I disagree on Mona Charen. In general terms, I don't consider her a legit columnist but a mere parrot, as most of her column points are unoriginal except for the passion she injects, and usually that passion is mean-spirited. But that's beside the point of this specific column, so I'll address that:
"If asked to choose between trying a terrorist and killing him outright on the battlefield, I'm for killing. And most of the administration probably agrees. Still, we must consider what to do with those who surrender, and President Bush has provided the answer: Try them in military tribunals."
The rules while in "the jungle" are undeniably looser and you'll get no argument from me about killing them in the jungle. It is the most efficient means.
Of those that surrender, I'm granting some credit here; I presume she speaks of the leadership and not the grunts, as most of the soldiers have eagerly sought to battle soldiers, not NYC civilians. As with any war, such soldiers are POWs who ultimately are released & repatriated, unless evidence exists of violence above and beyond simple military engagement, such as the mass slaying of unarmed people, or rape.
"Suicidal fervor" is a subjective term. Every soldier knowingly puts his or her life at risk entering battle, and brings some fervor to the fore. Those who choose to go kamikaze are few among many. One cannot weed them out by their words alone; otherwise, such a liberal interpretation could redefine Nathan Hale as being a suicidal threat. So how do we determine which are trash-talking and which would follow through on their threat?
We can't... unless there are witnesses or physical evidence to sustain a reasonable interpretation that the defendant was engaged in actual planning of some such deed. Even in a military tribunal.
In this war, the enemies have been Al Qaida and the Talibanis that have supported and defended Al Qaida. But no evidence has emerged to indicate that (a) the Taliban has attacked US civilians (exception: if Talibanis executed western reporters), or (b) the Talibanis had any advance knowledge that Al Qaida was planning to attack the WTC & Pentagon.
Again, most soldiers fighting us were Talibani or supporters of the Taliban. Certainly, the Talibani leadership should be held to account for harboring Al Qaida. It is clear from the intrafamily marriages of Omar & Bin-Laden that there is a strong likelihood they shared much information about each other's intents and purposes.
The common Talibani soldier - and remember that all soldiers can be fed disinformation - might seriously believe the WTC attacks were done by the CIA or the Jews.
Thus, my understanding of the proposed military tribunals is that they'd be used for:
-Al Qaida members & leadership
-some of the Talibani leadership
-soldiers committing atrocities beyond battle with opposing military forces
Now, certainly, there's reason to conclude these enemies would show us no mercy were they to win. And no-one (well, no-one with credibility) is suggesting we be merciful to them.
Saying they "stood to execute two US citizens for allegedly evangelizing Christianity" is a misstatement. While their laws made such an outcome permissible, nothing indicates that was planned. They could easily have killed the missionaries, shredded their remains and claimed our bombs took them out, if they intended that outcome. Their last word on the topic was to indicate their judges could not be sufficiently objective to judge them, due to their anger at the US bombing. And they moved them but ultimately left them behind, rather than kill them.
I say the law of the jungle is proper, in the jungle. Once removed from the jungle to a place where the thin veneer of civilization exists and is promoted as something better than war, the rules change... or else there is nothing civil about civilization.
Which leaves us these questions about whether tribunals suffice:
1) Are they legal or extra-legal? (A: they are legal)
2) Will the result be justice? (A: maybe)
3) Will they end terrorist attacks against US citizens? (A: no, but they probably will end attacks by some of these terrorists, because they'll be incarcerated or excuted.)
4) Are there alternatives? (A: yes. Kill them on the battlefield or utilize the regular court system.)
5) What are the perceived advantages to the tribunals? (A: they permit adjudication with less strict standards of evidence and without judicial or jury consensus, so convictions are easier to obtain.)
6) What are the perceived disadvantages? (A: there are many, and for most opponents to tribunals, these are where the differences of opinion exist. Debating almost all the other points is repetitious blather because little disagreement exists anywhere else).
The exception is that some opponents still argue the constitutionality of tribunals. My understanding of past executive actions and judicial rulings is that tribunals are legal.
But I wish proponents like Charen would stop parading reasons like "They bad" as if opponents disagree; it is a waste of column inches.... unless the motive is to suggest to fence-sitters that all opponents are too stupid or immoral to understand and condemn 'badness'... and I'd certainly not dismiss that possibility from the likes of Charen.
Returning to the crux, the following negatives exist by using tribunals, in my opinion:
1) Of utmost importance, they are unnecessary. There are means within existing law to protect the identity of jurors and to limit the exposure of undercover intelligence sources. There is no evidence to support the notion that jurors would be more sympathetic to the defendants than any military personnel; between the polls and the processes involved in jury selection, assembling a wholly non-sympathetic jury should be a piece of cake.
