Crimes, War Crimes and the War on Terror

[rjorr]

The online blog "Opinio Juris" has a good post today regarding the decision to try KSM and some others in federal court. It does, in my mind, a good job of refuting the notion that the criminal process is somehow a threat to US security. Others have addressed the subject in more detail, but this author does about a good a job as I've seen in a short piece.

http://opiniojuris.org/2009/11/17/do...pinio+Juris%29

[jmm99]

by Crocker and Yoo, I concluded both were a waste of my time, other than the comment by Howard Gilbert (4th response).

That at least shows situational awareness of the different rules applicable based on a detainee's status; and the parameters of nationality and territorial jurisdiction.

So, here is the comment:

A person has or does not have Constitutional rights based on his legal status. He does not lose these rights based on the type or severity of the crime of which he is accused. He cannot be stripped of these rights by the type of court in which he is tried. Someone who lacks constitutional rights will still get normal judicial due process in a trial and may call witnesses and be represented by a lawyer of his choice.

While sloppy thinking may be endemic to the debate, one hopes the judge will sort things out. “Terrorists” have no more or fewer rights than bank robbers, but a non-citizen captured and held overseas and then tried for some sort of extraterritorial murder is not entitled to certain procedural rules (with regard to things that happened in foreign countries) that would apply to a resident accused of a murder in the US.

One may believe that civilian courts would be more likely than military courts to make the mistake of attributing Constitutional rights to someone who is not entitled to them. This is a valid criticism of some judges, but it is not a problem with the court system. On the other hand, military judges know they are dealing with enemy soldiers captured outside the US and are unlikely to make certain mistakes.

KSM is entitled to all the protections of due process, but he is not a citizen or legal resident and is not entitled to constitutional protections. For example, when papers and computer disks were seized by the Pakistani police during his arrest there was no US search warrant because no US court had jurisdiction over Pakistan. Those papers and files cannot be excluded, because the Fourth Amendment did not apply to his capture.

Although statements made due to torture can be excluded, there is no requirement to read Miranda rights to someone who, at the time of capture, is not protected by the Fifth and Sixth Amendments. Judges should be smart enough to not exclude, for example, un-coerced statements made by enemy soldiers after capture, even though the same statements might be excluded if made by un-Mirandized citizens after a criminal arrest.

There are judges who are smart enough to apply the law correctly, and some who are not. Unfortunately, the system does not have a procedure to guarantee that a trial like this is assigned to the most able judge.

QED.

----------------
rjorr: An introduction with some background would be helpful - perhaps, here.

Regards

Mike

[Sergeant T]

Two thoughts come to mind in reading through Gilbert's comment. First, at what point in his detention do the 5th and 6th Amendment kick in? I'm willing to bet his lawyers will spend some quality time with this issue. Second, Gilbert says the 4th Amendment doesn't apply to items seized at his capture. While that's true it doesn't mean they're going to be admissible in court either. At least from what I recall of my ConLaw classes many years ago. I'd love to be wrong about that.

[jmm99]

The reach of the Constitution hinges on two primary factors: (1) nationality jurisdiction (e.g., US citizens and usually legal resident aliens); and (2) territorial jurisdiction (i.e., what geography is "incorporated" into the US).

Here are some study aids:

The Insular Cases - Wiki. In effect, the Supreme Court held that full constitutional rights did not automatically extend to all areas under American control.

The Insular Cases - Dan MacMeekin. Very nice summary discussion of each case, with links to the Find Law case reports.

United States v. Verdugo-Urquidez - Wiki. To date, the authority of this case seems unimpaired. The controversy, if any, has been with respect to "relaxation" of 4th, 5th and 6th Amendment rights within CONUS because of GWOT.

That domestic focus seems part of an ongoing effort by John Yoo et al to prove that their domestic-focused memos re: GWOT were correct, as in this piece from Volokh, A Response to Delahunty’s “The Fourth Amendment Goes to War” (26 Oct 2009).

There we also find a comment by Howard Gilbert (the guy gets around):

Soldiers are not trained in police procedures or law. When deployed in a military operation, they do not obtain or even think about warrants.

It is the responsibility of the national command to not deploy soldiers in a police operation. The military is therefore not exempt from the Fourth Amendment, but it is a matter of Monday morning quarterbacking. If a judge finds months later that the circumstances were not a proper military operation and a warrant was required, then the person whose rights were violated has a cause of action against the US.

In that sense, you have to reverse the logic. It is not that warrants are not required for a military operation, but rather than when warrants are required, it is not a legitimate military operation and should have been conducted by the police.

The most likely scenario in the current conflict is not Gettysburg, but Mumbai. A commando raid by an enemy unit arriving in fast rubber boats launched from a ship off the East Coast. Although local police might respond, it would be legitimate to also use military forces. Once committed to such a battle, soldiers can enter any building, detain people, and use such force as is necessary to accomplish the mission. If they happen to stumble into your basement filled with pot plants, that is probably not admissible as evidence in any criminal case.

Now you may say there are exigent circumstances. That provides a rationale in current legal terms for the activity. However, you are trying to apply legal language to a situation where that law does not apply. The military, once legitimately deployed in defense of the US against an external invader, do not require warrants ever, their actions are inherently reasonable, and the Fourth Amendment is silent about such activity. In the history of the US, no military unit has ever obtained a warrant for anything. A warrant is authority from the Article III branch of government to do something. The Article III branch has no authority that is required or even helpful to military operations, which operate solely under Article II authority.

