A handful of people who've been held at Guantanamo Bay, Cuba - will be put on trial in New York City in the coming months. Many on the right think it's both dangerous and a waste of time to do so. When pinned into a corner by our own earnest DogGone that despite the realities that these defendants weren't:
1. Going to be released into the general public if not convicted
2. WERE being treated within agreed upon law
3. WOULD avoid unneccessary and costly appeals from dubious military court decisions
their argument in the end basically came down to the fact that it was easier. While I'll defer to DG on whether easier is the course of action a nation of ethics and laws should take, I want to address one other point the conservatives have often made to me, namely, that this is a "rough world" and we "just don't get it, so stand aside and let the adults deal with the problems'.
To them, dealing with such these defendants meant simply jailing them without trial, in perpetuity, without access to family, or anything else - until the Bush Administration was FORCED by law and conservative courts to actually PROVE the people should be held any longer. They were ultimately forced to release, for a gross lack of evidence, more than 2/3rds of those they'd held for FIVE years and more. Then they wanted military tribunals - kangaroo courts where evidence gained by torture is legal, and where the "judges" careers may sit in jeopardy should they decide a case in a way other than how the military brass prefers.
Instead, this administration has chosen to try these people according to treaties we've signed, and principals we say we embrace - where evidence can't have been forced passed people's lips through excruciating pain administered over months of neglect and mistreatment. In fact, just to be clear, that mistreatment wasn't the final step in an interogation path, a final last resort, it was in fact the FIRST resort of these "rough" men. It was a way the willingly embraced - of course vicariously - as they didn't actually have to get their hands dirty. Nevertheless, it was the method they preferred, and preferred any statement so gathered should be used.
Those who claim that liberals or 'others' don't see the nature of the fight are in fact, both underestimating those 'others' and over-estimating their own position.
The underestimation comes from the fact that it is such 'chicken littles' who think they are the only ones who understand the quality of our enemy. They think they are like Colonel Nathan Jessep, the 'final thin line' between the cowed, and fat and happy American civilians, and the dirty, evil enemy. They fail to grasp that Jessep's speech was a satire (and intentionally so) about the psuedo-patriotism of those sworn to defend our liberties who are then willing to sacrifice them for what they claim is the preseveration of those liberties, but like Jessep, instead are most often doing so for their own personal ego or sanctimony, or worse, self-preservation of position.
Further, they fail to understand that most people can easily envision the kind of implacability with which people like Bin Laden approach warfare - we all understand just fine thank you very much (you condescending jerk) that Bin Laden is 'no holds barred' warfare, but since when or why do you think, given that WT Sherman already made plain the concept of 'Total War', that we can't understand that people will make war upon civilians in ugly and brutal ways? Nathan Jessep was 'keeping us safe' from a bunch of Cubans - not exactly the most aggressive of people, but what exactly did Jessep, or more 'reality based' terror 'experts' think we didn't understand about our enemy? It is the height of self-delusion to think you are the ONLY one who can imagine evil - each of us owns enough in our hearts to conceive of the evil men can do.
Which brings us to the over-estimation side of the ledger. When we act callously and recklessly, saying in effect that might makes right and law finishes a distant second to necessity, we are taking the most purile of courses - we are effectively giving in to our own secret heart of evil, and simply seeking a pound of flesh, and the cathartic joy of domination of our foes. The problem is that, while that feels good, it leads to long-term conflict, and a never ending cycle of violence. History is repleat with conflicts which have lingered for decades or even centuries where one side was dominant but abusive, and the other side was dominated but hardly submissive. Only thru just resolution do these kinds of conflicts normally or really EVER come to an end.
