If Only There Were Some Kind of Special Court for That
Yesterday I was looking in my inbox at a statement from Joe Lieberman on the idea of trying KSM in a civilian court in New York, and I found myself surprisingly sympathetic to his first sentence: “The terrorists who planned, participated in, and aided the September 11, 2001 attacks are war criminals, not common criminals.” Then, of course, Lieberman winds up veering in the direction of saying that we need to try KSM in some special kangaroo court military commission.
But really if the United States were willing to some day come to its senses and join the International Criminal Court it seems to me that this would be a good venue in which to prosecute major international terrorists. Barring that, I think a regular criminal court will do. But part of working toward a long-term solution to the issue of safe havens ought to be a formal process by which an individual can be declared an international outlaw who all governments have a responsibility to apprehend and hand over for trial to an international court.
31 Responses to “If Only There Were Some Kind of Special Court for That”
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November 14th, 2009 at 8:40 am
Lined up and shot like the Wehrmacht disguised soldiers were in the Battle of the Bulge. Terrorists, like pirates, are a scourge on humanity and be shot on sight.
Just openin’ the floodgates of bleedin’ hearts!
November 14th, 2009 at 8:48 am
“a formal process by which an individual can be declared an international outlaw who all governments have a responsibility to apprehend and hand over for trial to an international court.”
yes, there should be such a process.
and yes, it should be applied to joe lieberman.
though not until they’ve already taken away dick cheney, george bush, rumsfeld, and the rest of the war criminals who cost this country 5 trillion dollars and sullied its good name.
November 14th, 2009 at 8:49 am
Right, that’s the court that – were we part of it – would have demanded the heads of various CIA and military people over the past few years. And, were a Republican in office now, carrying out the level of Predator Drone attacks on the Pak/Afghan border that Obama is, the President would be in their crosshairs as well.
There’s two ways to go on this:
– declare such people to be prisoners of war, and, since there’s no place for them to go, let them rot
– declare them to be illegal enemy combatants, and try them in military courts
The problem with civil courts isn’t the “target risk” for NY; it’s the fact that these people were not captured by police in a civil situation; they were taken on battlefields and/or via intelligence operations, using rules of evidence that differ a lot from those used in civil procedures. That means that much (maybe all) of the evidence against them is inadmissable or unusable in a civil court.
This is a bit is silly political theater on the part of the Obama administration, and it won’t end well once the defence lawyers get done punching holes in whatever criminal case they try to bring. This simply isn’t a criminal matter; it’s a military one, and it should be dealt with in that realm, under those rules.
People captured within the US under normal rules of evidence by local police or the FBI? Sure, try them like anybody else. People captured on battlefields or via intelligence operations? Not so much.
November 14th, 2009 at 9:16 am
The ICC doesn’t have the possibility of a death sentence, so it’s pretty much a no-go for KSM.
November 14th, 2009 at 9:23 am
I know you’re speaking abstractly, but in fact the Treaty of Rome (ICC) didn’t enter into force until 2002, which means the September 11th, 2001 attacks antedated the ICC’s jurisdiction. This strikes me as the perfect justification for trying the suspects in an ad hoc international tribunal that the US could organize to its satisfaction, as we have done before. Nonetheless, many countries have effectively dealt with terrorism through their own domestic judicial system; I see no reason why the US should not be able to do so, too.
November 14th, 2009 at 9:23 am
What TW said. A hefty portion of the Great American Public and media would go ape shit over the idea of life for KSM, although trading those convicted in Italy for KSM appeals; would send a message, heh, heh.
November 14th, 2009 at 9:30 am
declare such people to be prisoners of war, and, since there’s no place for them to go, let them rot
That would be patently illegal and against all reasonable interpretations of the Geneva Conventions. If KSM is to be considered a POW, he should be released at the end of hostilities, which by any reasonable definition ended when we overthrew the Taliban, or, if you want to includ Iraq, when we overthrew Saddam.
To claim that we can hold him indefinitely because hostilities are ongoing would be equivalent to claiming that we could hold German prisoners of war from WWII until we eliminate every neo-Nazi skinhead group, or to claim that we can hold KKK members as POWs as long as the KKK exists.
declare them to be illegal enemy combatants, and try them in military courts
That could be acceptable, provided that the public is convinced that such courts will produce a fair trial, and provided that people are confident that such measures will not be used against American citizens.
