February 01, 2010

Ignorance and Military Tribunals

Timothy Birdnow

Americans are the product of an educational system that is designed to produce good, devout Democrat voters, of that there is little doubt. I am ever amazed at the ignorance on parade by liberals, people who have obtained their degrees from cracker jack boxes courtesy of the NEA.  The truly frightening thing is that so many liberals actually believe they are wise when they know virtually nothing about our nation's history. 

For example, here is an essay arguing for civilian trials for KSM and the other 911 terrorists. http://blogcritics.org/politics/article/ksm-and-the-boys-are-criminals/

Dave Nalle begins well enough:

"Despite all the whining and posturing from international do-gooder organizations, it is indisputable fact that non-uniformed irregular combatants and terrorists and terrorist conspirators and organizers are absolutely not regular soldiers and are by no means protected by the Geneva Convention."

So far, so good, although he will soon fall off the beam:

"Despite the attempts to shoehorn them into a new category of "illegal enemy combatants," they should not be tried in military tribunals, a form of trial normally reserved only for internal military discipline, though it was used for war crimes and for spies in World War II."

Also military tribunals were used for guerillas during the Civil War, if the Bushwacker wasn't summarily executed.  Quantrill's Bushwackers were subject to military tribunal and execution if caught, for example. S

And this was done, too, by General Winfield Scott during the Mexican War. According to the Leftish John Dean http://writ.news.findlaw.com/dean/20011207.html

"While military commissions were used by George Washington during the American Revolution, I have focused on their use since our Constitution was adopted in 1789. The legal scholarship of a retired Army attorney, Colonel Frederick Bernays Wiener, served as my guide. He's an expert on the history of our military law. (I learned of Colonel Wiener's work in a 1995 article by Gary Wills in the New York Review of Books.)


Colonel Wiener traces the original creation of American military tribunals to the Mexican-American War (1846-48) and Major General (his then-rank) Winfield Scott. Military commissions were used with both volunteer American troops who went out of control once below the Rio Grande, and to deal with the offenses of Mexican guerrilla fighters, and the fractious local populace, in Mexico.

History reports no criticism of General Scott's use of these panels to administer justice against enemy belligerents and citizens harboring such combatants. Trying Mexican guerrilla fighters, who were not part of the Mexican Army, before military commissions is an early precedent for bringing contemporary foreign terrorists before such tribunals today."

In other words, Scott used tribunals against ILLEGAL ENEMY COMBATANTS. Their status as civilians or soldiers was immaterial; they were fighting out of uniform, and subject to tribunals after which they were shot.

Franklin Roosevelt ordered sabateurs and spies tried by tribunals, by the way.  According to this piece from the Heritage Foundation http://www.heritage.org/Research/NationalSecurity/hl834.cfm:

"In 1942, the United States Supreme Court decided Ex parte Quirin,1 a case in which prisoners detained for trial by military commission appealed a denial of their motions for writ of habeas corpus. The Supreme Court held that "military tribunals are not courts in the sense of the Judiciary Article [of the Constitution]."2 Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment."

It should also be pointed out that America and the other allies dealt quite harshly with the Werwolves, German terrorists who waged guerilla war after the Nazi government collapsed. Werwolves were subject to military tribunals if they were taken alive, something that occured rarely as it was the goal of Allied forces to kill them.

Mr. Nalle seems incapable of understanding the concept of Hostis Humani Generis, or Enemy of Mankind, a title given to pirates, for one. Pirates were considered as extra-nationals, people who wage war on mankind as a group while eschewing the laws of any home state. They were - and are - subject to the strictest actions imaginable. Mr. Nalle would treat pirates as criminals, offering them civil rights. That has already been established that stateless combatants are not subject to such rights, while not being an actual military operation. Terrorists clearly fall under this category; they wage war (and not for personal gain) while hiding behind the protections of civilians.

Intent, by the way, is a crucial function under the law.

Oh, but sixties radicals were treated as civilian criminals, and so that should be our model here, according to Nalle. He completely misses the point that these revolutionary groups were American citizens rising against their own country. He also misses the point that they SHOULD have been treated as traitors in bygone days. That we did not handle the issue properly hardly sets a permanent prescedent. Does anybody seriously argue that the trial of the Chicago 7 better served justice, or our country?  Had Bobby Seale tried to disrupt the proceedings in a military tribunal he would have been - dealt with.

Mr Nalle asks why we should do this, why NOT use civilian courts. Has he not heard of discovery?  Civilian courts will splash the names of our sources of information across the media, endangering our operatives, our informers, our entire espionage network. Ramzi Yousef's trial in 1997 for the first World Trade Center bombing alerted Al Qaeda to all manner of things - including the fact that we were intercepting their cell phone conversations. They wisely changed their techniques, and we lost the ability to intercept their messages thanks to this "unimportant" little point. 

