The Military Tribunals at Gitmo

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.

22 thoughts on “The Military Tribunals at Gitmo”

  1. I think most of this b/s comes from the politicians refusal to call an enemy an enemy..

  2. One cannot help, if one is to think about this situation critically, to notice the ironic and somewhat disturbing dichotomy.

    These people being arraigned at GITMO were illegal combatants captured while trying to kill US service members. By the Geneva Convention of 1949, they could be summarily executed. That much has never been disputed seriously.

    But the US Attorney General, Eric Holder, pushed strongly for them to be tried in a civilian court, with all the Constitutional rights and protections given to a US citizen accused of a capital crime. In this push, Holder told us how important it was to provide these people due process.

    However, a US Citizen, Anwar Al-Awliki, was assassinated by use of a drone strike, for suspicion of aiding and abetting terrorists against the United States. No indictment, no Grand Jury, not even so much as any formal charges against an American citizen. When asked to explain himself, Holder told us that a handful of Government officials meeting behind closed doors away from public scrutiny or judicial review is now considered “due process” for the US Government to kill one of its citizens without them so much as being formally charged with a crime.

    Apparently Article 3, Section 2 of the Constitution, and the Sixth Amendment, are obsolete. One has to wonder whether the precedent for Al-Awliki was one of killing of terrorists, or one of establishing the authority of the Federal Government to arbitrarily and capriciously kill its citizens.

    1. URR, I’ve always thought of that particular strike as a targeted engagement of a key command node of the Al Queda network, rather than in terms of deciding to assassinate a US citizen in lieu of capturing and bringing him to justice. Had the administration explained it more forcefully in those terms, it might have experienced less criticism. The explanation you cite does indeed raise questions of the respect for the Constitution.

      It is sometimes hard to escape the conclusion that even when this administration does the right thing, it does it either for the wrong reasons, or in the wrong manner.

  3. Brad,

    The assassination of Al-Waliki may have been the engagement of a key command node of AQ, as you point out.

    But it is also the assassination of an American citizen. And the denial to that citizen of Constitutional process. Which, as a precedent, is far more dangerous than anything AQ can or will do.

    To wit: If it was so urgent to kill an American citizen overseas, would it not be more urgent to kill one here? And what of the not so subtle shift in language from “Islamic extremists” to “violent extremists”? To be the former, one MUST be Muslim. To be the latter, all one has to do is belong to a group or organization that political entities inside the government declare to be “extremist”, and then, of course, “violent”. Gun owners, Tea Party activists, certain religious affiliations. The list goes on for such a subjective and legally obfuscating term.

    Again, why the dichotomy? Syrian and Yemeni AQ illegal combatants in a New York courtroom and American Al Waliki dead without so much as a formal charge?

    1. He’s hardly the first American citizen to be killed in the course of a war. Did the federal government owe each and every Confederate soldier his day in court?

      Like it or not, in this age of non-state armed groups, some number of American citizens are going to be on the side of the bad guys. And they will place themselves outside the reach of US law enforcement. It’s a tricky situation. How DO we address that, and yet not wear away at our Constitutional protections? I’m not going to be too harsh on the administration when I don’t have a better answer.

      The attempt to try foreign enemy combatants captured either on the field of battle, or by friendly foreign powers, in civilian court is folly. Many of us foresaw this issue, and saw the paradox you point out, of providing illegal enemy combatants the rights and protections of our rule of law, while simultaneously denying them to US citizens.

      And what of the not so subtle shift in language from “Islamic extremists” to “violent extremists”?

      I’d actually say the administration is on firmer ground here. How extremist does an Islamist have to be before he’s liable to being killed? At least with the term “violent” you can show that a group has either been, or not been, violent. If you’re a part of a group that has been violent in the past, you’re fair game.

      Of course… you have the keys to the blog. Feel free to write a post on this topic. I’d love to hear your thoughts.

    2. I think it’s time for a resurrection of the legal concept of outlaw. The basic idea being that by taking yourself outside the reach of the law you also remove yourself from its protections. I would like to see some form of due process beyond the President’s Star Chamber deciding you were fair game for the Reaper.

    3. Well I’m glad you didn’t, otherwise I wouldn’t have anything to contribute. It’s a useful concept for when the capability of criminals to act against the population is greater than the capability of the police to apprehend the criminals.