And then there is this - it is our commitment to law and civilized conduct of war which distinguishes us from what we say is 'evil' - how are we different from that which we oppose, how do we provide that 'shining city on the hill' example for that matter, if we abandon our laws whenever following them becomes a little bit hard? We, in effect, turn into (for the rest of the world) something little different than Bin Laden - a dangerous, and powerful nation which will not adhere to law nor live up to promises made. Our reputation rests not on our conduct in peacetime, but our ethical fortitude in times of trial - when we can keep our heads about us while all others are losing thiers - we show ourselves to be the better 'men' - when we simply succumb to that which is convenient - we say that we have no concern for the future treatment of our soldiers. For when we embrace the convenient and provide that as an example, we say that it is both 'right' and 'lawful' for the fate of our own soldiers to also simply be decided upon whatever is convenient - and there is no law, no standard, by which we will have any right to judge any mistreatment.
I listened this morning to my Priest who reminded me -
"If you seek peace, seek to be last
If you seek humility, seek to be last
If you seek love, seek to be last
If you seek Christ, seek to be last"
In no way is seeking to do what is right supposed to be easy, and in no way is seeking peace done by succumbing to our desire for vengence. Nor is giving thoughts and voice (and action) to our thoughts that our enemy would not treat us so well, seeking to be last.
Excellent and well thought out. Well done!
ReplyDeleteThere have been instances where JAG personnel have protested the legitimacy of these proceedings, refusing to participate in them, and were reassigned.
ReplyDeleteSheesh, when the military personnel whose area of expertise turn their backs on these proceedings, how valid are they?
Those who have favored this position mean well, their intentions are good. Where I have a problem is their notion they have some greater love of the Constitution, and the beliefs of our founding fathers, when they are too easily willing to set aside writ of habeus corpus, our conventions barring torture which relates directly to the right against self-incrimination, a willingness to resort to ex post facto laws which would set up retroactive laws to the detriminet of defendants, or to set aside any other due process and legal protection of our rights. THAT to me is un-American. We do not preserve our core beliefs by jettisoning them.
The second sentence of the Declaration states:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
ALL men are created equal....with unalienable Rights.
Nowhere in this document, or in our Constitution, or in our legal procedures and precedent, does it allow for separate, lesser standards of justice for individuals who are not part of a recognized military and who commit crimes against civilians.
I don't believe they mean well, I believe they mean to bring a swift end to something they dislike without worrying about whether the proof exists to warrant it.
ReplyDeleteYet, I agree with the underlying point, our liberties were not envisioned to stop at our borders or citizenship status. Moreover, that "limit" (i.e. that the conservatives would NEVER do these kinds of things to actual US Citizens) also proved out to be false. They were plenty fine with jailing Jose Padilla and Hamdan (both US Citizens) - and subjecting them to mockery legal proceedings when they were finally forced to actually put them on trial - mockeries which the SCOTUS stopped fortunatly.
The folks who advocate for this kind of craven conduct neither grasp nor care about our liberties - at least not enough to stand up for them in tough times - in truth, real-life counterparts to people like Jessep are doing exactly the OPPOSITE of what they say they are doing. They are NOT defending liberty, no, instead they are using false patriotism to usurp it.
The two points I would make is that throughout history we have tried these exact kinds of criminals in military tribunals. 8 German spies caught in New Jersey in WWII were tried in a military tribunal, the people who assisted Benedict Arnold way back in the revolutionary war were tried in a field court by military officers, the Nuremburg trials (yes I know that was a bit different) were military tribunals. The constitution gives congress the power to set up the structure of all the courts other than the supreme court. The military tribunals were set up by congress, and then set up a second time after the supreme court told them of some things that had to change. The other issue I have with this is that the guy that planned 9/11 freely admitted that he did it, the part that took waterboarding was getting the details of how and what future plans were but he freely admitted to the crime he is charged with. In one of the tribunals that is game, set, match but in a civilian court, well you don't normally give pows miranda rights or lawyers. So now to change the rules 8 yrs into the game what evidence is admissable? He wasn't read his rights but that was not required at the time so do you let his confession stand? Even if they throw out the parts gathered by waterboarding they could convict him but not if they toss everything he said since he was caught. Also Obama and Holder have already said he will be convicted and get the death penalty, any regular trial that would be an appeal based on juror predjudice and his defense could already make that point with the trial being held 4 miles from where the crime happened. Also what do you do if the government has evidence they got from our spies, people whose lives will be in danger if Al Queda even knows they exist? Once he is in a civilian court he has the right to see that evidence and the source of it. I just don't see anything good that can come of this. In order to convict him in a civilian court we will have to ignore a lot of the usual rules which is a far larger mockery of our courts than the military tribunals. If we let him go we might very well be the first country in history to catch a man who planned the deaths of 3000 civilians and just let him go.
