a nation of laws. And separating the functions of law, even military law, from the heat of battle is a part of that tradition.
Nations and people do things in battle that are just and legal, but which in civil society would be illegal and immoral. Is that a surprise to anyone?
And the point isn’t to fool the average guy in the Islamic street. The point is to ensure that we don’t allow ourselves to indulge in our worst impulses and forget that we are indeed a nation of laws, and in fact are compassionate and decent.