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ETpro's avatar

If Military Tribunals don't work for terror trials, why keep supporting them?

Asked by ETpro (34145 points ) February 15th, 2010

Trying terrorist in Military Tribunals may be a popular idea with the right. No question that we all feel a desire for revenge. There’s something internally satisfying about cutting such people no slack, even about torturing them. But is that the best way to get results?

Since 9/11, we have tried and convicted 195 people in “criminal cases arising from terrorism that is associated—organizationally, financially, or ideologically—with self-described ‘jihadist’ or Islamic-extremist groups like al-Qaida.” This is per non-partisan Human Rights First. The Bush administration tried only three people in Military Commissions and those convictions were subject to a series of appeals that handed Bush setback after setback all the way to the US Supreme Court. Because of legal challenges, two of the three men convicted were later released by Bush. One went to Yemen, where he became a top operative of Al Qaida in the Arabian Peninsula and trained and armed the Christmas Day underwear bomber.

With such a dramatic difference in success rates, why must we politicize the fight against terror? Why not use what works instead of insisting on ideology even when it runs head-on into facts?

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17 Answers

FlutherNOW's avatar

Because we are forgetting this is a WAR!

In a WAR there is an ENEMY. When the ENEMY is captured, he becomes a prisioner of WAR, and thus is tried as a WAR criminal. Why do we insist on giving these WAR CRIMINALS civilian rights? How can we effectivly fight a WAR, when we play political games? Hell, they should be lucky they even get a trial, be it a military tribunal or not. When a soldier gets captured over there. Off with the head!!

robmandu's avatar

Do military tribunals work in all cases? No.

Are military tribunals being over-used more than they should be? Probably, yes.

Is a civilian court trial suitable for all cases? No.

The thing to bear in mind for civilian court trials is: what do you do with combatants who have been captured on a battlefield in a foreign country by the military?

Chances are, they’ve not been read their Miranda rights. Boom! Case dismissed.

Where do you find a U.S. population of their peers?

How do you manage the needs of the military personnel currently serving on the front line to pack up and ship stateside for weeks/months at a time to participate as witnesses in a civilian trial?

Jurisdiction is a problem in that the U.S. law being applied was not broken on U.S. soil.

To me, if a person can be (or has been) arrested in U.S. jurisdiction by U.S. law enforcement, then all the rules of civilian court should be applied.

However, if a person has been captured by U.S. military forces in a foreign land, then necessarily other rules must apply.

It’d be nice to see this done consistently and fairly… and not up to government/military whim.

susanc's avatar

@FlutherNOW We haven’t declared war on any nation. We’ve declared a “war on terror”.
Thus the definition of an “ENEMY” is a little murky. As for “off with their head”, there are rules for this kind of thing. We can’t just do what they do in the comic books.

@robmandu: nice.

The_Idler's avatar

I tell you what “worked” against the IRAs, we just started delivering small amounts of lead very fast into the back of their top guys’ heads.

It’s a great idea we picked of from those guys in the IRA…

FlutherNOW's avatar

@susanc
No I dont mean we should off with their head, but thats what they do to us. I would think we have decently defined enemies. AlQuieda, for example, is a pretty clearly defined enemy. That Nigerian underware bomber, that sounds like an enemy of the state to me.

We can’t be giving ALL these foreign enemies “equal protection under the law.” It is simply too inefficent. These people are the scum of the earth and do not have a legal leg to stand on. Why waste the money? Look at Europe, it’s a mess!

I stand pretty much where Rob stands, maybe slightly more on the extreme side :)

Broken_Arrow's avatar

When you say “we,” who exactly are you talking about? Some of us happen to see “terrorism” for the fearmongering and manipulation that it is and regard “terrorists” are those in Washington, planning the invasion of foreign lands, the pillage of their natural resources and the genocide of their innocent citizens.

ETpro's avatar

@FlutherNOW I beg to differ. The Constitution quite clearly gives the US Congress the sole power to decalre war. There is no rider allowing them to out-source the dirty job. I may agree with you that we SHOULD have declared war on the Taliban and Afghanistan, but we did not. That is why all the challenges to Bush’s military tribunals were so successful. Like it or not, we are a nation of laws, and our law does not provide for presidents acting like Kings, declaring war on their own, and deciding who is and isn’t a military combatant. Again, only 3 trials and 2 were reversed. And yet, despite this we should embrace the failure? Why?

@robmandu That distinction between battelfield capture and crimes committed on US soil makes sense to me. It is unfortunate we never formally declared war, as this would have made the battelfield arrest far clearer and avoided numerous legal hurdles that have so far hamstrung military tribunals.

