Another Write-wing Conspirator

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    Armchair philosopher, politically-incorrect political commentator, raconteur, retired air traffic controller, dilettante truck driver, US Army veteran, recluse, sometime-writer, redneck convert neè Buckeye, ne'er-do-well, bon vivant, unrepentant libertine, unapologetic libertarian, and (of course) curmudgeon…

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From Geneva to Gitmo

Posted by The Curmudgeon on February 4, 2010

Of all the developments stemming from the 9/11 attacks and the ensuing “war on terror,” none has proved more convoluted or confusing than the impact on the justice system—both the civilian and military components. What might seem on the surface simple problems for which there are simple solutions has burgeoned into a complex conundrum.

Don’t think so? Do just a few minutes’ searching on “prisoner of war,” “enemy combatant,” “unlawful combatant,” “Geneva Convention,” or anything related to the conduct of war and treatment of detainees based on international accords.

Be sure to have plenty of aspirin handy when you do.

Further muddying the waters are the questions of whether alleged terrorists should be tried before military tribunals or turned over to civilian courts, what constitutes an act of war (and how it should be dealt with), whether to bring suspected terrorists to the U.S. for trial, and whether those suspects are entitled to Constitutional safeguards.

And then there’s that plan to close Gitmo…

Is deliberately flying an airliner into a building a crime (an act of terror) or is it an act of war? On 9/11, we weren’t in a declared war with any nation. We weren’t attacked by a uniformed military force. Usama bin Laden wasn’t a head of state—and his organization is itself stateless. Heinous though it was, destroying the World Trade Center was on its surface no more an act of war than were the Bali nightclub bombing, the 1993 World Trade Center bombing, or any of the dozens of bombings and attacks carried out on buses, airplanes, and markets around the world.

Why, then, is there a public outcry demanding that those responsible be put on trial before a military tribunal? The Mafia, for example, is also stateless, and has no military structure. If the Mafia declared itself at war with the U.S. government and started killing police officials and politicians, would there be military tribunals for such acts? No. Those are criminal acts, adjudicated in criminal courts.

…unless those suspected to be involved in such crimes were to be declared “unlawful enemy combatants.” This determination—provided for by international law—has the practical effect of modifying both the nature of the suspect’s detention and his/her access to the criminal court system.

Historically, military tribunals were first convened where no civilian court was available. Over time, their use was selectively expanded—probably to deny the accused Constitutional safeguards required of civilian courts. More recently, President Franklin D. Roosevelt consigned a band of German saboteurs to a military tribunal in 1942. It appears that post-9/11 tribunals were established with this in mind, as well (holding detainees at Guantanamo—outside the U.S.—was probably intended in part to strengthen this stance). However, reliance on these tribunals has become a less-certain proposition owing to Supreme Court decisions narrowing their scope.

The treatment and disposition of prisoners of war (POW) are clearly addressed by international laws and treaties; indeed, the designation “POW” is itself subject to strict legal definition. Iraqi military personnel captured during combat operations were afforded treatment in accordance with these tenets. The remainder of armed personnel captured by U.S. and allied forces do not fall into this category. They’re not soldiers. They don’t belong to a uniformed armed service. They don’t represent a belligerent state. They are, however, in large measure afforded the same protection and treatment as POW’s—also in accordance with international law. As nearly as can be determined, the indefinite detention of these personnel is legal and proper—and certainly prudent. Their status is generally determined to be either “enemy combatant” or “illegal combatant.”

With regard to armed personnel (non-POW’s) captured during combat operations, other questions arise. By what logic are they supposed to be removed from the detention facility at Guantanamo (or wherever they’re being held) and thrust into the U.S. court system? Again, they are by definition either “enemy combatants” or “illegal combatants” (you’ll have to figure that one out based on international law). They’ve committed no crime in the U.S., nor (for the most part, anyway) even set foot on U.S. soil. It would seem that they’d be more correctly tried before military tribunals—if at all.

How did Khalid Sheikh Mohammed (“KSM”—the professed mastermind of the 9/11 attacks) come to be deemed an “enemy combatant”? There’s no indication that he ever bore arms in combat against U.S. forces. He was captured in a surprise raid in Pakistan (where we didn’t have any combat troops) by Pakistanis. He was quickly turned over to U.S. personnel (there’s some question as to whether formal extradition procedures were followed). How could a military tribunal gain jurisdiction?