2) However, if any 'civil right' is to be abridged, I'd submit that simply excluding the right to a jury of one's peers is the only one to consider here. A judge can hear 'secret evidence' without compromising sources in a wartime situation especially.
3) A judge can also limit publicity, to prevent it from becoming 'Osama TV'. However, I'm not convinced this is necessary. The Nuremberg trials were televised and I don't recall negative effects emanating from that. Beyond preaching to the choir, I can't imagine any way such exposure would provide OBL & his ilk a single convert. In fact, were other 'irrelevant' issues to emanate, such as the bad things the US does or what the Quran requires Muslims to do, I'd welcome the chance to set the record straight for millions of the misguided. Bringing in reputable Muslim scholars to refute the OBL interpretations, for just one example, could go a long way towards enlightening the uninformed.
Of course, I doubt the courts would permit such broad latitude, but if they did, I think it would further damage the case of our opponents - and possibly persuade hundreds of thousands to avoid 'unholy wars' in the future - and thus should be welcomed. After all, many in the ranks of the OBL faithful are unschooled ignorants exposed only to one opinion arising from the madrassas, which are clearly propaganda machines.
4) Some countries will balk at extraditing defendants because of our tribunals or the possibility of death penalties. This is a very serious weakness to the tribunal plan. As well, since the #2 and #3 Al Qaida guys have been destroyed, and OBL is not likely to be captured by a country with such reservations, I'd even suggest saying we'll seek the death penalty only for OBL.
For one thing, it eliminates the nonsense that we are anti-Muslim; we are only anti-murderer. For another (and I speak as one who has friends working in prisons, top to bottom) I think life imprisonment and isolation to be harsher punishments than death.... and I want these beasts provided the harshest.
5) (And this one gets us back to this thread about foreign relations) Our nation was brutally, unlawfully, and unjustly assaulted and thousands of innocents were murdered. The guilty deserve the harshest of punishments.
In the course of our response, we have clearly demonstrated the following:
-- Woe to he who attacks us, because we are the serious stuff. You cannot defeat us, you cannot escape our response, and the false God of extremism has yet to appear to smite a single sky-ruling B52. In two months of war, you've killed just one armed American. Your effort is pathetic and the world laughs at your impotence.
-- You want suicide? Here. We'll eliminate ten thousand of you for every one that you kill. If you think God wants a war to eliminate nonbelievers, don't you think he'd recruit someone capable of a single victory? Do you seriously believe, based on your record of failure, that 100 million Muslims are gonna believe this is a way to prevail and grow? So far, you demonstrate by the killing ratio that 10,000 nonbelievers is all that'll die before 100 million Muslims die. Not counting the unarmed women and children you attack with impunity. Even a false God would not choose cowards and losers of such magnitude. You were chosen by a murderous thug and nothing awaits you after death except the gratitude of the living that you are gone.
--We have won the war against these terrorists. Though cells remain, their fate will be the same, as soon as they are uncovered by us or by their next cowardly act. We have also won the propaganda war. Even the 'Arabs' as the Afghanis call them, that joined the Taliban cause, recognize you as betrayers and quitters. Among those who hate Americans, most have learned that violence against us is foolish and ineffective and costly.
--Sure, we recognize there will always be a few who will attack us out of envy. The big guys in a bar are aware that small men will occasionally attack them because they need to prove their manhood to themselves. But the human race and any God above defines real manhood quite differently. There are greater victories and greater rewards in learning what that is and how to achieve it.
--And now that we've defeated you on the battlefield, there is one stage left: the courtroom. This is where you'll get to learn something that may yet astound you.
Our country grew in strength because we learned, by trial and error, how to permit human growth and the growth of civilization. Though we began with great intolerance of different faiths and ethnicities and genders, we wised up over time. We have grown tolerant. We have learned to give our people a voice in government. We have learned the value of providing well-rounded education to all who will learn. We have learned that providing more freedom permits greater opportunity to the broadest number of people.
In doing these things, our reputation has spread to the darkest corners of the planet. People with little or no opportunity elsewhere perk up their ears at the reports and within their hearts & minds, hope rises. From among them, the most motivated venture forth to our shores. Many have to suffer major ordeals or great sacrifices to accomplish this. They are survivors and they bring with them a courage and an optimism, above many who never make that journey.
Is it any real wonder that we grow stronger when our expanding population is drawn from so many courageous people with grand hopes and bright dreams? I'd argue that our tolerance and our freedom to pursue opportunity draws many of the best, brightest and strongest people in the world.
And one of the cornerstones of our freedoms is possibly the greatest system of legal justice ever devised. Oh sure, we're strong enough that we could railroad most anyone to a predetermined fate that suits our whims. But here, as elsewhere, we maintain the importance of freedom and justice.
