RoR: Forum

I usually agree with Thomas Sowell, especially on economic issues, but we sure part company on this topic.

Take this quote that leads off the article:

"In the string of amazing decisions made during the first year of the Obama administration, nothing seems more like sheer insanity than the decision to try foreign terrorists, who have committed acts of war against the United States, in federal court, as if they were American citizens accused of crimes."

So much for the presumption of innocence of the accused. We know that all these incarcerated people are "terrorists, who have committed acts of war against the United States" because someone in the federal government says so? All of them? Without any legal proceeding to uncover the facts behind the allegations that led to their incarceration?

Should any Objectivist trust the federal government enough that they would allow people to be incarcerated for the rest of their lives without an adversarial legal proceeding contesting this detention and trying to poke holes in the government's case?

Would you feel comfortable if someone you personally knew and liked was whisked away like this? Would you say, "well, if the government says my friend is guilty, they must be." What if that someone was an outspoken critic of the Obama administration? Would it cross your mind that maybe this was an abuse of power?

Post 1

Tuesday, November 17, 2009 - 2:20pm

Jim,

The argument is NOT about pronouncing judgment without a trial. It is about a military tribunal held in Gitmo versus a civilian, criminal trial in New York.

The risks are clear and obvious - what justifies putting civilians into the cross-hairs of more terrorist attacks? The downside is also clear and obvious - an OJ moment where they walk out, or we engage in a kangaroo court where we throw out criminal procedure to suit political expediency. Those are the inescapable consequences, but, where are the advantages to changing the venue to New York? Where are the advantages to using criminal court versus military tribunal? To salve Obama's ego? A piece of meat thrown to the far left loons whose primary religion is to attack Bush?

I agree with the importance of maintaining probable cause and habeas corpus as checks on the power of the government. But for military actions taken on foreign soil there is nothing wrong with the detainees having their rights determined by a military tribunal. (And, before you argue that these determinations weren't or aren't be done.... that is not the question at hand - the question is what in world justifies the damages and the dangers of bringing this group to NY and either throwing out justice or due process.)

I can only believe that the far left hungers to humiliate Bush/Cheney and to rub the conservative's collective noses in the dirt - and for no particular gain, and despite the costs.

Post 2

Tuesday, November 17, 2009 - 3:18pm

Liberals fondly look upon WW2 as the "good war", the "moral war". Yet they seem to have been perfectly fine with the good war ending in the military tribunal of Nazi war criminals, that lead to the execution of these criminals. For liberals, they arbitrarily pronounce WW2 as an acceptable context for military tribunals, yet similar contexts where a war is waged and war criminals are picked up on foreign battlefields, such as Afghanistan or Iraq, it's now unacceptable to use the very same judicial procedures used against Nazis. Why? Well because this is Bush's war, and we don't like 'em very much cause he's stupid.

Post 3

Tuesday, November 17, 2009 - 3:38pm

Steve -- You have a good point about holding trials in New York. I don't understand the political motivation about picking that venue over anywhere else. The question is, will the jurors be drawn from the New York City area? And will that bias the jury toward acquittal, since New York is very liberal, or toward conviction, because 9/11 happened there and people would want revenge?

As for your other points, though, I don't trust a secret military tribunal in Gitmo to give defendants a fair chance to try to assert their case that they are not guilty.

Would you trust your own life to a military tribunal, rather than a civilian court?

The question is, are you assuming everyone in Gitmo is guilty, and you are thus trying to find out a way to ensure the outcome results in everyone staying incarcerated? Or are you, like me, in favor of giving everyone there the presumption of innocence, and in favor of forcing the government to prove their case that they did indeed grab bad guys who need to stay locked up, rather than giving the government a new power that can easily morph into locking up dissidents?

I do not trust the government or politicians at all, and I fear mission creep, which is why I want to give even the most reprehensible people their day in court, because otherwise a vocal dissident like me could wind up there without any recourse.

Post 4

Tuesday, November 17, 2009 - 3:41pm

It's called dropping context. It's done willfully. The anarchist knows that these are not private citizens on American soil arrested secretly at night by some gestapo and held incommunicado without cause or review. He knows that these are war criminals, unlawful combatants, seized during war, not guaranteed the protections of our Constitution, which itself is not a suicide pack. He knows that according to the Geneva convention they were subject to summary execution on the battlefield. If he didn't know this he'd be an ignorant fool. But he does know this, which makes him something else indeed.