What people are afraid of is that the government is declaring itsel to have the power to detain anyone they choose indefinitely without trial and without giving them a chance to defend themselves. The argument that terrorists don’t deserve procedural rights can only survive if people are certain that these measures are only used against those who are terrorists.
Very few of the people arguing for such measures as you are, Mr. Robertson, are willing to come out and argue that we have sufficient procedures in place to make certain that those we are detaining are actually guilty. If you argued that, you would get a lot more converts.
November 14th, 2009 at 9:30 am
This country would NEVER accept becoming part of an international criminal system. It would take away our right to commit whatever crimes against humanity we feel like.
Many other nations feel the same way.
November 14th, 2009 at 9:36 am
#7 – In a military tribunal, the rules of evidence allow for the “messiness” of combat/intelligence operations. Civil courts do not (and should not) do that. Enemy combatants taken overseas in extra-judicial circumstances simply don’t belong in civilian courts. For anyone arrested within the normal system, civil courts are the answer. For people taken in battlefield/intelligence ops, no.
As to the system being fair – The military’s track record in this area is limited, but fairly good.
November 14th, 2009 at 9:41 am
I haven’t looked closely at the ICC. But the level of accountability of other international institutions doesn’t give me a lot of confidence that it would operate properly or that there are self-correcting mechanisms in place to keep it operating properly in the future. What is the model of procedure both investigative and judicial? How are procedural issues resolved? Who are the judges and prosecutors, how are they selected? If a judge or prosecutor acts improperly how could he be held accountable and by whom?
November 14th, 2009 at 9:47 am
Re: The ICC doesn’t have the possibility of a death sentence, so it’s pretty much a no-go for KSM.
Perhaps we should hand KSM over to General Abdel Rashid Dostum and let him take care of the problem in good old Afghan style.
November 14th, 2009 at 9:52 am
Bush had the opportunity to diminish these people from the beginning and try them as common criminals but Rove and Cheney could not let that happen and he never had his own thoughts on the subject so we got what we got. Put them to trial like they should have been in the beginning and be done with it. Stop acting like these guys are special, they’re not.
November 14th, 2009 at 9:52 am
Just openin’ the floodgates of bleedin’ hearts!
That implies that we want KSM to have a trial because we care about him or have sympathy for him. Rather, it’s because we care about *us*.
Ass.
November 14th, 2009 at 9:54 am
Someone run a correlation between “opinion on trying KSM in NYC” and “proximity of home to NYC.”
It will always be hilarious that the most ardent “9/10 mentality” and “KEEP HIM OUT OF OUR COUNTRY” wingnuts not only do not live anywhere near New York, but loathe the people who do.
November 14th, 2009 at 9:58 am
Also, a question for the bloodthirsty wingnuts: 2 weeks after 9/11, Bush vowed to bring the perpetrators of 9/11 to justice. Now, obviously, he was a miserable failure in that endeavour, as in most others. But what do you think “bring to justice” means? Doesn’t it mean face charges? In a court? And get sentenced?
November 14th, 2009 at 10:15 am
In the abstract, the idea of trying KSM in a mitary tribunal is not a bad one. However, the Bush administration made that entire process suspect. A criminal trial is the only forum in which the proceedings can be considered trustworthy.
The track record of the USA has when if comes to trying so-called “unlawful combatants” is a poor one (no one wants a redo of Quirin) , and I think that the best thing to do is refrain from setting some kind of precedent abd normalizing the use of mitary tribunals. In short, the process has been tainted by the prospect of creating a bunch of kangaroo courts, so civilian courts seem like the way to go.
November 14th, 2009 at 10:23 am
#3
; they were taken on battlefields and/or via intelligence operations, using rules of evidence that differ a lot from those used in civil procedures. That means that much (maybe all) of the evidence against them is inadmissable or unusable in a civil court.
Unless Holder is a complete fool, he would have thought that through already. I reckon it’s not a problem. In general, I really don’t see what the problem is with a civilian trial. The man conspired to commit 4 acts of grand theft jetliner,
several acts of arson, and a few thousand acts of murder. Civilian court is an appropriate venue for that sort of thing.
