PhotoDude.com

Thu. Dec 06, 2001

A Flawed Necessity: Military Tribunals

A Flawed Necessity: Military Tribunals – Before we get to the meat of the matter, let’s start with the growing feeling I have that a large share of the problem here is the salesman’s pitch. ’To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve,’ Ashcroft told the Senate Judiciary Committee. ’They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.’

My first reaction upon seeing Ashcroft say those words tonight was, ”Well, Screw You, John Ashcroft.” Actually, it was worse than that. In effect, he said those that cry loudly about what they see as a loss of liberties are unpatriotic, they are aiding bin Laden.

Does that make them subject to the tribunal?

As you’ll see below, I’m trying to be on his side (or I was). I mostly agree with the need for the military tribunals, but I have some strong criticisms. Mr. Ashscroft seems to suggest since they have our best interests at heart, we are unpatriotic to question them, and I should just shut up and stop aiding and abetting the enemy. I once again must exercise my First Amendment rights, and repeat:

Screw You, John Ashcroft.

As the top legal figure in the executive branch, you, of all people, should do nothing to suppress free speech, by your actions, or by your words. That is your duty to uphold, part of the Constitution. You failed miserably today, and I think you owe Americans an apology. I know you were probably referring to the Chomsky/Fisk crowd, and their strange bedfellow William Safire. But you insinuated that we, the public, will be diminished in resolve by merely hearing the words of dissent, and that is frankly insulting. It suggests Americans can’t listen to a variety of opinions, loud or not, and make up their own mind without being scared into silence. What do you think we’ve been doing since September 11? Haven’t you been reading warblogs? We eviscerated Chomsky weeks ago. I finished off Fisk myself. We’ve got it covered, and you do your cause as much harm as good with statements like the above. You need to de-shrill several notches, you’re on eleven, man. Have some prune juice and chill for a while. We’ll all feel better.

Now that PhotoDude has vented some radioactive steam, he feels better, too, and we can move on to the source issue itself.

I think it’s interesting when the military tribunals first came to light. As I recall, it was the day before Kabul fell. I can imagine the concern in Washington, as it became clear the Taliban was disintegrating. It was possible that any day, they might find some anti-Taliban fighters at their doorstep handing over a captured evildoer like Atef, Zawahiri, Omar, or even bin Laden. What would they do with him/them?

It seems clear there is no way you could try any of these people within the standard issue US justice system. In what jurisdiction could you establish a fair environment for a trial, and find a jury of 12 unbiased ”peers”? Where would you sequester the jurors, where they would be invulnerable to a truck bomb or other attacks? Would you be willing to protect them for many many years after their duty is over, to keep them from becoming yet another victim of terrorism? How would you handle the process of discovery? Open up the files of the CIA and the FBI so the defense can see if there were leads to other suspects? How would you keep the process from becoming both a media circus and a platform for Al Qaeda propaganda? And after it’s all over, assuming conviction, will you be willing to do it all again on appeal, as it will surely be claimed the trial was biased and unfair?

It’s just not workable. When I heard of the plan for military tribunals, it made sense to me. But once you look at the details, and the very way it came about, there’s some serious problems. Our government is based on a system of checks and balances, primarily in the form of three branches of government. In this case, the executive branch drafted the tribunals, with absolutely no consultation with Congress, and eliminated the right to appeals, in effect finishing the job of cutting out the judicial branch.

I know we’re at war, and that the Commander in Chief has broad powers in such times. But there was no instant crisis that did not allow for consultations. A very similar system could have been created with even just ”window dressing” consultation with leading members of Congress, and hey, throw in a Supreme Court justice. Or three. It would have provided ”cover” for the heat they are now taking, and who knows, some of those people might have actually had some good ideas about the implementation. At the very least, it wouldn’t look like a complete disregard for our Constitutional system of checks and balances, and that’s serious mojo to be messin’ with, war or not.

Now early on, the White House said the proposal would be shipped over to some lawyers at the Justice Department to make it ”workable.” Of course, I’ve heard nothing more about that, nor any anticipated changes from the initial proposal. And my overall approval of the concept is severely tarnished by some of the specifics of the mechanism.

The biggest problem I have is with the requirement that only two thirds of the ”jurors” are needed to determine guilt, and one would presume, sentencing. Now just who are these jurors likely to be? My guess is they will all have birds or stars on their collars. And if you’ve got one to four generals or colonels on a jury who are not convinced of the defendant’s guilt, isn’t that something you should listen to?!? If the prosecutors can’t convince that crowd unanimously, they should never be allowed to appear before a judge again. And you shouldn’t send someone to jail, or to their death, based on such a split judgement.

I’m also not convinced about the requirement for a government appointed defense attorney. I could understand a large if restricted list of US attorneys to choose from, and could even understand forcing that attorney to sign the most binding and stern Non Disclosure Agreement in the history of mankind. But if you’re going to say, ”here’s your uniformed lawyer, and those guys in uniform over there, they’re your jury,” then throw in the two thirds rule, you give the appearance of a kangaroo court, despite your best intentions to only protect the nation from further harm.

I think this is a proper idea that was very poorly authored. It is salvageable, though, with some changes. Changes that aren’t likely to happen, since John Ashcroft is busy carving stone.

And throwing them.