Saturday, August 06, 2005

Military Tribunals and the Denver Post...

Denver deputy districy attorney Neal Richardson and Denver lawyer Spencer Crona penned a perspective in today's Denver Post praising military tribunals as somehow necessary and proper. The article focuses on the unanimous decision of the DC Circuit Court in July which affirmed the use of military tribunals for accused terrorists. I've read well reasoned pieces defending the use of tribunals, this piece was not one of them.

The case in question concerned Osama Bin Laden's driver (by the way, where is Osama?) who was captured in Afghanistan in 2001. The two write,

Hamdan's defenders nevertheless portrayed him as a blameless household servant, as though his culpability was no greater than Hitler's German shepherd. Yet every first-year law student knows that the "wheel man" driving the getaway car in a bank robbery is liable for murder when the gang leader kills the guard on the way out.

Where to begin? If this analogy seems contrived and confused to you that's because it is. Certainly the wheel man may be liable for a murder committed in the commision of a robbery, but he may not depending on the jurisdiction - there is no per se felony murder law in the Model Penal Code. A small distinction for sure but one that two attorney's should recognize and own up to.

More importantly though I find it interesting that they say that a driver would only be "liable". Notice that they don't say that the driver would be "charged" or "tried in a court of law", only that he/she would be - generally speaking - "liable". Presumably a driver would be charged with a crime, tried in front of a jury, convicted and punished according to the laws of the United States and whatever specific jurisdiction the crime was committed, would he not? Of course he would, which is of course why Richardson and Crona use the broad phrase "laible". If one follows their analogy, that Osama Bin Laden's driver is as cupable as their "wheel man", to it's logical conclusion Osama Bin Laden's driver should have been charged with a crime and granted a jury trial - as our Constitution requires. Of course in the case of Handen the Constitution is inconvenient so Richardson and Crona continue on with their Constitutional-Relativism approach ignoring the enormous logical hole in their argument.

The two continue on,

Military commissions are a constitutionally appropriate manner of trial for enemy war criminals used throughout our history

Constitiutional they may be but the Clinton Depratment of Justice was able to charge, prosecute, and jail those terrorists responsible for the 1st World Trade Center bombing. Just last week this same Bush administration convicted the terrorist behind the thawarted Millenium Bombing at LA International Airport. Our friends in Great Britain have been rounding up and charging in their traditional justice system those connected with the recent attacks in London. Charging and trying terrorists within our criminal justice system is not some new and novel approach, rather it is a tried and true method which allows us to maintain our Constitutional integrity.

The two continue by attacking Henden's defense attorney's argument that the tribunals and GITMO are endangering the lives of American soldiers,

The second fallacy [in Katal's argument] is the transparent attempt to pitch the case toward the Supreme Court with a "security" spin on it rather that a "more rights for terrorists" spin. Hamdan's defense counsel implies that we should give terrorists rights they don't deserve under the Geneva Convention, in the hope that the enemy will reciprocate when our soldiers are captured. We all know that if our own troops are captured by al-Qaeda, they likely will be beheaded on camera after a five-minute, Internet "trial" (which begins, reminiscent of the Queen of Hearts in Alice and Wonderland, with the reading of the sentence).

This is a common argument put forward by those who support the Bush administration's policies. Their argument is essentialy that "the terrorists act this way so we can to", nevermind that we are not ourselves terrorists. Shouldn't we hold ourselves to a higher standard than the religous-fascists we are fighting? When we stoop to the level of terrorists our image in the Middle East and around the world is damaged futher. We lose credibility when, on one hand, the Bush administration argues that we should be bringing democracy to the world and then on the other hand so blatantly subverts democratic processes. Quite simply when we begin to act like terrorists we lose all moral high ground.

Next they turn their ire on their fellow Democrats,

Senate Democrats should be cautious about how they appear if they chime in with civil libertarians who have criticized this ruling. As Democrats concerned about terrorists "going nuclear" (and as commentators who long have proposed military trials for terrorists), we take exception to the depiction of military commissions as creatures of the Bush administration.