    4. Confederates are a very poor comparison. When the Southern States seceded, the citizens of those states ceased to be US citizens and citizens of another country. Such a situation is nothing like that with Awlaki.

      I do agree with Brad here, however. Awlaki was conspiring to kill other US citizens and needed to be taken out. If you can’t capture a criminal of that nature, you do what you need to do to prevent any further threat from him. That’s what was done with gangsters like John Dillinger, for example.

  4. Brad,

    The Civil War analogy doesn’t hold water, I am afraid. The South was in a declared state of insurrection, and that was a different character. The equation would be this:

    In 1862, someone in Tennessee was accused of abetting the Southern cause. So Mr. Lincoln authorized this person to be shot on sight. The concept of “outlaw” was also not license to shoot someone upon mere accusation of a crime, nor was “dead or alive” authorization to kill if the individual did not resist. While doubtless such did happen, it was never the stated policy of the Federal government to do so, with some “star chamber” of officials deciding his fate and claiming it was “due process”.

    As for “violent extremism”, watch the narrative drift toward defining political opponents in those terms. The NRA, because it advocates strongly for private gun ownership, has already been called violently extremist in the media and far-left groups whose voice in the public discourse is outsized. Ditto the Tea Party, which has been consistently portrayed as racist gun-toters who would assassinate the President given the chance. The MSM has fueled that talk, and it has been taken up by political figures on the far left, some of whom are seated in Congress.

    I do believe such a slanted propaganda push will suffice to “show” these groups to be violent and extremist, at least to the satisfaction of those who would expiate the Second Amendment, the First Amendment (except for themselves), and the Sixth Amendment.

    Precedent. A powerful thing. Do not give any government the unqualified right to kill its own citizens, or to openly demonize a law-abiding segment of its society, simply because they are political opponents. The Twentieth Century should have taught us that.

    1. It was 1864, not 1862; and it was Sherman, not Lincoln; and it wasn’t Tennessee, but a few miles south near Marietta. Other than that the death of Leonidas Polk pretty much exactly matches your case. When you adjust for the differences in technology and behavior I think the Awlaki shooting is an exact analogue.

      You are totally wrong about the concept of outlaw. The original declaration was “Let his be a wolf’s head.” In other words treat the outlaw like any other dangerous predator: Kill on sight. Even in its most recent iteration nobody asked too many questions if a US Marshall came back from Indian Country with a body instead of a prisoner.

      I agree that the Left and the Media (BIRM) attempt to portray the Tea Party as violent. They have resoundingly failed. One major difference between us and the Nazis and Soviets is that our military isn’t indoctrinated with the same level of obedience. An order to kill a Tea Party member would almost certainly be disobeyed.

      One major function of government is to protect the populace from threats. If a threat comes from a citizen then it needs to act against that citizen. Ideally that action will be within the framework of legal proceedings, but we don’t live in an ideal world. When the citizen in question deliberately places himself outside the reach of the legal system, yet still poses a threat to the populace, the government must use more extreme measures to fulfill its obligations.

  5. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

  6. I would have been happy with a trial in absentia. Formal charges in a capital crime. Fleeing and remaining out of the country is reasonably considered voluntary absence.

    As it stood, it remains unclear as to what charges were even considered. NONE were proffered. No grand jury, no trial, no representation, no ability of the defense to call witnesses, nor cross examine, examine evidence, nothing. Instead, a small elite group of government officials deciding the fate of an American citizen.

    The better path is not to insist on full protection of the US Constitution in a civilian court for non-citizen illegal combatants who were captured on the battlefield, and then deny those very protections to an American citizen, irrespective of the offense that citizen is suspected of. And to then inform us that “due process” doesn’t necessarily involve judicial action (see Sixth Amendment, above).

    The better path is also to identify our enemies. Islamic extremists. Stop being so spineless and politically correct. Not Islam, but Islamic extremists. We have seen already how Napolitano and DHS want to lump likely political opponents into the “violent extremist” category (Veterans who believe in smaller government and the Second Amendment), but also how this administration gutlessly labels Major Hasan’s shooting rampage (as he is screaming “Allahu Akbar!”) to be workplace violence.