Isn’t seeing him convicted in pubic with the benefit of a fair trial and due process more satisfying than squirreling him away to some kangaroo court and having him convicted in secret?
November 14th, 2009 at 10:23 am
Terrorists, like pirates, are a scourge on humanity and be shot on sight.
You do realize that pirates have been arrested abd tried for their crimes on civilian courts for centuries, right?
November 14th, 2009 at 10:43 am
Isn’t seeing him convicted in pubic with the benefit of a fair trial and due process more satisfying than squirreling him away to some kangaroo court and having him convicted in secret?
There are all these movies when the international criminal mastermind is on the cusp of being defeated by the hero where the antagonist laughs in the hero’s face and says, “But I vill just be tried in one of your courts vehre my army of lawyers vill get me off!” at which point the hero shoots him.
There is a widespread belief that terrorists are attacking us because they feel they can “get away with it” because of the supposed laxness of our civilian justice system, so many people get it in their heads that the solution is to have a “real” justice system for terrorists to show that we’re “serious.”
November 14th, 2009 at 10:51 am
Not only that, but giving the executive emergency powers to fight piracy in ancient Rome played a role in transforming what democratic institutions they had into a dictatorship.
November 14th, 2009 at 10:53 am
Tyro @16: In the abstract, the idea of trying KSM in a mitary tribunal is not a bad one. However, the Bush administration made that entire process suspect. A criminal trial is the only forum in which the proceedings can be considered trustworthy.
That’s a very good point.
(no one wants a redo of Quirin)
You don’t listen to much talk radio, do you? Actually, lots of people appear to want just that, except that they think that Quirin was too lenient to the defendants.
November 14th, 2009 at 11:02 am
that’s the court that – were we part of it – would have demanded the heads of various CIA and military people over the past few years.
Only in your tight little imagination.
The interesting discussion here, really, would be based on Greenwald’s valid point that the Obama admin and DOJ have been venue-shopping the remaining “high-value” detainees based upon the ease with which they could achieve a conviction, because the political damage of having one of them walk free outweighs the consistent application of justice.
That’s slightly different from the J-Rob standard, where the course of action correlates to the threat someone is perceived to pose to his white picket fence.
November 14th, 2009 at 11:12 am
Wherever he is tried, it must have legitimacy; otherwise we are no better than the NAZIs. Military tribunals originally were not set up for this purpose, so I have serious doubts here. The World Court in the Hague would have been preferable, and certainly have brought us respect, which is really a major part of the battle against Al Qaeda and Islamic extremism. Simple revenge, which US politicians have slopped out to the US public, should have taken a secondary position. On the other hand, one questions whether the evidence isn’t now so tainted with torture that it may not be admissable in an impartial court.
James Robertson, #3, has a point about our use of drones to eliminate our purported enemies. Are these devices legitimate means of antiterrorism? These devices opens a whole new can of worms (efficacy and legitimacy) which is difficult to respond to. As a tactical warfare tool, they appear effective, but have we used them indiscriminately, resulting in unnecessary civilian deaths? And as a result, are we being judged guilty in the world court of public opinion, if not a judicial court of some standing? Is this helping or hindering the fight against Islamic extemism?
Mike K, #1, Should read Robert Merriam’s account of the Battle of the Bulge. The stories concerning Skorenzy’s German raiders are largely exaggerated.
November 14th, 2009 at 11:18 am
Anthony:
Your #13 and #15 comments are excellent. I agree with you 100%.
Especially #13.
November 14th, 2009 at 11:20 am
Be fair, pseudonymous, for James Robertson, only mass murder will do. If he has to reach back 90 years for justification – he’ll do it (hey fuckwit, feel particularly stupid for bringing WWI into the discussion of why Bush had to slaughter innocent Iraqis? You should).
Yes, it’s too bad that Bush spent 8 years destabilizing the world and leaving his successor with a mess, and yes it is too bad that his successor is in thrall to the MIC and will not stop murdering people – but James is the kind of moron who thinks we should start with the Democrats, rather than the people actually responsible for getting us into this disaster. But that’s because he’s an idiot partisan.
