War Without a Declaration

Joe,

While I agree with most of what you write, I must quibble with a couple of things. Firstly, you draw a distinction between acts of terrorism that occurred in occupied territory and acts of terrorism that happen in unoccupied territory. While it is correct that the United States is not occupied territory, I am not sure that paradigm fits with non-nation state actors such as al-Qaeda. Surely suspected terrorists detained in Afghanistan are in occupied territory. (Occupied by both NATO and the Taliban, perhaps.) But this rule leaves open terrorists arrested elsewhere, outside the United States. I think the more useful distinction is between uniformed members of a nation-state’s military who might commit an act of terrorism and non-state actors like al-Qaeda and their ilk. While it would be perfectly clear that a military tribunal would be appropriate, like the Nuremberg trials for example, for uniformed forces, I think it is also equally as clear that al-Qaeda members should be tried in civilian courts. It is the only legal framework that fits their crimes and status.

After disagreeing you on that point, I would like to strike a more conciliatory tone and agree whole heartily with what you say in your third to last paragraph. I believe it was a mistake of the Bush administration to not ask Congress to pass an act of war. With out that, as you correctly point out, detainees must be tried in civilian courts. It was only in 2008, after nearly a decade of active combat, that the administration sought for Congress to “explicitly declare a state of armed conflict with al-Qaeda” (Mikkelsen). It was only after mounting legal losses, where the Supreme Court began chipping away at the military tribunals, did the Department of Justice become interested in a formal act of war. If they had asked immediately after the September 11^th attack, they surely would have gotten the resolution. Instead, they squandered that opportunity.

Works Cited

Mikkelsen, Randall. “Bush law chief seeks conflict declaration on Qaeda.” Reuters. 21 July 2008. 08 Febuary 2010.

The big picture

I think we need to take a look at just what terrorism and war crimes are. There are many acts that fall under the definition of terrorism. The definition of terrorism under U.S. Code merely calls it any violent or dangerous act that violates a criminal law of the United States with the intention of intimidating the public, influencing government policy, or affects the conduct of the government. In the definition itself, it calls terrorism a criminal matter. Terrorism does not necessarily send a message of hate to the entire nation. It can be directed at one specific group. The Army of God group is a good example. According to information found on the National Abortion Federation’s website, they primarily target abortion clinics and any doctor who is willing to perform an abortion, and have even said that they will do anything necessary to prevent abortions from happening. They have bombed clinics and offices, sent numerous death threats to doctors, and have kidnapped doctors. This certainly is an act of terrorism, but does not necessarily strike fear into the heart of every man, woman, and child in America. However, it would be unnecessary to put these people on trial in front of a military tribunal. They are breaking civilian laws.

War Crimes, however, are only violations of international protocol in occupied territory, according to The Constitution Of The International Military Tribunal. Even the 9/11 Attack cannot be considered a war crime under this definition. The only way terrorism could be looked at, as a war crime would be if the terrorist act was organized and carried out by the military or civilians of a nation occupying another nation in that nation. As far as I am aware, no one is currently occupying the United States. There needs to be some sort of official armed conflict. And while you could argue that there is now armed conflict, our government is still reluctant to call it a war, and it didn’t exist when the 9/11 attack happened. At least not in the capacity it is now. And we are not the occupied nation. In fact, many countries seem to think that what our government is currently doing to the Guantanamo detainees, among many other examples, is a war crime (Clark).

On to the issue about whether civilian courts could really handle terrorist cases, I think civilians would be the best way to deal with terrorists. If the acts were aimed at the entire public, it would make sense to have the public decide on the guilt or innocence of the parties in question. I will agree that our legal system is not even approaching a point where it can look down the road and see perfection, but I think it is functioning well enough to find terrorists guilty. Of course, there would have to be some evidence to prove that the people on trial were responsible for whatever they’re being accused of. A military tribunal, especially with the leniency our government is putting on necessary evidence, may ignore the need for real proof and just condemn anyone who comes across the bench.