The name "military tribunal", to citizens of nations under totalitarian rule, does not reassure. We can do better than that, even though I'm sure our military tribunals are not the kangaroo courts that some nations use. True, some reasonable modifications must be made, but every modification must meet the test of insuring the safety of participants and our nation while maintaining the integrity of our system of justice.
Thus, I propose a third way: a civilian/military wartime tribunal. The modifications and reasons are these:
(1) To avoid lawyers acting as conduits of information within terror organizations, we will have a third party monitor conversations. The people who monitor will not have access to the prosecutors or prosecution witnesses, nor to any judge or jury. Their purpose is not to aid the prosecution, but to prevent information reaching others in the promotion of future attacks. If, however, such information reveals a clear attempt to mastermind or engage in additional acts of terror, the information will be reviewed by an outside panel of 3 judges. If those judges find reasonable cause that such a threatening communication has been intercepted, they can pass it on to the prosecution to add to the evidence.
(2) Classified information, that can compromise the identity of intelligence agents, moles, informants, etc. must also take this circuitous route before being considered by the trial judge. The independent trio of judges must determine that the evidence requires it stay secret before it can be passed to the trial judge for consideration.
(3) The jury will be shrouded and their identities will remain secret from the public. Defense attorneys will also be restricted from knowing identities, and all questions posed during jury selection will be done in writing with typed replies given to the defense attorneys. The press will know their occupations, their genders, their religious affiliation if they have one, and their approximate age (in their twenties, thirties, forties, etc). During jury selection, any juror may be recused simply by indicating their fear of reprisal and requesting such exemption.
(4) Standards of evidence gathering will be relaxed for those gatherers who are not principally engaged in criminal justice. Thus, a prosecutor or detective must follow all the standard civilian courtroom rules necessary to protect a defendant's rights. But a soldier, for example, does not have to read Miranda rights before questioning a defendant or handle evidence in such scrupulous manner during wartime conditions, and such evidence can be ruled admissible.
(5) None of this 2/3rds to convict stuff, either. Consensus of the jury will still be required.
(6) The presiding judge will be military, but must also be a trained judge. I think this is necessary to permit the President to use the tribunal as Commander in Chief... using a civilian judge might cause an encroachment of the Executive on the Judicial branch of government.
7) With the exception of Bin Laden, or the reigning head of any terror organization, capital punishment will not be employed in fact. The judge and jury is free to mete out a death sentence to any. But if they do, the sentence will automatically be commuted to the following actual outcome:
(a) life imprisonment, without possibility of parole or pardon
(b) appeals will be permitted based on new evidence that might exonerate them
(c) their imprisonment will be in solitude. No access will be given to the press, their families, their friends. For their remaining lives, they will see only their jailers, prosecutors or one attorney (and that attorney can be changed only upon judicial approval or the retirement or death/incapacity of the original attorney).
(d) the location where the condemned spends their imprisonment will also be secret from the public. If that secret location is breached, they shall be moved to a new location at once.
By using an approach like this, or some reasonable facsimile, we can overcome extradition concerns. The design and modifications will come from a team of civilian and military judges and legal scholars, appointed by the President.
It is not the civil rights of defendants, but their human rights that such a plan is created to protect, as well as the status and reputation of the US as a defender and promoter of such rights.
As I noted, we have won the war against this specific group of terrorists (or nearly so). We have destroyed the myth that the Taliban rule had the broad acceptance of the Afghani people of any tribe, including the Pashtuns they are native to (based on the coverage of cheering civilians). We have also destroyed the myth of the invincibility of Afghanistan, which these terrorists had bet all their chips on. The claim by OBL or the Northern Alliance that they defeated the Russians and caused the USSR to collapse will always have to be viewed through the prism of reality, that US intelligence and weaponry was key to that victory, as this current conflict has made clear.
We have humiliated their military forces and their leadership, and among outsiders who once hailed OBL as a hero, he has been diminished to a cave skulker who led troops that could not perform as advertised, under the banner of a defeated religion that does ot emanate from the Quran.
Beyond the military and propaganda victories, the only remaining battle to be won is the foreign policy one. If we can handle the final stage of the courtroom with as scrupulous adherence to a just system as can be had without compromising safety and security, we can send the message that real justice does not flex to obtain easy convictions.
And I consider that to be important to the maintenance of our leadership in the larger arena of world affairs, in our pursuit of a freer and more democratic world, where human rights prevail. This is not a suicidal adherence to the Constitution for the sake of consistency. It is an adherence to the notion that we will not let terrorists so severely abridge our freedoms as to make them unrecognizable and irrelevant.
If we permit such a severe abridgment, after all else that we endured and worked through, then they won. |
