BBC: U.S Likely To Try Civilian Suspects In Secret Military Tribunal.

Well, you definitely cannot let suspected terrorists get off on technicalities like so many other criminals in America. Then again, the military tribunal doesn't sound fair either. Are these really the only two options?

 

If only it wasn't for that pesky rule of law.

 

The concept "rule of law" supports the government's stance in this case. We have different standards in our judicial system for enemy combatants, and I don't think anybody here would suggest that they be given the same rights as American citizens.

This thread is about offering complaints, without offering solutions.

 

I don't have a problem with military tribunals in some cases.

You claim that the rule of law is what's being used here. Yet the rule of law in military tribunals was never to be used when you didn't have a strong enough case to proceed with a civilian proceeding. That's what the quote that MacBeth listed is basically saying.

 

I disagree. I am not a lawyer, but my reading about military tribunals tells me that there is a big difference in the way evidence can be presented. The discovery process results in most cases being thrown out on technicalities, and therein lies the difference between military tribunals and U.S. civilian courts.

With this in mind, the quote MacBeth used isn't damning AT ALL, and the "rule of law" is not threatened by these military tribunals.

 

We are all scared of the unknown.

Do yourself a favor. Read about military tribunals, and how they differ from our civilian courts. Educating yourself about this process will quell your hysteria considerably.

 

Boo-hoo. Waaaahh! What a rape of the foundations of the system of rule of law! Atrocious!

You guys think that a military tribunal is three guys with stars on their collars sitting in a dank cellar at a big table across from the beaten, tortured defendant, who rubber-stamp a guilty verdict followed by a trip in front of a firing squad.

All it is is a trial in a military court with three judges. All of the rules used are drawn from the same foundations that our civil courts draw theirs from, with all of the same relevant protections. The main difference is that the process is streamlined in that the judges don't have to listen to endless BS pleas from the defense which have no obvious basis in reality, unlike our civil courts. All of the evidence that would be heard in a civilian court will be heard, and - unlike in a civil court - those pieces which are obviously false or ridiculous will be thrown out on the first try, and not after two years of dispute.

And they won't get ten years' worth of appeals. Nor, BTW, will they be likely to get the death penalty.

If they are guilty, then they will be found guilty - just as they would in a civilian court - it just won't take 5 years to do it, and any sensitive evidence that could be used by our enemies to attack us will not be revealed to the public. And if they are innocent then they will be found innocent - just as they would in a civilian court - it just won't take 5 years to do it, and any sensitive evidence that could be used by our enemies to attack us will be neither revealed nor relevant.

Military tribunals are not your average kangaroo court. They are just as fair and thorough as our ideal of civil courts are, they are simply more efficient and more sensitive to sensitive issues than we are used to.

The Brits can just suck their thumbs on this one.

 

aren't military courts the opposite of civilian ones since the burden of proof is with the defense (ie guilty until proven innocent)? they're not even allowing these people to meet with their lawyers from my understanding.

 

They should be allowed to meet with their lawyers in due time, they will certainly be given enough time to prepare their defense. Now, if the military tries to prevent them from meeting with defense lawyers, then you guys are right - something stinks here. But I wouldn't worry...

The Pentagon will issue them some lawyers.

 

Outlaw, the defendents are innocent until proven guilty, beyond a reasonable doubt.

Treeman, I think, might be wrong about the 3 judges. I have read twice that there will be 7 judges.

 

3, 5, 7 - who cares. Tradition holds for three judges (hence the 'tri' in 'tribunal'), but it doesn't really matter. Instead of having 12 uninformed yahoos who were selected solely based upon their predisposed biases you've got a number of professional judges (these guys are not just any hand-picked generals, they are all students of law) to decide fate. I'll take that over a dozen yahoos who just want to leave - or worse yet, stay - any day.

 

In response to johnheath's message about "reasonable doubt" applying in military courts as well, I believe he's a bit mistaken. Here is a nice article which explains a few distinctions between civillian and military courts.

Personally, I think the greatest drawback to the military court is the relative lack of credibility compared to civillian courts.



USA: Legal experts question Sept. 11 military courts

Sue Pleming

Reuters English News Service©
Wednesday, November 14, 2001

WASHINGTON, Nov 14 (Reuters) - The use of special military courts to try foreigners accused in the Sept. 11 attacks may be a "quick fix" in bringing suspects to trial but will deny defendants many of the protections of U.S. criminal courts, said legal experts on Wednesday.

In a legal tool last used in World War Two, President George W. Bush signed an executive order on Tuesday declaring that foreigners arrested on terrorism charges could be tried in any place or time by military courts, which are often secret.
"What I fear is that the rest of the world will look at it and say these military courts are not courts of justice but courts of vengeance," said Irwin Schwartz, president of the National Association of Criminal Defense Lawyers.

"The trials will be a formality preceding execution," he added. Penalties under the order include death, which is opposed by many key U.S. allies.