    We are in an ideological and physical struggle against an enemy who despises our freedom and wishes to destroy our way of life. And we kowtow to them, bow to them, apologize to them, make allowances for them, lose American servicemen and women to them, in order that we dare not offend. And every step of our retreat is an advance by our enemies.

    1. URR: Rule 43 of Federal Procedure, with nods to the 5th, 6th and 14th amendments.

      Trial in Absentia just makes a flat-out mockery of due process, especially in a capital crime. I’d rather see someone simply executed without the pretense.

      1. INAL, but I thought trial in absentia could only take place after arrest and arraignment, when someone then flees from the jurisdiction.

        And I have to say, I’m with Rusty that such trials are potentially more damaging to our system in the long run, giving color of law to what is essentially and act of war.

        If Awlaki HAD been indicted with a crime, that would actually undermine the argument that the killing was militarily sound, rather than an extrajudicial execution.

    2. Brad, you’re exactly correct. Someone has to voluntarily give up their right to be present for a trial in absentia to be valid. And no, URR, you can’t try and call “not turning yourself in” equivalent to “voluntarily giving up your right to be present.”

  7. Another problem with trial in absentia is what to do when you have a sentence. Are only capital cases subject to these trials? Does death by Hellfire violate the cruel and unusual prohibition? How many appeals? What if the jury comes back with a sentence less than death? If we could arrest and detain the person wouldn’t we have done so before the trial?

  8. Lt Rusty,

    When the accused chooses to absent oneself from the proceedings, it isn’t a “mockery”. If we are nodding to the 5th, 6th, and 14th Amendments, and to Article 3, Sections 3 of the Constitution, what again was the “process” that Holder was describing? Where in Federal Procedure does it say that Law Enforcement gets to decide what “process” looks like?

    You consider an in absentia trial damaging to our system? Yet, ignoring the system altogether is not? Wow. Can’t begin to buy that. Ever.

    “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

    Secret proceedings for the Federal Government to decide the fate of an American citizen who hasn’t even been charged with a crime.

    Read that again. And again. And again.

    Never, ever give such power to a government so that one can only trust in the benevolence of those in charge to not destroy our freedoms. That is why the Constitution is written as it is.

    1. Just to fully inform, I made many of the same arguments in 1991 when Dick Thornburgh widely expanded asset seizure authority under RICO to include anyone whose name is associated with an ongoing DEA investigation, without any pretense of appeal or due process.

      The argument then was the same. The drug scourge, and the “war on drugs” was such a serious problem that due process had to be set aside for everyone’s own good.

      That was a major milestone in the expansion of Federal authority and erosion of the rights of US citizens. That slippery slope had directly contributed to our discussion here. Precedent. Damned powerful thing, that.

    2. URR-

      I didn’t say that ignoring the rules altogether is not damaging to the system. It absolutely is. BUT it does have the benefit that everyone can SEE that the rules are being ignored, and THAT will piss people off.

      When at least minimal lip service is paid to the rules, you’ll always find people that can spin it as having precedent, and then it becomes precedent for use later, and so on and so forth.

      And as for the idea that Law Enforcement gets to decide what due process looks like, isn’t that what happens when you try, convict and sentence someone in absentia when you haven’t even made an arrest or arraignment yet? Please don’t tell me that you think that simply being a wanted fugitive and unwilling to turn yourself in means that you’ve voluntarily given up your right to be present at your trial and confront witnesses, etc.

      Just for the record here, I’m against depriving a citizen of due process, whether it’s by secret trials, trials in absentia, or simply assassinating them. I’m not arguing that any of those are good things, just that some of them are further beyond the Pale than others.

  9. Holder made his remarks and they went largely unchallenged, so not many were pissed off.

    This is the SAME MAN who insisted for Constitutional guarantees for non-citizen illegal combatants captured trying to kill Americans.

    This is not a rabbit hole about in absentia trials. Your point that Law Enforcement is unfettered in its desires in an in absentia trial is not correct, as there is a defense, witnesses, rules of evidence, cross examination, and a jury. No, simply being a wanted fugitive does not necessarily mean you have voluntarily surrendered your right to presence. However, how this Administration chose to go about dealing with an American citizen, after its desires of how to deal with those in GITMO, is telling indeed.

    And it is precedent. Killing of an American without charge, after the secret deliberations of government officials.

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