Also, there is a prerequisite that, for a US military tribunal to be used in a situation like this, we would need to be under an official declaration of war. We are under no such declaration, and because of that, we would be going against our own Constitution. It does not matter if these people attacked our nation; they still have rights that are guaranteed. The Supreme Court almost always rules that anyone on trial in America, whether they are citizens or not, are entitled to due process. In fact, a military tribunal has not been used to try a terrorist since World War II. (Napolitano). We would be going against the values our country was founded on by denying these people a fair trial in a civilian court. This ties in to the possibility that the U.S. is just as guilty of any war crimes as anyone we are holding for trial in Guantanamo Bay.

In addition to these things, I just do not see how trying terrorists in civilian courts would expose any part of our political system that is not already out in the open. We are not exactly secretive about how our legal system works, and they would not be discussing any changes to our national policies during the actual trial. The safety of our nation is important, but will not be at risk due to one of these trials. Anyone with access to the Internet, which is a pretty big portion of the world’s population, can find oodles of information regarding our country’s legal system and political processes. Just typing “U.S. government” into google yields more than 90 million results. Granted, a lot of those websites are not reliable, but the first result in the official website for the United States Government. I do not think people would learn anything else in a trial.

All the signs seem to suggest that civilian courts would be fully capable of trying terrorists. It is a Constitutional right for anyone being tried in America to have a speedy and fair trial. Terrorism, in and of itself, is not a war crime unless very specific guidelines are met. An official declaration of war is required for a military tribunal to be used to try non-U.S. citizens, and there is no such declaration. We have an established legal system that is fully equipped to deal with the crimes associated with terrorism, even if the scale is larger than your average murder or kidnapping. Exposing a foreign terrorist to a civilian court would not expose any important bits of information about our legal system or political system and would not pose a threat to our national safety. Ultimately, it would just be a gross violation of human rights, and we, as Americans, should not support any act that would violate the rights of any person.

Works Cited:

18 USC CHAPTER 118 - WAR CRIMES. Web. 6 Feb. 2010.

“ANTI-ABORTION EXTREMISTS/The Army Of God and Justifiable Homicide.” National Abortion Federation. Web. 6 Feb 2010.

Clark, Ramsey. “WAR CRIMES: A Report on United States War Crimes Against Iraq to the Commission of Inquiry for the International War Crimes Tribunal.” Deoxy. Web. 6 Feb. 2010.

“Definition of a War Crime.” War Crimes TV. Web. 6 Feb. 2010.

“How the USA PATRIOT Act redefines ‘Domestic Terrorism.’” ACLU. 6 Dec. 2002. Web. 6 Feb. 2010.

Napolitano, Andrew P. “The case against military tribunals.” Los Angeles Times. Web. 6 Feb. 2010.

Why Should Terrorists in Civilian Courts be a Concern?

Before I get into reasons why terrorists should be kept far away from civilian courts (and civilians in general), I would like to quickly talk about Guantanamo Bay.

Many people have a picture of this facility in their heads, but that's all it is, a picture. In reality, Guantanamo Bay is more resort-like than an inhumane environment. Columnist Charles Krauthammer was quoted to have said, "If al Qaeda defeats the United States, you rule the world out of Mecca. If you lose, you end up on a tropical island, Bermuda shorts, holding a daiquiri in your hand." (Schock and Roe). This is an educated man who has seen what Guantanamo looks like.

A story in the New York Times stated that according to a Pentagon document, "about 1 in 7 of the 534 prisoners already transferred abroad from the detention center are engaged in terrorism or militant activity, according to administration officials" (Schock and Roe). It looks to me that Guantanomo Bay is a smart, safe, and humane place to keep people involved in terrorism.

President Obama initially wanted to have terrorist trials in New York City. Upon hearing this, many New Yorkers became afraid, angry, and felt mocked that these war criminals would be brought back into the city they themselves attacked. This is not right. The terrorists should be as far away as possible from the civilians they have outrageously harmed. Why should this ever be allowed to happen? Think about it. If you lived in New York and were terrified at the sight of the hi-jacked planes flying in low, ran in panic along side hundreds of your neighbors, or lost loved ones as a result of this act of terrorism, would you want one of the terrorists involved in this terrible act to come to the same place they attacked? This is what the majority of New Yorkers are saying. They are bewildered that someone would even think of bringing the terrorists into the city. (Katz). Have they not suffered enough?