November 14th, 2009 at 11:37 am
While I agree in principle, that war crimes, crimes against humanity, and perhaps other sorts of “special” crimes of international import generally can and should be under the purview of the ICC, I don’t agree that it applies in these cases. Firstly, there is no reason to believe that local courts cannot adequately adjudicate these cases. Secondly, substantively, they simply are not, as Lieberman suggests, war crimes; an international conspiracy does not, a war make.
Though, I can understand the dilemma Neocons find themselves in: Indiscriminate mass murder is clearly a crime that needs to be prosecuted vigorously. On the other hand, the Neocons LOOOVE them some war; so much so, that they are willing to extend it’s definition beyond any rational meaning. It would seem that calling 9/11 a “war crime” is the perfect semantic solution for Mr. Lieberman, as long as you don’t really care about the actual meaning of the words. What, I think, Mr. Lieberman really means, when referring to terrorism, is “War/Crime”; thus terrorists are “soldier/criminals”, thus the “War on Terror”. It saves one the trouble of having to think seriously, or make up one’s minds. The fact that it’s all incoherent nonsense is, probably, seen as more of a feature than a bug.
November 14th, 2009 at 12:13 pm
That KSM was captured on foreign soil really makes no difference. We extradite people from foreign countries regularly. The question of venue has more to do with where the crimes took place. Consider this scenario: A Canadian citizen kills someone in a barfight in New York, then hops on a plane to Brazil. The police figure out which flight he’s on and ask Brazilian customs agents to pick him up when he lands. Should he be tried in a military tribunal because he he was captured in Brazil by authorities that weren’t regular police? Of course not. He’ll be extradited and tried in a New York court. The situation here is a little different in that the crimes were obviously much more serious and took place in multiple cities. But that really just makes it a federal case. The most serious of the crimes took place in New York, so New York is the appropriate venue. The only thing that could be an issue is whether KSM was properly extradited. But I’m pretty sure that it’s an issue for Pakistan’s courts, not ours. If Pakistan says the extradition was proper, KSM has no standing.
In the case of the Cole bombing, military tribunals make complete sense. The crime took place in a foreign country and the target was a military vessel. Either one of these issues would make it inappropriate for a civilian trial.
As for the evidence against KSM, the confession may get thrown out, but his computer is very damning. And Holder says there is additional evidence that has not been disclosed. I’m sure he has a solid case, or he wouldn’t do this. But the case would obviously be stronger if we hadn’t tortured him. And that is something to consider in the future.
November 14th, 2009 at 12:28 pm
They should have tried KSM as soon as they captured him. Torturing him like they did only f’s up the case creating the possibility the prosecution’s case will fall apart in court. I think that’s unlikely, but this only shows one of the many reasons torture is a stupid idea.
As for the International Criminal Court, I’m totally opposed. Military Tribunals are for wartime prosecutions of special case, foreign suspects (spies, sabateurs and such) and regular criminal courts work fine for others cases. Terrorists fall into that grey area -basically, they’re pirates and should be handed over to the country with the best case or biggest beef against them.
The ‘International Courts’ are a joke, subjectively prosecuting politically palatable cases as they see fit. They’d have prosecuted KSM and then wanted to go after the Bush administration for torturing him. No good; that’s a big can of worms we don’t need opened by foreign courts. The Italians and Belgians have plenty of Italians and Belgians they can prosecute without digging through our dirty laundry.
November 14th, 2009 at 12:55 pm
If KSM confesses, and we get a conviction and execution, maybe we won’t Kill His Kids
Proud to be an American.
November 15th, 2009 at 1:20 pm
According to Geneva, captives accused of crimes – whether those crimes are stealing, or crimes against humanity – need to be tried in “a regularly-constituted tribunal” that affords the accuses the same level of rights that the country’s citizens would receive if they were tried for a crime.
The only legitimate military tribunals would be courts martial, using the same standards of evidence and procedure that control when our own troops are tried.
Also, if we’re going to hold people as POWs, we need to treat them as POWs, and follow all of Geneva’s requirements for the treatment of prisoners, including Red Cross visits and letters from home.
November 16th, 2009 at 1:28 pm
Who’s a bigger enemy to the U.S. - Tarjuffe (Lieberman) or KSM? In real terms – who’s done more damage to the country? When is he going to be hung with piano wire?