ReplyDeleteTTuck,
ReplyDeleteI am aware of the German spies tried under military tribunals, but there are distinct differences here.
First, there was NO question the German military members were operating on behalf of their government, but doing so illegally (as non-uniformed spies), as such, they were rightly military prisoners, subject to military law.
Second, the GC's didn't exist at the time, subsequently, there was a nebulousity to the question of how to treat them. This rather famouns case resulted (iirc) in the even more famous phrase that our liberties are not a suicide pact. Subsequently, and in part as a result, the Geneva Conventions have sought to detail how to treat exactly such prisoners, and how to treat those who do not fall into those categories.
Hamdan and Padilla were rightly (for example) remanded to civilian court. Other than some training, it is unreasonable to assert they were acting as spies for a foriegn sovereign state OR acting as ununiformed fighters for a foriegn contingent force (like the Lincoln Brigade). No, they were instead acting as criminals and were intent on terrorism. Like the members of the Symbionese Liberation Army and the Weathermen, and for that mattter Timothy McVeigh, the courts proved wholly adequate to deal with their crimes.
In this case, these aren't US Citizens, but allowing the rather 'relaxed' rules of a military tribunal to be the method - and that only after fighting tooth and nail to avoid ANY trial - is to allow evidence gained under torture -and that, no matter how you slice it, is wrong.
We have to set an example for the world, not succumb to the world's baser instincts - we have to show moderate Muslims that we are good to our word, so that they can delegitimize the message of the extremists, but mostly, we have to live up to our ideals so that our children (and ourselves) can hold our head up high - for in the end, it is to our ownselves to whom we must be true.
If we are unable, despite his own admission, presumably freely given, to convict Al Zarwahiri, then the object lesson is not to torture, rather than to change the rules of admissability or to change the venue to side-step tricky/vexing legal questions/problems raised by our own conduct. I don't think any of these folks will ever see daylight again - but it should be because we did our jobs 99% right, rather than 50% right.
tt, if I might make a suggestion, I think you may have found your next topic about which to write here.
ReplyDeleteFair warning, with a little help from Pen and ToE, I just defended the decision to try this in civilian courts on another blog, including researching the Geneva conventions applicable provisions, so I've alrady done the homework and still have it readily available.
But I think having pro and con viewpoints would be an excellent dimension for Penigma, and I do encourage you to consider it.
That said..........let me begin by taking apart your examples.
Benedict Arnold preceded the Geneva Conventions and the existence of the US,considerably. The protocols under which we operate have substantially evolved since that time, further, while a revolutionary army and not yet a nation state, the US was an organized and at least partially uniformed formal force. If you had made an observation about the British and say, 'Swamp Fox' guerilla fighter Francis Marion, you would be closer on target. (nostalgia/trivia points for anyone who is now stuck with the swamp fox theme tune from Disney's anthology series running through their heads "swamp fox swamp fox tail on his hat, nobody knows where the swamp fox's at...").
As to you spies analogy, there are very different definitions and provisions for them, and again, preceded formal adoption of the Geneva Conventions in 1949.
The Geneva Conventions dealing with POW's were ratified in adopted in 1929, (the 3rd Geneva Convention) and the 4th Geneva Convention was adopted in 1949 after the horrors of WWII, and it dealt with (among other things) the treatment of civilians during time of war.