How exactly should we be viewing these military tribunals given the revelations this week that the Pentagon was fixing the tribunals?

As the Pentagon was making its final preparations to begin war crimes trials against four detainees at Guantánamo Bay, Cuba, two senior prosecutors complained in confidential messages last year that the trial system had been secretly arranged to improve the chance of conviction and to deprive defendants of material that could prove their innocence.

The electronic messages, obtained by The New York Times, reveal a bitter dispute within the military legal community over the fairness of the system at a time when the Bush administration and the Pentagon were eager to have the military commissions, the first for the United States since the aftermath of World War II, be seen as just at home and abroad.

During the same time period, military defense lawyers were publicly criticizing the system, but senior officials dismissed their complaints and said they were contrived as part of the efforts to help their clients.

The defense lawyers' complaints and those of outside groups like the American Bar Association were, it is now clear, simultaneously being echoed in confidential messages by the two high-ranking prosecutors whose cases would, if anything, benefit from any slanting of the process.

In the face of such evidence Richardson and Crona's indignation at those of us who see the tribunals as little more than Kabuki-Theatre fails the laugh test. Their contention that these tribunals are somehow not "creatures of the Bush administratin" is simply not factually correct as evidenced by the Times article. It is clear to the entire world that these tribunals are a judicial farce and all American's, Republican or Democrat, should stand up against the practice. Richardson and Crona's defense of the tribunals is logically and factually flawed, we do not need these tribunals - instead we need to let our democratic processes fucntion as proscribed in the Constitution.


51 Comments:

At 1:07 PM, Anonymous Anonymous said...

Crona and Richardson reply:

It has been nine years since we first proposed the constitutional use of military commissions for trial of accused terrorist war criminals and six years since we first began speaking about the subject. In that time, we have been gratified to see commentators such as former White House counsel John Dean, on the FindLaw website, and Sen. Joseph Lieberman, in The Washington Post, express support for such commissions.

On the question of the "small distinction" to which we should "own up" with regard to felony murder, all we can say is that if that there is a jurisdiction in the United States that does not have a felony murder statute, we would like to hear about it. Beyond that, we’re bewildered by the continual attempts to minimize the alleged conduct of Mr. Hamdan as the chauffer for a mass murderer war criminal sought by authorities throughout the world.

On the question of constitutionality of military commisssions, the response consists of more of the same, including the usual internal contradictions (First, the Constitution is "inconvenient" for "Constitutional relativists" like Crona and Richardson, but then there’s the admission, with reference to tribunals, "Constitutional though they may be . . . ."). In consistent contrast, recent appellate decisions have strongly affirmed the constitutionality of military commissions. Both Justice Sandra Day O’Connor’s plurality opinion in the 2004 Hamdi case and the U.S. Court of Appeals opinion in Hamdan revived and reaffirmed the applicability, to precisely this question of the constitutionality of military tribunals in the current conflict, of the WWII era precedents of Ex parte Quirin and In re Yamashita. Both of those longstanding Supreme Court decisions recognized the constitutionality of military commissions for trial of war criminals. Unless one wishes to challenge the principle of stare decisis, it’s time to accept the constitutionality of military tribunals for use right now to adjudicate cases of accused terrorist defendants.

Thus, it is quite completely erroneous to say, ". . .Osama Bin Laden's driver should have been charged with a crime and granted a jury trial - as our Constitution requires," implying a trial before a civilian jury in federal court. As clearly enunciated by Quirin, Yamashita, Hamdi and other authorities, our Constitution requires nothing of the sort. It follows that trying accused terrorist war criminals through the historically and constitutionally appropriate forum of a military commission - which also is before a jury, albeit a jury of military officers - would respect rather than diminish "constitutional integrity."