There is no case law because previous generations have understood this principle. Since the Civil War, one might look for incidents in the New Mexico raids by Poncho Villa, or the martial law in Hawaii after Pearl Harbor. However, there are not a lot of examples of actual attacks by a foreign force inside the US, so you have to use some logic to guess the outcome when an issue has never been litigated.

Generally, this works for me; but specific facts must be provided before engaging in reasoned analysis. In absence of specific facts, the discussion degenerates to "going to perdition in a handbasket", "sliding down the slippery slope" and all the rest of the catch phrases used in current political spin.

In summary, the "Insular Cases" answer many 4th, 5th and 6th Amendment issues, which will not differ substantially whether the case is tried in a Federal court or before a military commission.

There is a difference between judges. For example, in the Gitmo habeas cases, the judges who were more knowledgeable about intelligence matters and AQ (e.g., from having served on the FISA court), in my opinion, authored more thoughtful and relevant opinions. And that was so, whether they held for or against the detainees.

Unfortunately, many who attempt to discourse on these issues have not really studied transnational violent non-state actors (e.g., AQ) in terms of their strategies, operations and tactics. These TVNSAs are not equivalent to your average domestic bank robber or murderer.

Hint: those legal discoursers should be required to participate across the board in SWC forums before being allowed to speak.

[davidbfpo]

Nothing results in more disclosures of government intelligence than civilian trials,’’ writes former federal prosecutor Andrew C. McCarthy. “They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses - intelligence sources - must expose themselves and their secrets.

McCarthy should know. He was the prosecutor of Omar Abdel Rahman, the “blind sheikh’’ put on trial after the 1993 World Trade Center bombing. Though Rahman was eventually convicted and is serving a life sentence, the government was required to supply defense lawyers with sensitive intelligence details, including a list of 200 potential co-conspirators - people the government knew about, but didn’t have enough evidence to charge. Within days, those names had found their way to Sudan and were in the possession of bin Laden, an intelligence windfall that immeasurably aided his jihad against the United States.

From:http://www.boston.com/bostonglobe/ed...day-newsletter

[davidbfpo]

MI5 and MI6 have been given permission to hold hearings behind closed doors into their alleged complicity in the treatment of seven former detainees in Guantanamo Bay.

A High Court judge ruled there was no reason in law why closed hearings should not be used in the damages case, even though it had never been used in such a case before.

The judge said the "closed material" procedure entitled the defendants not to disclose matters to the claimants or their lawyers where disclosure would be contrary to the interests of national security, the international relations of the UK or in any other circumstances where it was likely to harm the public interest.

From:http://www.telegraph.co.uk/news/6600...nto-abuse.html

[jmm99]

I'm never sure how to handle the suggestions of fellow lawyer and McCarthy, Andy. His suggestion of a civilian National Security Court to handle "war crimes" cases (similar to the FISA courts with TVNSA-savvy judges) seems to me a good one, even though there is no possibility that it will be adopted by the present administration and Congress.

However, as to his short article, Holder's Hidden Agenda, cont'd, in Andy's Corner at NRO (13 Nov 2009), with this substantive conclusion:

Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

I have to say: Not necessarily so. The DC habeas proceedings are civilian, where classified evidence has been protected - although some judges there have not been adept at that (e.g., writing public opinions that have to be so redacted as to become unintelligible). Of course, the sealed full opinions (and all the classified evidence) are filed and available for appellate review. The old intel pros among the judges write two opinions, one a shortened non-classified version; the other a full classified version. In short, our knowledge of TVNSAs and procedures to protect classified evidence have advanced since the Rahman trial.

That having been said, Andy makes a valid point with this, subject to the caveat above:

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

So, a lot depends on the judge trying the case. If the judge is protective of classified evidence and if the DoJ aggressively asserts its rights as to classified evidence, that issue will not be a problem. However, the huge media coverage, and the "evidence" already open-source as to extraordinary renditions, enhanced interrogations and secret prisons, would still result in the media circus that Andy describes. As I said above: "So, let the Games begin as they surely will."

Keeping these cases within reasonable bounds depends not only on the judge keeping firm control over the case (a "Judge Ito" would be a nightmare); but also DoJ having a firm resolve to limit the charges and evidence. In that context, Andy suggests this (his lede paragraph):

This summer, I theorized that Attorney General Eric Holder — and his boss — had a hidden agenda in ordering a re-investigation of the CIA for six-year-old alleged interrogation excesses that had already been scrutinized by non-partisan DOJ prosecutors who had found no basis for prosecution. The continuing investigations of Bush-era counterterrorism policies (i.e., the policies that kept us safe from more domestic terror attacks), coupled with the Holder Justice Department's obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the "reckoning" that he and Obama promised during the 2008 campaign. It would be too politically explosive for Obama/Holder to do the dirty work of charging Bush administration officials; but as new revelations from investigations and declassifications are churned out, Leftist lawyers use them to urge European and international tribunals to bring "torture" and "war crimes" indictments. Thus, administration cooperation gives Obama's base the reckoning it demands but Obama gets to deny responsibility for any actual prosecutions.

Would a US President and AG do something like this, which would stand a good probability of getting good people killed, and which would stand a good chance of ripping this country apart ? I'd prefer to think not - and I'll leave it at that.

The old adage up here is not to walk across the ice covering the Misery River cuz there's a lot of thin spots you can't see. Good way to get yourself drowned (almost happened to my dad, who knew that river better than anyone). This unnecessary change in venue seems to carry the same risk, even positing the very best motives on the part of the Obama administration.

PS: the UK trial judge's decision is interesting and timely. We'll have to see how it holds up on appeal. Thank you, David, for both links.