EDITORIAL: Equal in the eyes of the law
“When the United States was formed, Alexander Hamilton reiterated a trenchant warning that ‘the practice of arbitrary imprisonments, [has] been, in all ages, the favorite and most formidable instrument of tyranny.’ His warning remains relevant today, and the consequences of arbitrary detention, whether or not tyrannical in purpose, still threaten liberty and democratic values.” - Jordan J. Paust, Law Foundation Professor at University of Houston
On Friday, Attorney General Eric Holder announced that the U.S. government will pursue a prosecution in federal court against five detainees who are currently charged in military commissions with conspiring to commit the Sept. 11, 2001, terror attacks: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi.
Pundits pounced on this news item claiming the attorney general was risking national security with these trials and their location.
Federal courts have locked up more than 200 people “who have a history of or nexus to international terrorism” in Bureau of Prisons facilities.
Zacarias Moussaoui, the 20th hijacker, was tried and sentenced in 2006 to life in prison without the possibility of release in the United States. No one brought up national security at that time.
Former New York City Mayor Rudy Guiliani even praised those trials back in 2006.
“It does demonstrate that we can give people a fair trial, that we are exactly what we say we are,“ Guiliani said. “We are a nation of law … I think he’s going to be a symbol of American justice.“
President Barack Obama’s pledge to close Guantanamo Bay prison was about reframing America as a pillar of justice in the eyes of the world. These trials are a part of that.
How can we encourage other countries to be more democratic, more like us, if we don’t even follow our own Constitution? Having these trials shows that we are confident in our justice system.
Are there risks to these trials?
Yes. Did the investigators miss key evidence that may lead to other suspects? Do they have all the evidence? Did they obtain that evidence in an ethical way? All of these questions are relevant and explored before any prosecutor brings a case before the courts.
On the location argument, the U.S. Constitution is fairly clear. Trials should be held in the state where the crimes have been committed. Naturally, these trials would take place in New York where the majority of the crimes were perpetrated.
By law, no one can be held indefinitely without a trial, so one needs to be held.
Some say the military tribunal system would best suit this matter.
Holder explained on Friday that he discussed the decision to proceed in federal courts or military commissions “based on a protocol that the Departments of Justice and Defense developed and that was announced in July.” He consulted with the Secretary of Defense too.
“It is important that we be able to use every forum possible to hold terrorists accountable for their actions. Just as a sustained campaign against terrorism requires a combination of intelligence, law enforcement and military operations, so must our legal efforts to bring terrorists to justice involve both federal courts and reformed military commissions,” Holder said.
National security was considered, and both the Departments of Justice and Defense agreed a trial in federal court would be the best option in Khalid Sheikh Mohammed’s case.
Judicial power in this country extends to controversies involving citizens and non-citizens alike. The Fourteenth Amendment to the Constitution says no “person” should be denied due process, and all have “equal protection of the laws,” not just citizens.
Equal protection under the law is paramount to maintaining our democracy.
If not, what will determine who is allowed to use the law, who is above it or who is below it? Money? Power? Influence?
You may be the next person seen as “unfit” for U.S. legal protection if you don’t know the right people or pay the right people the right amount of money. Is that how our country is supposed to work?
When everyone is not equal in the eyes of the law, we should all be concerned about the tyranny that might bring. It is not just an injustice to that human being but to the foundation of America.
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Obama and Holder’s next policy:
All US troops are to read Miranda rights to all people captured and detained while fighting.
To search and buildings, they must also obtain a search warrant from the NY courts (since apparently they have jurisdiction in the middle east)
All CIA/FBI agents must provide a lawyer to every terrorist that they intend to interview (please note that Mr. O has decided the work interrogate carries a negative connotation and is no longer to be used)
Expect MSNBC to tell you how wonderful this new policy is!
But here in the real world… our soldiers a fighting a WAR, as such the rules of WAR should be followed. Military tribunals are for WARTIME, trials in downtown NY are for civilian issues.
