Detainees to get "the-state-always-wins" system of "justice"

[kpete]

Detainees to get "the-state-always-wins" system of "justice"
Obama's announcement to try 9/11 defendants would be commendable if it applied to all, rather than some, detainees.

Glenn Greenwald

Nov. 13, 2009

According to The Associated Press, Eric Holder will announce later today that Khalid Sheikh Mohammed and four other 9/11 defendants will be brought from Guantanamo to New York to stand trial, in a real criminal court, for the crimes they are accused of committing. This is a decision I really wish I could praise, as it's clearly both politically risky and the right thing to do.

An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks. It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done -- I expect to have an interview later today with one of those family members -- and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism. So this component of the Obama administration's decision, standing alone, is praiseworthy indeed.

The problem is that this decision does not stand alone. Instead, it is accompanied by this:

Holder will also announce that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.

It was not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.
http://news.yahoo.com/s/ap/20091113/ap_on_go_pr_wh/us_guantanamo_us_trial

http://www.salon.com/news/opinion/glenn_greenwald/2009/11/13/guantanamo/print.html
http://emptywheel.firedoglake.com/2009/11/13/defense-lawyer-statements-on-ramzi-bin-al-shibh-and-rahim-al-nashiri/

[spanone]

1. got to start somewhere. if Obama cured world hunger they would accuse him of promoting obesity.

[sandnsea]

2. He attacked a military ship, hello??

I will have to look at each individual and the hows and whys of it, but I agree that anyone connected to terrorist groups who specifically fought against the military - should be tried in military court. Pearl Harbor was a military matter, correct?

Attacks on civilians, are civil matters. Although it could be argued that 9/11 was an act of war. The Japanese bombed the Oregon Coast and I don't feel it was the same as a kid blowing up a tree stump.

I think this is moving along very well and there are only going to be a handful of individuals that are going to be difficult to decide what to do with.

[Truth2Tell]

3. If it's a "military" matter

and not a civilian matter, as you insist, then certainly you would agree that these individuals are then POWs, right? Like the Geneva Conventions, which we claim to still support, require? And they are entitled to all the protections provided thereby? Right?

[merh]

4. What do you allege they have not been afforded that a POW

would be afforded?

[Vincardog]

7. They have been tortured. POWs are not supposed to be tortured.

[merh]

10. I know they were tortured

I'm trying to find out if there is something done today.

thanks for your input though

[Truth2Tell]

9. Putting POWs on trial

is against the Geneva Conventions. And putting anyone on "trial" in kangaroo courts that don't include decent human rights for the accused is against American values.

[merh]

11. I believe the Geneva convention does afford that POWs be put

on trials that afford the proper due process

Article 103

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.

http://www1.umn.edu/humanrts/instree/y3gctpw.htm

[Truth2Tell]

12. Here's the language from Article 99

laying out the framework for Judicial Proceedings:

No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.

No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

No prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel.

http://usmilitary.about.com/library/milinfo/genevacon/blart-99.htm

This Article has been universally interpreted to mean POWs can be tried for traditional civilian crimes and for War Crimes, but not for acts of hostility against opposing military forces. Those are considered to be acts of war and POWs can't be tried for acts of war under these Conventions.

If these guys are POWs then we can't legally try them for what we want under the Geneva Conventions. If they're not POWs then they are criminals and we need to try them in the USA.

[merh]

13. What about these provisions?

Chapter III

PENAL AND DISCIPLINARY SANCTIONS

I. General provisions
Article 82

A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall

be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.

If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.

Article 83

In deciding whether proceedings in respect of an offence alleged to have been committed by a prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.

Article 84

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

http://www1.umn.edu/humanrts/instree/y3gctpw.htm

[sandnsea]

5. The ones who attacked the military

yes. The others should have always been in the US criminal system.

[RaleighNCDUer]

6. So the American citizens who plotted to attack Ft Dix should be

tried by the military instead of in Federal court?

Military justice should ONLY apply to members of the military. That is how it always has been, with the one exception of the Nazi saboteurs who were tried by military tribunals - and THAT trial was later ruled unconstitutional by the Supreme Court.

[sandnsea]

8. They think they're at war

I also don't think people fighting the military in Afghanistan should be brought to the US for a civil trial. They're fighting the military. It isn't the same as bombing a hotel, as bad as that is.