@FlutherNOW The right to remain silent and the right to a jury trial are not rights of US Citizens, they are a fundamental part of our rule of law. It is interesting that even after Mirandizing the Christmas Bomber, he is cooperating with the FBI and gving highly actionable intel on the operations of terrorists in Yemen. As Jack Bauer good as it may feel to torture people, it doesn’t tend to yield actionable intellignece. Instead, in order to make the pain stop, they confess to whatever they think the torturer wants to hear. You end up spending your valuable anti-terrorism resources chasing fake leads all over the world instead of actually stopping operative plots.

@Broken_Arrow By we I mean the majority of the people of the USA. Granted there has been too much fear mongering, but that doesn’t negate the fact that we have a dedicated enemy out there who has already killed more then 3,000 of our innocent people and is still determined to kill more. Are you a 9/11 conspiracy theorist?

susanc's avatar

I agree that we need to figure out how to categorize people who mean us harm but are not part of a nation which means us harm. The Bush Administration couldn’t figure it out and the Obama Administration can’t either, apparently. Neither can I. What to do?

CaptainHarley's avatar

I swear some of those on here ( a minority, thank God! ) have only a very, very tenuous grip on reality. Terrorism is real, whether you too scared to admit it or not! Get the hell OVER yourself! And if you think I’m talking about you, then you’re probably right!

Nullo's avatar

@robmandu
Since when do citizens of foreign countries that get arrested in foreign countries have Miranda rights? Srsly.

ETpro's avatar

@Nullo Anyone arrested by the US justice system, whether a citizen or not, is routinely read their Miranda Rights. because if they are not, then things they say can not be used in a US Court of Law. Since we are not actually at war per the Constitution’s definition of that, we are on thin ice abandoning our perfectly competent legal system for a military tribunal. The statistics so far bear that out. 195 terror related convictions in Federal Courts. 3 cases tried in Military Tribunals, resulting in one imprisonment and two having to be realeased on appeal.

robmandu's avatar

@Nullo, if a person is arrested and not read their Miranda rights, then a U.S. court of law will dismiss the case.

That presents a somewhat formidable barrier to trying “enemy combatants” in a U.S. court… and yet that’s what the current administration has been trying to do (somewhat unsuccessfully.)

The good news is that VP Joe Biden has assured us all that in the case of Khalid Sheikh Mohammed, we’ve got nothing to worry about, stating, ”He will not be acquitted. He will be found guilty.

Good to know that the current administration is on the ball ensuring a fair trial regardless of the venue.~

Biden’s quote, made Feb 14, 2010 on NBC’s Meet the Press, can be seen around the 1:20 mark of the linked video.

ETpro's avatar

@robmandu Actually, the statistics are exactly the opposite of what Nullo and you state. The cases tried in criminal court have led to 195 convictions. Bush tried 3 cases in Military Tribunals and got one conviction but had to release 2. So unless your stated goal is to make sure we release as many terrorist as possible, you and Nullo and VP Cheney are barking up the wrong tree.

Nullo's avatar

@ETpro
I didn’t state any statistics. O_o

robmandu's avatar

@ETpro, I also didn’t state any statistics or really even a preference for conviction rate.

My point was that it seems to me that there are a lot of procedural conventions we rely on in the American court system to protect U.S. citizens who are presumed innocent until proven guilty. And because those conventions are not usually followed on the battlefield and that detainment takes place on foreign soil, then that presents barriers to the consistent execution of our laws.

In other words, the only way to get an enemy combatant on trial in a U.S. courtroom is to change, ignore, and break the very laws that make the U.S. courts the ideal place for anyone to get a fair trial.

Indeed, Joe Biden’s eloquent ignorant reckless statements practically guaranteeing a guilty verdict in the KSM trial puts the exclamation point to that concept.

ETpro's avatar

@robmandu When you are considering what to do, reviewing what actually works is not a bad starting point. That’s why I feel that looking at success rates in each system is a valid concern.

The rights to a trial by jury, presumption of innocence till proven guilty, the right to an attorney and the right to refuse to testify against yourself are not rights reserved to US Citizens in the US Justice system, they are rights of anyonen who runs afoul of our laws. Till we actually decalre war on somebody, we don’t really have any enemy combatants and our own courts have restrained us from trying to bend those laws.

Biden’s comments about the likely outcome of the KSM trial are simply observing the obvious. The man CONFESSED! Miranda or not, he BOASTED about his guilt. If there has ever been a slam-dink case in a criminal court, KSM’s is it.

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