Another thing to think about is this: Who is going to pay for all the security needed to transport the terrorist suspects throughout the nation and keep every one as safe as possible during the trials? I have found an article that states that tax payers would have to pay a total of S200 million a year to pay for security for the trials of Khalid Shaikh Mohammed and the other terrorist suspects connected with the 9/11 massacre. (Baker). Yes, if the terrorists are tried among the people, it is the people who will pay for it (in more ways than one I might add).

Non-citizen terrorists to not need to be given the "rights" under the constitution. They are war criminals that should not be treated lightly. Personally, I do not think some one who has planned to blow up a bomb in attempts to kill United States citizens should have the right to plead the 5th ammendment. A citizen of the United States has their rights but a non-citizen who sends a message of violence and of war should be treated differently.

The judges of civilian courts have been trained to judge civilians. Those involved in military tribunals have been trained to deal with war criminals. Why would we not want to leave terrorist suspects in the hands of our military? This seems like the most logical, and safest approach.

Although I do believe military tribunals should be conducted in a humane way, they may need to be more forceful than a civilian court has bounds to be in order to get to the truth. How are we supposed to attempt to forsee terrorist plans when we politely ask them in a civilian court? These are serious matters that come down to life, and death.

Do we want the safety of our citizens to be in jeopardy so a terrorist can have his right to be silent and have a lawyer attempt to get him set free? And what would happen if a terrorist were set free in the middle of a large city like New York. Would you feel comfortable knowing there is a terrorist suspect who managed to get by our legal system as your next door neighbor?

Why should we put visions of terrorist "rights" in front of what is best for our nation? I think sometimes we forget how fortunate we are to live in this country. Our country was fought for. The founding fathers knew that there were sacrifices to be made in war. Our nation currently is at war. Certain terrorists have declared war on our country, and when we detain them, we want to give them a chance to hold on to the rights meant for United States citizens? I see this as our rights as United States citizens spat upon.

Hopefully I have made my points clear. I am writing in what I think is in the best interest of our great country.

Works Cited:

Baker, Al. "Security for Terrorism Trials Estimated at S200 Million a Year". 1/6/2010:

Katz, Celeste. "Residents Protest Holding 9/11 Terror Trial of Khalid Shaikh Mohammed in New York". 2/6/2010:

Schock , Aaron, and Phil Roe. "Never Meant As a Door to the U.S.". 6/25/2009:

Why Not Use the System We Already Have In Place?

Barak,

You content that procecuting terrorist suspects in civilian courts would “would be a mockery to our system.” I must vigoursly disagree. No less a source than the Supreme Court of the United States of America finds that it is proper for persons being held by the United States governemnt have due process. In the Court’s 2004 case Hamdi v. Rumsfeld, Justice Sandra Day O'Connor writing for the plurality wrote “a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved” (Hamdi). In a subseguent case, Hamdan v. Rumsfeld, Justice John Paul Stevens wrote that military commsions were “in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention” since the defendants were not aforded their due proccess rights because they could neither see nor hear the evidence being presneted against them (Hamdan). In al-Marri v. Spagone, the Department of Justice had to move Ali Saleh Kahlah al-Marri, who has been held with out trial since December 2001, from military custody to the custody of the Attorney General to avoid a Court ruling that would demanded he be released outright (Johnston).

In the intervening years since the September 11^th attacks, there have been mountains of case law piled up in an attempt to figure our a whole new system in to which to serve justice to these individuals. What is making a mockery of our system is to ignore the established civilian courts. To ignore courts that have very efficient, well documented, and fair rules is not making the country safer. Instead of trying to reinvent the wheel, lets use the finest legal system the world has ever known to bring these criminals to justice.

Works Cited

Hamdan v. Rumsfeld. No. 548 U.S. 557. Supreme Court of the United States. 29 June 2006.