Post 5

Tuesday, November 17, 2009 - 4:15pm

Jim:

I do not trust the government or politicians at all, and I fear mission creep, which is why I want to give even the most reprehensible people their day in court...

So you don't trust the government at all, but you'd paradoxically trust them to try accused terrorists in a federal court in NYC?

The fact is a military tribunal is a court proceeding. To act as if this system has no adversarial legal proceedings between defendant and accuser is simply false. A military tribunal is a system of due process.

Post 6

Tuesday, November 17, 2009 - 6:26pm

If the protections guaranteed by our Constitution are derived from the principle of human rights, a principle that respects no political borders, then a war criminal is due for the same treatment we expect when accused of a crime.

'Military justice' is a concept that stinks of fish.
(Edited by Doug Fischer on 11/17, 6:28pm)

Post 7

Tuesday, November 17, 2009 - 6:47pm

The anarchist knows that these are not private citizens on American soil arrested secretly at night by some gestapo and held incommunicado without cause or review. He knows that these are war criminals, unlawful combatants, seized during war, not guaranteed the protections of our Constitution, which itself is not a suicide pack.

An ad hominem attack, coupled with at least two strawman arguments:

No one is arguing that anyone detained in Gitmo was captured on American soil.

You're the one who used the word "gestapo", not me. You Godwinned the thread

As to your other assertions:

Are you asserting that NO ONE -- not one single person -- at Gitmo is a private citizen? Because I have read allegations that several of them are in fact just that, turned over by rivals in tribal disputes and whatnot.

Are you asserting that no one at Gitmo was arrested secretly?

Are you asserting that no one at Gitmo was arrested at night?

Are you asserting that no one at Gitmo is being "held incommunicado without cause or review"?

Are you asserting that everyone at Gitmo is a "war criminal"?

Are you asserting that everyone at Gitmo was "seized during war"?

How are you so certain that all of these assertions are true for every person held there, without exception, in the face of numerous specific denials of this by the lawyers for them?

Are you certain that the people who were held at Gitmo for a while, and then released, were all of these things? Are you asserting that the federal government knowingly released all these dangerous people, every one of them a dangerous war criminal?

Or maybe, just maybe, the feds screwed up in some of these cases, released some of the non-guilty detainees, and are holding still more people who are not guilty, and that a judicial proceeding in open court would establish that and lead to their release?

Post 8

Tuesday, November 17, 2009 - 6:54pm

So every time a predator drone kills a terrorist cell in the Middle East, does that kind of justice stink too? In that instance there is no trial, and the military strikes without a court judgment and without a court ordered punishment. The fact is military tribunals worked with great success at Nuremberg, it was a system of due process with protections given to the accused. For some reason no one seems to object to that instance of military justice.

Post 9

Tuesday, November 17, 2009 - 6:57pm

You are leaving out the answer to the question "by whom?" Doug.

The Constitution is not a statement of physical law. (If it were, then on what grounds would it determine that one must be 35 to be president, or that there should be two senators, and not 3.145 per state?) The Constitution is a document composed by Americans to govern and protect Americans. It is not a suicide pact. It is not a list of duties owed to people who lie outside its protections, and who oppose the principles upon which it stands.

Moral principles are universal. Political mechanisms are finite. Finite in space, in time, and in moral scope. What do you think the concept citizen means? Do you imagine that American soldiers are dying and American taxpayers are paying so that the political rights of American citizens shall be applied to and enforced for our enemies at our cost? Do you know what the word altruism means? The U.S. government is our agent, meant to protect our rights, not some magical fairy godmother to the world.

Your statement that "military justice stinks" suggests a broad and what should be to you an embarrassing ignorance of world and U.S. history. I am not a student of military history except in the broadest sense. Perhaps someone else here can recommend some study material for you.

Post 10

Wednesday, November 18, 2009 - 1:42am

Jim,

As has been pointed out, a military tribunal IS a court. And it is not secret. And all of these options are government (usually the head prosecutor for a jurisdiction is elected - a politician), some judges are appointed (by politicians), others are elected. I don't know why you treat military as non-government and therefore, by your statements, non-trustworthy, but federal court is government but somehow trustworthy. You seem very confused on this whole issue.

