Devils Advocate

So recently in the news there has been quite the shake up over the upcoming trial of Khalid Sheikh Mohammed, one of the alleged masterminds of the 9/11 attacks in the USA. The controversy has been over a number of items regarding the trial. There are members of congress who are rallying for KSM and his buddies to be tried under the military tribunal as an 'enemy combatant'. As it stands right now, KSM et al are to be tried in Lower Manhattan near Ground Zero in a civilian court. And while there seemed to be much opposition to this, there wasn't a lot legal evidence behind it.

And as someone who has more than a vetted interest in this case, I threw out the challenge to my legal minded friends to explain to me why he SHOULD be tried in a civilian court as opposed to a military tribunal. The fact of the matter is, I didn't know enough either way to have an informed opinion, so I didn't really know what my opinion was on this.

Makes me think I should investigate a little further and try and balance out my right wing viewing habits a little. And I thought I wasn't doing so bad. But seriously, if only we could get these facts and figures out of the politicos instead of a hot shoe shuffle, people wouldnt be so a) ignorant, b) angry, c) confused or d) ALL OF THE ABOVE!

1. Substantial questions remain over the status of the arena of combat, and consequently its participants. The beginning of the then so-called War on Terror commenced with Congressional authorisation of a limited "use of military force" rather than a legal declaration of war. Without this, the rules that enable military tribunals to apply and which also allow designation of "enemy combatants" are not engaged. In short: it's not a war just because you call it one.

2. The American Constitution's protections in respect of due process and trial in concordant jurisdiction, enshrined in the 5th and 6th Amendments, are long established by legal contest as being accessible to non-citizens. Concerns over civilian provision of such rights, in contrast to military tribunals that may operate without such measures, suggest a presumption of guilt that is counter to the government's obligation to prove each of its charges - in any forum.

3. American legal history dating back to the Civil War indicates that military tribunals are for use within the context of military engagement and only where civilian criminal courts are unable to exercise jurisdiction. Statutes do exist in the Federal jurisdiction to stiffly punish terrorism and in fact this method has been overwhelmingly the norm, with at least 195 cases (and convictions) processed since 9/11, compared to 3 (2 largely uncontested) in military tribunals.

4. Ample precedent exists for Federal judiciary to consider in examining the case against Khalid Sheik Mohammed and others charged with like crimes. Timothy McVeigh, Omar Abdel Rahman (who made an attempted attack on the World Trade Center in 1993), "American Taliban" John Walker Lindh, "Shoe-bomber" Richard Reid, and the "Fort Dix Six" accused of attempting to take over a New Jersey military base were all tried and convicted in civilian courts.

5. Protocols used in military tribunals would allow for the introduction of questionable and potentially misleading evidence. Over the course of its global offensive on terrorist networks, the American military has repeatedly sustained criticism for its use of coercive methods. By the CIA's own admission, Khalid Sheik Mohammed was waterboarded 183 times. Evidence rendered in this fashion is neither reliable intelligence nor consistent with legal requirements.

6. The Supreme Court, in spite of its current, predominantly conservative composition, has on at least three occasions denied claims made under the Bush administration that Presidential fiat overrode Constitutional guarantees in respect of the application of law and treaty, and of judicial oversight. Procedural denial of these findings through the use of military personnel to render judgement in the context of terrorism flouts both the court and the Constitution.

7. The use of two legal forums to try alleged terrorists (one with drastically lower requirements for indictment and conviction) creates a notion of second-class justice. The separate and unequal nature of these systems of legal fact-finding creates a presumed invalidity that weakens public, and international, trust in American legal rigour. Such a public relations stance has security ramifications: America is a greater target if it contributes to claims of injustice.

8. Arguments about the practical risks and impediments relating to civilian trial of terrorism suspects ignore courtroom realities. There exist various judicial tools for dealing with sensitive information, and domestic law enforcement and civic leadership are well practiced in providing additional resources to the already robust security of Federal courts. To suggest that terrorist trials entail a heightened risk is to dismiss a long history of organised crime hearings.


Anyone else have any comments to offer on this ? I asked hubby this morning, and as much as I'd like to see him tried under a tribunal, 'personal preference' and subjective 'common sense' don't really hold up in a court of law. I say this because a very wise person by the name of Socrates and an ever so fabulous Elle Woods once said 'The law is reason free from passion', and so shall it be upheld.

I'd love to hear what you all think on this, especially from those of you who are within the military community.