"But if Mohammed and his cronies are too big for the American system of justice, the system enshrined in the Constitution, if the rule of law can't handle them, well. It might not be that the terrorists win."It's worth a longer and more public response than a reply comment.
"But it's certain that the Americans lose."
Jeff, regardng your comments above, they are not "too big" for the Amercian system of justice but isn't the military justice system part of the American system? I would be interested to know why you think, if you do, that these war criminal enemy combatants who are not US Citizens are entitled to the full benefits of a Constitution intended to protect the rights of those who are citizens.
A military tribunal seems to have worked pretty well at Nuremburg and I suggest that those tried there along Tojo and the other Japanese war criminals got a fair shake and, in the end, exactly what they deserved in the way of punishment. I just don't see that as a loss for America.
The military tribunals that have been set up for dealing with the folks at Gitmo are part of the American system of justice in the very narrow sense that they were designed by the United States Government and purport to be about justice.
There is a military justice system, long-established and worthy of respect, that the military uses on its own. That system (courts martial) provides fewer protections for the criminally accused than the civilian criminal justice system, but considerably more than the military tribunals cooked up for the so-called "enemy combatants." (There are those who say courts martial are actually friendlier to criminal defendants than are civilian court criminal trials. I think they're mostly talking about the process as it happens in real life rather than in theory. In any event, that's a discussion for another day.)
The trials at Nuremburg were a test of how victors would respond to those who led the vanquished. And the tribunals were set up and run under developing international criminal law. They demonstrated an international commitment to the rule of law by the very idea that there were trials rather than summary executions.*
The tribunals at issue now are creatures not of international justice designed to demonstrate that even war criminals can be treated fairly under international standards SO THAT THE WORLD WOULD RESPECT THE RESULT but are, rather, a system designed to placate the demand that we do something that looks like a trial. It seems pretty clear that world opinion recognizes these tribunals as substandard.
And remember, that the whole point behind setting up these tribunals is that they allow use of evidence that would be inadmissible in the civilian courts because it's deemed unreliable. That evidence includes hearsay, coerced confessions, and secret evidence.
All of that is almost beside the point.
The real point of the comment by OldFolks65 (which doesn't seem so old from where I sit, but I digress) seems to be this:
I would be interested to know why you think, if you do, that these war criminal enemy combatants who are not US Citizens are entitled to the full benefits of a Constitution intended to protect the rights of those who are citizens.The answer has a couple of parts.
First, "these war criminal enemy combatants" either are or are not those things. That's what the trials are supposed to determine - and the government is supposed to be able to prove. If you begin by saying that these guilty guys don't deserve the benefits of our criminal justice system because they're guilty of what we're charging them with, then no system you cook up will look like anything but a kangaroo court.
But if we don't know that they are what we accuse them of being, then we're in a different world. We can't deny them the fair trial because of what they did. Instead, we're saying that people who are charged with really awful things don't have the same rights to defend themselves as people who are charged with minor offenses.
Why give the accused killer a fair trial? Let's save fair trials for people who are accused of petty theft. Or maybe we should just give fair trials to innocent people. But how do we tell?
The answer is that the Constitution doesn't work that way. Nor does it protect only American C
citizens. Here's the Sixth Amendment.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Notice how it doesn't say anything about citizenship. Rather, it provides some basic guidelines for "all criminal prosecutions" and protects "the accused" - whoever that might be.
Or try the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Maybe that's closer. Maybe you could argue that "the people" refers only to citizens. I don't think so, though. The framers knew the word "citizen." They used it eight times in the Constitution before amendments. Five of those eight instances are in this paragraph from Article III, the Article dealing with the federal courts.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.If the framers had wanted to limit the rights of non-citizens in the courts, they were perfectly capable of doing that. They chose not to.
We have declared, over the centuries, that we believe in the rule of law. If it becomes selective, it's not the rule of law, it's the rule of chance and power. That's not who we want to be, I don't think. It's certainly not who I want to be.
*The story is that Churchill wanted some summary executions. Stalin favored killing 50-100,000. Roosevelt said (presumably ironically) that perhaps 49,000 would be enough. Stalin, with some support from Churchill, thought show trials. A good idea. Eventually, Truman convinced both to hold real trials, and the Nuremburg tribunals were then created by a multinational consensus and applying developing standards and rules of international criminal law. That's a serious oversimplification, and there's some dispute in the literature about just how this all happened. Wikipedia doesn't do a bad job on this.