Mary Surratt was considered part of a spy ring that operated with permission of the South at the time, as were the others. In a time of war they fall under military control. As for the uniform policy goes, I speak of it because we as a nation have rules that do apply to our soldiers. None of our soldiers are allowed to operate without certain identifiers such as U.S. Army, USMC, or U.S. Navy stamped somewhere in veiw on their uniforms. Even Black ops have rules that apply here. If they are caught without them in combat they can be considered mercs or less, terrorist or spies and can be killed on the spot without trial. Remember, I said could be. It depends on the country and the laws that they live by. Not everyone uses the Geniva Convention and it did not apply during Mary’s time. Its not all cut and dry even in our own house. So it does make a difference in this area. Again I say this because these are strict rules that govern how we as American Soldiers have to follow. I personally care very little what rule is applied to these people that killed so many Americans just trying to go about their daily lives.
Dharmabumiii,
Then how do you explain the case of Mary Surratt? A US citizen arrested on US soil was tried before a military tribunal and hanged at Fort McNair for conspiring with John Wilkes Booth?
How about after these guys get their trial we hang them off the illuminated antenna on top of Freedom Tower?
(If found ‘innocent’, we just substitute the defense lawyers.)
Dharmabumiii ... I would disagree with your stance on this. They are acting in league with an organized military force, a force with specific command structure. They were in league with the strategic planners who lead that organized force. Their “uniforms” are not traditional, but I do not see how you can differentiate them from the Taliban/Al-Queda forces that fight in Afghanistan, who fought in Iraq, and who are massed in Iran.
All of this will blow up when they’re acquited. What??? you say ... they’ll never be found innocent!! I’d say the chances are good they will be, because the burden of proof differs in a civil court vs a military tribunal. Let’s see Obama squirm and dance when these terrorists use a slick lawyer in the wrong jurisdiction to escape justice.
Oh, I must be mistaken here. Obama said in China that they would be found guilty. Then he back-pedaled to say, they’ll get a fair trial. How does he know they’ll be found guilty, but he also knows they’ll receive a fair trial? A fair trial by it’s nature has the capacity to find the defendants innocent.
One more question. If Bin Laden is captured, how will he be tried?
These men are not being put on trial by the military because none of the people represent a uniformed service of any specific country. So they do not fall under the Geniva Convention. But had they been capitured by the military in the act they could have been treated as a spy would have. But since they were arrested by the FBI they fall under our normal laws.
Minoru Genda, who planned the attack on Pearl Harbor, a naval base on U.S. soil, when America was at peace, and killed nearly as many Americans as the Sept. 11 hijackers, was not brought here for trial. He was an enemy combatant under the Geneva Conventions and treated as such.
When Maj. Andre, the British spy and collaborator of Benedict Arnold, was captured, he got a military tribunal, after which he was hanged. When Gen. Andrew Jackson captured two British subjects in Spanish Florida aiding renegade Indians, Jackson had both tried and hanged on the spot.
Enemy soldiers who commit atrocities are not sent to the United States for trial. Under the Geneva Conventions, soldiers who commit atrocities are shot when caught.
When and where did Khalid Sheikh Mohammed acquire his right to a trial by a jury of his peers in a U.S. court?
When John Wilkes Booth shot Abraham Lincoln, alleged collaborators like Mary Surratt were tried before a military tribunal and hanged at Fort McNair. When eight German saboteurs were caught in 1942 after being put ashore by U-boat, they were tried in secret before a military commission and executed, with the approval of the Supreme Court. What makes KSM special?
This editorial was very enlightening. I didn’t realize Quetta Pakistan was under the jurisdiction of the State of New York or The United States of America.
These monsters are prisoners of war and should be tried by Military Tribunal. It is impossible to afford a prisoner of war the same rights as a citizen of the US (warrants, miranda rights, etc.). Also, do not write more in the constitution than is actually there. The Fourteenth amendment is speaking specifically abou the rights of citizens or people within the territory of the United States NOT POW’s.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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