ReplyDeleteContrary to what the Bush administration would have liked to think the persons in question here at no time qualified as Prisoners of War under the 3rd Geneva Convention. The actions of which they are accused took place not on a battlefield in Iraq or Afghanistan, but in downtown New York. I can't see any scenario under which they can be seen to be subject to a military tribunal when they are accused of an act of terrorism that occurred on US Soil.
US District Courts deal with sensitive national security matters all the time, and have procedures in place to deal with it. These include limited closing of the courtrooms and a requirement that counsel may see but not copy documents, etc. There isn't any reason that has been promulgated by any of the George Bush supporters which would convince me to date that the charges against these people can't be tried successfully in civilian court.
I might note that the other day that one of the defendants' (I forget who at the moment), lawyer said that he intended to plead not guilty so that he could explain the reasons behind his action in court. While I agree we don't need a grandstanding event, the rules of criminal procedure will generally deny him the opportunity to grandstand, especially if its clear that is all he is doing.
The paragraph beginning with "And then there is this" is right on the money.
ReplyDeleteThis whole damn posting is right on the money.
I wonder how many of those people who suggest we "just don't get" this "rough world" have actually lived and worked abroad for years at a time (and not with other Americans, which naturally would work to insulate viewpoints, given the understandable cultural ubiquity it would propagate).
I have. Have they?
(...Crickets...)
That's what I thought.
I would suggest that they are the ones who don't get it. (And I did not grow up privileged, so they can cut the crap about "elitism" right now.)
They would disagree with me. That's fair enough. But how do they prove their point?
(...Crickets...)
That's what I thought.
Yes, we need to stand firmly against al Qaeda, etc. Yes, we need a very strong military. And, yes, we need to live up to our ideals.
We need to do all three consistently.
I have met a lot of other folks who have also lived and worked abroad for years at a time, and (strangely...) their opinions are often much like mine.
That might be because this isn't a conservative or liberal viewpoint. Not really. It's just the way things are to a lot of people who are proud Americans and who through experience recognize the enormous long-term pitfalls of the #1 world power speaking out of both sides of its mouth.
We Americans are better than that, folks!
Thanks Hass :), as usual, we appear to see things similarly.
ReplyDeleteIn one respect, though, I do not.
I no longer see any need or reason for the US to continue having a massive military force. We pay an enormous amount per soldier ($1M per soldier deployed). We don't need a military with 43 brigades or with 11-12 carriers. We simply don't. We also, whether we keep 43 brigades or not, need to get our support cost into something like a realy picture. In 1992-1994, we decided to privatize logistical support - supposedly because it would save us money. I promise you it doesn't take $1M to support troops (per troop) in the field if privates and sergeants are the ones doing the cooking, driving the trucsk, etc.. even with attritiional loss to logistical delivery systems.
We signed this because, tada, then SecDef Dick Cheney authored/sponsored a report that said we'd save money, while of course then Dicky left the WH in 1993 and headed, tada, Haliburton who, tada, got the contracts for logistical support.
Anyway, it's outrageously costly, and we should take it back 'in house' - but more, we simply don't need a force anything like this size. 4-5 carrier groups and 4-5 divisions are more than enough to handle the low-intensity conflicts we OUGHT to be fighting if we need to fight. Invading Afghanistan was the right thing to do, but staying wasn't.
Hass, I did spend 4 months in Europe during college in 1979. If you recall this was during the Iranian hostage crisis. Attitudes were kind of strange, the Greeks focused on the fact we were from Dallas so obviously knew something about who shot Kennedy. The Germans however consistantly asked us one thing when we talked to them on trains or in a beer hall, "how are you supposed to protect us from the soviets when you can't protect your own embassy from a third world county?" They also asked other things we had no answer for like why did the marines lay down their arms and let the "students" in? and when are your special forces going to go show the Iranians what for?
ReplyDeleteTimes have changed but the point is the Germans depended on our strength and we were busy making a rather impressive show of weakness.