Mr. Nalle has this to say:

"The reality is that there's very little reason not to try terrorists in regular United States courts, beyond the convenience of the prosecutors, concern for public sentiment, and a belief that military trials will be quicker and more likely to convict on weak evidence. Other arguments of convenience are also questionable. The ideology of the criminal, his violent inclinations, what role he may play in inspiring others, or the possibility of reprisals all have no standing at all in the legal process. None of these is a legitimate reason to override the basic right to a trial by jury to which criminals are entitled under our constitution, under common law, and as a matter of basic human rights."

HUH!  VERY LITTLE REASON?! How can he not grasp the fact that Enemy Combatants have not been read their Miranda rights, have often been denied attorneys for extended periods, have been interrogated in a much more aggressive manner than U.S. law permits, and a score of other reasons that guarantee KSM and others will walk away scott free.  Proceedure is important in American law, and by granting men who have made it plain they see themselves as soldiers in a war against us but will not don uniforms and follow the accepted rules of war civil rights we are all but assuring their victory in court and their continued success in their campaign of terror and mayhem. These are not idle points; terrorists such as KSM or UBL are Enemies of Mankind, stateless fellows whose hands are against all.  They are not criminals and they are not POW's. We have more than adequate historical precedent to treat them as unlawful enemy combatants. That the term has never been used before hardly invalidates the historical realities.

That we have large segments of the American population completely ignorant of the historical reality involved here is frightening; we may die like sheep, cowering in fear not of the enemy but of our own superstition and ignorance. We have talked ourselves into believing that we cannot defend ourselves lest we violate our core values. We do that out of pure ignorance and sophomoric understanding. 

Mr. Nalle finishes with a flourish:

"Sentiment and the desire for revenge should never be allowed to override fact when it comes to the law. The fact that these terrorists were not soldiers, did not act on behalf of any nation, and are functionally no different from any other common murderer or group of murderous conspirators is undeniable. Since they are criminals they should be tried as criminals in both the state and federal courts and be punished under the laws of those jurisdictions. In this case, that would mean a trip to Indiana where federal executions are carried out by lethal injection."

Good luck with that!


Posted by: Timothy Birdnow at 08:35 PM | Comments (2) | Add Comment
Post contains 1394 words, total size 9 kb.

1 Good job editing out the parts of the article which directly dispute your assertions, such as the suggestion that the terrorists be treated as criminals from the point where they are transferred into civilian custody, thereby satisfying the requirements of due process and equal protection.

No wonder you only wanted to respond here on your own blog.


Posted by: Dave Nalle at February 01, 2010 09:22 PM (KCElI)


Uh, Dave, I put a link to my blog so everyone could comment. I assumed you would not want to be embarassed in your home stadium as it were. I would be happy to post it in it's entirety at your post, if you would prefer.

By the way, I don't know what you think "such as the suggestion that the terrorists be treated as criminals from the point where they are transferred into civilian custody, thereby satisfying the requirements of due process and equal protection" means or accomplishes. I suppose you think that once civil authorities are involved it becomes a civil matter. So, if you are caught in Iraq or Afghanistan you are somehow qualitatively different than if you are caught on an American airliner. Same purposes, same plans, same organization, but different because one was dealt with by the F.B.I. and the other by the U.S. military.

Perhaps we should expand Gitmo, and adopt President Obama's plan to create an internal military? Then the first responders would be the Obama Oprichnina, and they could whisk the terrorists off to Gitmo for an extended stay?  Is that what you are advocating?

The sad fact is your arguments fall of their own weight when examined from an historical perspective.  Native Americans were not given civilian trials during the Indian Wars, I might point out, despite the fact that they were clearly either civilians or a foreign power (depending on your perspective). They were tried by military tribunals and subsequently executed or imprisoned in military prisons.

What we cannot do is return to the old way of treating this, as a mere crime. It isn't; these people have openly declared war on us, yet fight in violation of the rules of war as set down at Geneva. They have all the appurtenances of an army - training camps, equipment, lines of communication, chains of command, etc. yet they are stateless. This is a war, but it is being fought in a terrible dishonorable fashion by the enemy. YOU expect us to offer them full protection of the law while they use those protections against us. These are not lawful combatants and they are not criminals. They perform acts of mass murder on innocent civilians. They do not respect neutrality.  They respect no laws of civility and deserve none.

I suspect you know this in your heart, but are so bound up in a political ideology and vision that you refuse to allow yourself to see it. Did you really hate George W. Bush that bad, that you are willing to imperil the lives of your friends and neighbors to wipe any successful policy of his from the face of the Earth?  I am no great fan of Bush, but he did manage to keep us safe from attack, and his policies largely protected our Constitutional rights. Are you equally concerned by such unconstitutional things as forcing Americans to purchase insurance or face potential jail time?  That is a far greater threat to our liberties.

At any rate, thanks for visiting and giving me something to rant about.



Posted by: Timothy Birdnow at February 02, 2010 07:42 AM (e6n2C)

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