I agree with giving the most reprehensible people a fair trial - for the same reason - it protects ME from government. Same reason we let Nazi's enjoy the very same freedom of speech - not for them, but for us. But you put a trust in Eric Holder and a NYC federal court system while looking on a military tribunal as if it were corrupt or unfair by its nature. I see no reason for that position.

You asked me if I would trust my own life to a military tribunal rather than a 'civilian' court... It would depend upon the circumstances - but yes. I've know a number of career military - some in my own family. I'd say that there exists, on average, a higher respect for truth and honor in the military subculture than the culture at large.

You asked if I'm assuming everyone in Gitmo is guilty so that I can try to find a way to ensure the outcome results in everyone staying incarcerated. That's kind of insulting - do you have an anti-military bias or do you just think poorly of me? I said in my post above that what I favor is probable cause and habeas corpus - two princples that can be applied with a military tribunal.

Doug,

The principles the constitution is founded upon are indeed moral principles univeral to all humans, but the constituion itself and all of the laws of the land under it observe geographical jurisdiction. And further, all laws observe still further restrictions - contexts within which they apply. For the most part children are not tried in criminal court, divorce hearings are not conducted in probate court, small claims court does not hear appellate issues, etc.

Military justice is something you should more about before making such a fishy statement. It is the constitution that authorized the creation of a system of military law. It is the President, as commander in chief, who authorized the implementation of the Uniform Code of Military Justice which was created by congress. The current military commission system was set up to meet supreme court objections to previous systems for trying captured enemies. There have been Gitmo detainees that were released following hearings, and another sent to Australia to serve a 9 month sentence. I'm not going to argue in favor of everything going on at Gitmo, but the Obama/Holder NY proposal is just plain irrational.

Post 11

Wednesday, November 18, 2009 - 6:17am

Just moving the prisoners from Gitmo into the US is irrational. Taking these particular prisoners to NY represents utter and incredible stupidity.

I am concerned that there may be prisoners in Gitmo that have been railroaded (maybe just pissed off some tribal chief) - there are failures in almost all criminal systems. However, I am not even remotely convinced that they should be treated as anything other than 'prisoners of war'. They are not 'citizens gone bad'. Those among them being brought to trial are the ones against whom the strongest cases have been established. This belongs in a military court, and it belongs (the trial) in Gitmo.

Whatever world opinion may be, opinions have already been divided over Gitmo. It stated there. It should be finished there. It is better that anyone who truly opposes American action in these cases, associates the issues with Gitmo, and a military tribunal, rather than with anything else done within the American court system.

jt

Post 12

Wednesday, November 18, 2009 - 4:35pm

John and Steve, I will respond to you soon.

To Ted:

Your first and third paragraphs suggest to me that you haven't understood your own stance, and that you want a justice system that doesn't recognize... justice. Your question, by whom?, implies I'm asking an effort of Americans that you are not. Aren't Americans paying for the military courts and trying war criminals now?

By naming the individual prisoners "our enemies" you have declared their guilt before proven in trial. Both police officers and soldiers have two legitimate options when crimes are committed: arrest for trial and kill immediate threats to life.

Is that altruistic?

Remember that we pay into a justice system that pays for trials of guilty criminals (ie our enemies who oppose constitutional principles).

Is that altruistic?

I suppose you'd say the difference is citizenship. The last line found on http://importanceofphilosophy.com/Politics_FinancingAGovernment.html says "Citizenship status could never be allowed to determine the availability of government protection."

Sure, this is said in the context of country residents who choose not to be citizens. But if we have invaded a country and taken prisoners, it seems like our jurisdiction has momentarily expanded.

Post 13

Wednesday, November 18, 2009 - 5:13pm

John,

You listed 3 elements: trial, court judgment, court ordered punishment.

If a police officer shot bullets into a persons house, we would expect at least 2/3 of the above conditions be met, unless a person was in immediate danger.

I suspect you'll counter that a war is a state of emergency, that lives are in constant danger and time is a factor. I'll agree that war decisions often have to be made on little information. But look at your example. You assume someone correctly identified them as terrorists before the missile was shot. How are we to know if the person was using good judgment except through legal procedure?

We cannot have a war of whim.

Post 14

Wednesday, November 18, 2009 - 5:23pm

Steve,

I'll have to consider your thoughts. I found this particularly interesting: "The current military commission system was set up to meet supreme court objections to previous systems for trying captured enemies." I'm glad to hear this.

Post 15

Wednesday, November 18, 2009 - 8:03pm