Hamdi v. Rumsfeld. No. 542 U.S. 507. Supreme Court of the United Staes. 28 June 2004.

Johnston, David. “U.S. Will Give Qaeda Suspect a Civilian Trial.” New York Times [New York] 26 February 2009. 06 February 2010.

We Are Already Using the Civilian Court System

Barak,

I agree with you that terrorists are criminals, and I understand your very real fear for the safety of your fellow countrymen, but I must disagree with you that terrorists should not be tried in civilian courts. Although high profile terrorists like Khalid Sheikh Mohammed and Umar Farouk Abdulmutallab (the so-called “Christmas Day Bomber”) have brought the media spotlight on the issue, terrorist suspects being tried in federal civilian courts is nothing new.

In fact, from 2001 to 2009 there have been 828 terrorists prosecutions, made up of 337 cases and 804 individuals (Center on Law and Security 1). We have prosecuted and imprisoned many high profile terrorists in the past. Terry Nichols, Timothy McVeigh, Theodore Kaczynski, John Allen Muhammad and Lee Boyd Malvo just to name a few. All of these men committed violent terrorist attacks on the United States and all were convicted, efficiently, in federal civilian courts.

In the last eight years, federal prosecutors have had nearly a 9 in 10 success rate at seeking convictions in civilian courts. In total, only 1.7% of people charged and tried in court for terrorism were acquitted (1-2). We have demonstrated that we are more than capable of prosecuting and convicting terrorists in civilian court. We should not let a few high profile cases sway us from a system that is working.

Works Cited

Center on Law and Security. Terrorist Trial Report Card: Sepember 11, 2001 - Sepember 11, 2009. New York University School of Law. New York: New York University, n.d.

Terrorists are War Criminals

Why do I believe terrorists should be kept out of civilian courts?

First and foremost, I am concerned about the safety of our nation. What if there was a legal flaw in our political system? And what if the terrorists were declared innocent? When I know someone has committed an act of terrorism, I think they have already brought the judgment on themselves.

There is a difference between a civilian crime and an act of terrorism. In a civilian crime, a few citizens may be affected and others threatened. However, in a single crime whether it is as extreme as a murder, the whole nation is never threatened. In this case, the civilian has their right to be tried in a fair, civilian court. In an act of terrorism, a threatening message of hate is sent to the entire nation. Should we place the safety of our entire nation in the hands of a single civilian court?

I see that the opposing side of this arguments states that we should provide a fair trial for everyone. The way I see it, an every-day criminal has the right to be held in a civilian court. A person who commits an act of terrorism is no longer an every-day criminal, but has sent a message of war. A war criminal should not be tried in a civilian court. A war criminal should not even have the chance to interact with the civilians living in the country he has attacked. I agree we should set an example for other nations by our fair, legal system. However, we should set the example by the way we try our own citizens. Trying terrorists in a civilian court would be a mockery to our system and would also risk exposing our political processes. I do not say we should jump the gun and execute possible terrorists without reason or interrogation. What I do say is that we leave war criminals to the military who have been trained to deal with issues of war.

Terrorist Should Face Justice

Barak & Joe,

It is my contention that none of the terrorists held in detention at the Guantánamo Bay Naval Base should be held indefinitely without trial, and that they should be put on trial in civilian criminal courts. It is a violation of not only our laws, but as importantly our ideals, to hold these men without trail, and that a trial before a military tribunal is not really a trial at all.

Indefinite detention is a violation of a person’s human rights. Any number of the detainees being held at Guantánamo Bay were seized on the battle field in the heat of combat. As anyone familiar with the combat theater understands, it often can be controlled chaos. It is understandable that soldiers and marines would apprehend people they deem a threat, but afterwards we need to sort out which individuals are actual combatants and which individuals were simply in the wrong place at the wrong time. Detainees who were caught committing acts of war against the United States should be punished appropriately, and those who were, in hindsight, incorrectly apprehended should be repatriated to their countries. No one should be allowed to languish in prison without the opportunity to face justice.