Vice President Dick Cheney defended the president's order, telling a Chamber of Commerce meeting that foreigners who came into the United States illegally with the aim of killing thousands, such as on Sept. 11, were not lawful combatants.

"They don't deserve to be treated as a prisoner of war and they do not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process," said Cheney.

He said those tried in military courts would be given a fair trial, adding that there was legal precedence such as in World War Two when German saboteurs were tried by a military commission and in the case of those accused of assassinating Abraham Lincoln.

The order specified that anyone detained would be "treated humanely without any adverse distinction based on race, color, religion, gender, birth, wealth or any similar criteria, and afforded adequate food, water, shelter, clothing and medical treatment."

Senate Majority Leader Tom Daschle voiced "constitutional concerns" over Bush's order and said he wanted to take a look at all of the legal implications before judging its merits.

"I have some concerns for the constitutional protections that we have always afforded everybody," he told reporters.

PRACTICAL SOLUTION

Legal experts are divided over the use of a military court but all agree that they will lead to fewer protections for defendants tried in those tribunals.

Paul Williams, professor of law and international relations at American University, said a military court was probably the most practical solution for trying those behind the Sept. 11 attacks in which hijacked planes were rammed into landmark buildings, killing more than 4,500 people.

"It's a quick fix. Military tribunals are not the highest level of fairness or due process but I believe they will have sufficient due process," said Williams. "What President Bush is trying to do is avoid legal gridlock."

Yale law professor Ruth Wedgwood, who is currently at the Johns Hopkins School of Advanced International Studies in Washington, said one advantage of a military court would be to prevent key intelligence from being given to the
enemy.

"You are not disclosing to the adversary what you know," she said, adding this was particularly important when dealing with such a powerful enemy as Osama bin Laden and his al Qaeda network, the chief suspects for the Sept. 11
attacks.

Outlining how the military courts would work, Eugene Fidell, president of the National Institute of Military Justice, said they would consist of a panel chosen by Defense Secretary Donald Rumsfeld, probably with White House
approval.

"There is less in the cup," said Fidell, when describing the legal protections offered to defendants.

In a criminal court, the burden of proof must be beyond a reasonable doubt while Bush's executive order does not specify this, he said. In civil society, a jury's verdict must be unanimous, opposed to the two-thirds required by the military panel in Bush's order.

FEWER PROTECTIONS

In addition, the usual strict rules of evidence, including the exclusion of here-say, would not apply and evidence could be submitted if it was shown to have "probative value to a reasonable person."

There is also no provision for appeals and the only review may be by the president or the defense secretary.

"It is certain that these defendants will try to get into the federal district courts and how far they get remains to be seen," predicted Fidell.

Schwartz pointed out that previous terrorism trials, such as those involving people accused of bombing U.S. embassies in Africa, were held in New York and the accused were tried and convicted by civilian juries.

Several legal experts said an international court such as those used for war crimes committed in Rwanda and former Yugoslavia could be the ideal legal tool to deal with Sept. 11 cases but others said it would take too long to set up and that foreign judges could be subject to pressures and intimidation.

But Schwartz disagreed: "It is so much more credible and advances the rule of law so much more to have an international court," he said.

NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 10,000 direct members -- and 80 state and local affiliate organizations with another 28,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.

 

Vik, the author of your article did all that research and failed to find out the actual burden of proof used in these trials?

LOL, I wonder why?

hint- the burden of proof WILL be "beyond a reasonable doubt", but to write that in his article would make the US military tribunal seem a bit too fair.

 

johnheath,

Perhaps I should clarify. There is without question a lower burden of proof required for conviction in a military tribunal. See this Post article at http://www-tech.mit.edu/V121/N61/tribunals61.61w.html (or maybe look at the text of one of the supreme court decisions in In Re Quinn I believe, but I'm far from positive). There are also plenty of other articles and essays showing a reduced burden of proof.

Now the minimum requirement for a conviction in a civilian court is proof beyond a reasonable doubt (I'm sure you'll agree with me), and the requirements for conviction in a military tribunal are less stringent, thus it follows that the "reasonable doubt" measure does not hold in the military tribunal. Instead there is some standard that is decided upon either by the judges sitting on the bench or by the President that signs the executive order calling for the tribunal.

In regards to the "guilty until proven innocent" misconception, while it is true that innocence is still presumed in this military tribunal, there have been cases of US military tribunals presuming guilt. You should look at the first Dachau Military Tribunal towards the end of WWII. In that instance, suspected Nazi War Criminals were presumed guilty until proven innocent.

I'm not saying that these tribunals will presume guilt, I'm just saying that there is some precedent for that having happened. I realize that this is far from a Nazi Germany type situation, so I'm not too worried about that. What IS quite clear is that the rights of defendents will be encroached upon severely by this tribunal since, among other things, there is a far lesser burden of proof required by the government to convict.