Because a Combat Status Review panel declared him (as well as others) an unlawful enemy combatant—thereby exempting him from the jurisdiction of criminal courts. Civil-liberties advocates condemn this determination as a thinly-veiled attempt to circumvent Constitutional safeguards.

On the other hand, the decision by the Attorney General to try KSM in a New York City civilian court has produced an understandable outcry (understandable—though not necessarily correct). The outraged citizens of New York don’t want alleged terrorists in their midst. The mayor doesn’t want to foot the bill (projected cost: $200 million per year for a trial now expected to last three years—though nobody has yet explained why such a trial should cost so much or last so long). No one wants to confront the looming security nightmare, and valid arguments are made that holding the trial in New York makes New York very much a target for further terrorist attacks.

Justice Department officials, meanwhile, cite legal requirements for the KSM trial to be held in New York. One must wonder how that will play out, however, if defense counsel requests a change in venue. Certainly, there’s been enough pretrial publicity to meet the legal standard in the regard; on the other hand…is there anyplace that hasn’t seen comparable publicity? As to the security concerns…there’s ample evidence that New York has been a preferred target for years; it’s doubtful whether the threat could be significantly raised beyond its current (and ongoing) level. And given similar scenarios (let’s say that someone tosses a bomb at a police precinct headquarters and kills several officers, then flees the jurisdiction), it’s safe to say that New York would be demanding that the perpetrators be extradited for trial.

As to allegations that the government is using military tribunals in an attempt to pull an end-around to bypass the Bill of Rights…so, what? Notwithstanding anecdotal episodes of chicanery, this nation has a long history of vigorously protecting the rights of the accused, one that stretches back to a time before it even became a nation (need anyone be reminded that the defense counsel for British soldiers put on trial for the Boston Massacre was none other than John Adams—the foremost Boston lawyer of his day and future U.S. President?). The laundry list of guilty (probably) persons set free based on “legal technicalities” is considerable. Defense attorneys and civil-liberties activists have compiled an impressive track record of finding the most arcane rationalizations for snatching their clients from the jaws of justice (hence the “advocate” part of their job description); why, then, should the people’s advocates not display the same level of zeal and creativity in doing their job of protecting us from the savages represented by the defense attorneys? There is no indication that the founding fathers ever intended for the legal system to be subverted and brought to bear against the very nation it serves. Lest it be forgotten, these detainees are not recalcitrant Boy Scouts. They are radicalized fanatics determined to harm this nation and its citizens.

The question of repatriation is another matter. POW’s typically are held captive until the formal cessation of hostilities—the end of the war they were fighting. Inasmuch as enemy combatants are afforded like treatment, it stands to reason they they should be likewise detained until such time as hostilities cease. Why, then, would there be any rush to haul them before either a military tribunal or civilian court before hostilities cease and the smoke clears? Moreover, there have been indications that some detainees (KSM comes to mind) might be freed by a civilian court; if they never actually come to trial, then they won’t be going anywhere anytime soon.

Whether by design or by default, George W. Bush provided the best answer to many of these issues: Gitmo.

Regardless of their status or reason for being held, detainees at Gitmo are kept under tight security. They’re out-of-play, not free to wreak havoc where they may. There’s legal foundation for holding them indefinitely (exactly how would we know when hostilities have ceased in this “war”?). They pose no immediate threat to the U.S. Why ruin all that?

Because Candidate Obama vowed to close Gitmo—and reiterated this aim after his election (he’s now nearly a month behind schedule—and a long way from achieving that goal). His motivation was purely political, a sop to appease his liberal base. The claim has been advanced that terrorist organizations cite Gitmo as a recruiting tool; closing Gitmo, however, would be little more than a cosmetic touch—and its successor would simply become the next recruiting tool. Obama’s plan to transfer detainees to Thomson, Illinois would solve no problems.

It would, however, create another by importing dangerous detainees onto U.S. soil—and into the criminal justice system.

_______

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One Response to “From Geneva to Gitmo”

  1. Lynne Z said

    Not to mention that Obama & crew have handed defense lawyers the juicy option of “mistrial/acquittal” by publically annoucing, “He will be found guilty!” Screwy state of affairs when our own POTUS taints the jury pool.

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