As to the content of the response below the words "constitutional integrity," we can only say that, from a practical perspective, it’s simply wrong. Before ridiculing commissions as "Kabuki theater" and "a farce" (similar to conservative columnist William Safire’s attack a few years ago in a column so ridiculous it fostered concern that a mental-status exam might be in order), time and trouble should be taken to read the commission rules of procedure promulgated by the Department of Defense, which continues to refine the process. Among other safeguards, they provide for right to counsel (and the military defense counsel already have demonstrated their impressive professional capabilities), right to review prosecution evidence in accordance with basic discovery principles, presumption of innocence and beyond-reasonable-doubt BoP. The process is the "due" one, upon review under Mathews v. Eldridge principles, and some of Bush’s neocons probably are dismayed at the fairness the Pentagon designers have established in the modern commission procedures.

Consistent with historical applications, the commission rules do provide for a more efficient, pragmatic process. It affords appeal but, to the chagrin of the defenders of the civilian criminal justice system for war criminals, not the de rigeur 20 years of appeals in capital cases. Also, in realistic recognition of the nature of evidence in war crime cases, the rules provide for a standard of evidence more reflective of the residual exception to the rule against hearsay. Indeed, O’Connor in Hamdi specifically approved such evidentiary flexibility.

And now, also pursuant to the Hamdi decision, there are combatant status review panels to effectuate an appropriate status-determination review for detainees. It’s true that these guys aren’t afforded all the procedures mandated by the Geneva Conventions for conventional PoWs, but that’s not what they are, and we don’t expect Osama to direct a taxi driver to drop him at the UN so he can run in and become a signatory anytime soon. Furthermore, irrespective of the option, selected in some previous cases, of adjudication before a federal district court, a military commission is the appropriate place for trial of accused war criminal mass murderers rather than before a jury of civilians, along with common bank robber and crack peddler defendants, for all the reasons above and others we have taken pains to delineate in various publications.

From a political perspective, we note that we often hear now of Democrats needing to be "for" something and needing to break away from certain traditional interest groups. Then it just saddens us to think that when someone - who generally believes the Bush administration is a catastrophe on wheels, who opposes virtually every policy of that administration, who has worked for Democratic candidates and elected officials dating from the better years of Dale Tooley, Floyd Haskell, Dick Lamm,Tim Wirth, Pat Schroeder and Gary Hart all the way to Ken Salazar and John Kerry - proposes a strong, legally well-grounded, pragmatically appropriate, proactive measure against terrorism, the result is the same kind of knee-jerk outraged response that has become tiresome boilerplate among liberal civil-liberties interest groups.

Consider the context: this is a time when many independent and swing voters are primed to become disillusioned by the Republican Party’s obsequious deference to right-wing evangelical extremists and to the cause of ideology over practicality. (Bill Frist had the temerity to get his mind right on stem-cell research, and now he’s publicly disinvited to the upcoming "Justice Sunday II" hatefest, but Tom DeLay naturally remains on the agenda.) But the post-election research indicates those voters ripe for the picking are going to turn off to candidates viewed as "soft on security." If Democrats can’t break with the special-interest groups on fighting terrorism, well, what can they show independence on?

 
At 11:36 AM, Blogger YellowDogDem said...

I emailed Mr. Crona after posting this and offered him and Mr. Richardson a chance to reply. I am glad the two took me up on my offer and I appreciate them taking the time to engage in this dialogoue.

Thank you gentleman...

 
At 10:40 AM, Anonymous Anonymous said...

Crona and Richardson say: Thank you for giving the topic exposure for discussion in the Democratic community. Dems naturally and properly view the military with skepticism and circumspection, but military officials whose genuine agenda is only service to the country (and there are many) often have a better idea about how to address security problems than politicians. Remember that it was the Bush administration neocon propagandists, not the generals, who maintained (later on, when the WMD rationale proved baseless) that war in Iraq was also war on terror. Meanwhile, Osama slipped through W's outsourcing of the search in Afghanistan, and that place isn't even secure yet. In campaigning for congressional seats next year, Dems will need to be proactive and, among other things, demonstrate support for the forces and for security against terror, as distinct from certain policies. Reclaiming the Congress from the right-wing, death-cult evangelical extremists and the greedbag plutocrats who control the GOP is imperative to rescue the nation from the GOP's largely disastrous public policies.

 
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