Are Military Tribunals Fair?

Originally written for Pajama’s Media.

After years of litigation a verdict was finally reached for Salim Hamdan, Osama Bin Laden’s driver and detainee accused of war crimes. While cleared of conspiracy he was convicted on multiple counts of material support for terrorism. Legal groups like the ACLU and the Center for Constitutional Rights quickly criticized the ruling. Certain media elements were not far behind. Much of the criticism was understandable, and much was distorted through the lens of bias. Most of the criticism ended up being deflated after a surprisingly lenient sentence of five and a half years, including five years and a month already served. This sentence fell short of the thirty years to life the prosecutors wanted. Even one of Salim’s defense attorneys admitted the verdict was fair and just. However, a fair outcome doesn’t necessarily reflect a fair process. So, are the military tribunals for the Guantanamo detainees fair? To answer this question we must critically look at both sides of the argument, the details of the process itself, and understand how we arrived at this point.

When war has been declared the United States has made use of military tribunals to try captured enemies outside the scope of conventional civil and criminal matters, historically providing a trial for combatants acting in violation to the Rules of War. The Geneva Conventions established what most countries have adopted as the international standard regarding such rules.

The perception pushed by some is that combatants held at Guantanamo deserve protection under the provisions provided by the Geneva Convention. Others argued that the essence of the Convention is the distinction between lawful combatants and civilians and that terrorists violate this by being non-uniformed, negating this distinction and endangering innocent civilians. This argument applies that Prisoner of War status and the rights that come with that should not extend to those that violate its rules. The Supreme Court settled this argument in 2006 in favor of extending many of these rights to captured combatants held at Guantanamo. This decision was Hamdan vs. Rumsfeld which extended certain rights to the detainees and placed limits on the authority of the executive branch. This decision was the catalyst for Congress to pass the Military Commissions Act of 2006 authorizing the establishment of military commissions within the parameters set by the Supreme Court.

The 5-4 ruling in Boumediene vs. Bush threw another wrench into the efforts to prosecute prisoners at Guantanamo by determining that habeas corpus rights extend to these prisoners and that the Military Commissions Act unconstitutionally suspended those rights. Defense lawyers used this ruling in an attempt to delay the military trial of Salim Hamdan, but were unsuccessful in their argument that the procedures violated certain constitutional rights. District Judge James Robertson ruled against delaying the trial on the grounds that these arguments could be raised on appeal after the completion of the trial. How this ruling’s precedent will affect future proceedings against Guantanamo detainees is yet to be seen.

Determining whether the military commission process is fair requires looking at several factors. Hamdan’s trial served as a test case for the government prosecutors and the detainee defense lawyers. Behind Hamdan there are around 80 other Guantanamo detainees, including five alleged September 11th plotters, the Pentagon intends to try before the commissions. It is important to observe Hamdan’s case to determine the probability of fairness in future military commissions because of the precedents it has set.

Most of the key criticisms in Hamdan’s case were addressed. The concern that evidence obtained through coercive interrogation would be used was alleviated when the judge excluded statements obtained from Hamdan prior to his arrival at Guantanamo. Concerns remained over allowed statements obtained after his arrival due to defense allegations they were obtained through abusive procedures. However, no convincing evidence was presented to prove these allegations. Defense attorneys were also given adequate opportunity and access to challenge secret evidence. Many other points exist in favor of the fairness in this trial including the fact that Hamdan’s conviction is automatically appealed to a military appellate court. That court can reduce, but cannot increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well. However, many legal concerns remain such as the question of whether his prosecution violated the Constitution’s prohibition of ex post facto laws. Concerns addressed in Hamdan’s case do not guarantee future trials will be addressed similarly, but recognized respect of precedent makes it probable.

In my opinion, Salim Hamdan received a fair trial and a lenient but just sentencing. The system in place for future military trials is still not perfect, but provides more protections and rights for captured enemy combatants than ever provided in history. Certain elements definitely need to be addressed while others are yet to be determined. The legal journey to refine the process has only begun.

Author – Jay Stephenson of Stop the ACLU

This has been a production of the Stop the ACLU Blogburst

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One Million Names? – The Stop the ACLU Blogburst 7/17/08

Posted By Kender @ Stop the ACLU

Updated and bumped for a while: ACLU Errs in List of Names. I told you so.

The ACLU has claimed that the Terrorist Watch List has reached one million names. Aside from such blatant out and out lying which we have come to expect from the American Communists Lawyers Union, and fear mongering, which we also expect, is the fact that mathematically so few Americans are on this list as to make this almost a non-issue.

As one can see from the graphic here (click this) the actual number of people on the list is 60% less than the ACLU claim. What SHOULD be shouted from the rooftops is the following bit from this report;

Between the TSC’s inception in December 2003 and May 2007, the TSC
documented more than 99,000 encounters for which its call center was contacted. TSC data shows that 53.4 percent of these calls were determined to be a positive match to a terrorist watchlist identity in the TSDB. In
cases, the TSC contacted the FBI, which is responsible for initiating any necessary law enforcement action. In 43.4 percent of these calls, it
determined that the encountered individual did not match the watchlisted identity, and the TSC Call Center staff instructed the frontline screening agent of this resolution. In the remaining 3.2 percent of the encounters,
TSC Call Center staff could not definitively determine if the match was positive or negative and therefore forwarded these calls to the FBI.

In other words, OVER HALF of the calls from watch list hits were matches. Three point two percent could not be determined whether it was a terrorist or not. Two million people fly in the U.S. a day. Three percent of two million people is SIXTY THOUSAND PEOPLE. How many terrorist attacks have been thwarted because of this list?

Given the time frame of the calls that is over 3.1 billion travelers over the time frame at 2 million travelers a day. Three percent of 3 billion. what is that? like NINETY MILLION PEOPLE?

Of course the actual number of people held up by this list is much lower than sixty thousand a day, as most folks that travel in the U.S are American citizens and the actual number of Americans on this list is much lower than 400 thousand., so much lower in fact that given that 95% of the people on it aren’t even Americans and we get a number of about 20 thousand people on it.

Twenty thousand people on the list out of three hundred million? By my math that is well under one one hundredth of a percent to end up on this list. Seems to me to be a very small price to pay for safety in air travel. Seems to me that such a small number of AMERICAN citizens on a list that the AMERICAN Civil liberties Union is lying about wouldn’t really be a cause for concern for most right thinking people, but we aren’t speaking of right thinking people here, we’re discussing the ACLU and their lies.

The only other thing that bothers me is the fact that the AMERICAN civil liberties union is so concerned with the civil liberties of people that aren’t American citizens, aren’t covered by our laws and don’t have a damned bit of standing in our legal system.

But then, the ACLU has a long standing history of aiding and abetting our enemies both foreign and domestic and we certainly don’t expect them to start acting like American Patriots now.

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Stop The ACLU BlogBurst: ACLU Condemns Senate FISA Vote

[Jay] I apologize for being so late about writing on this. My modem went bad, and our service provider had to come out and have a tech replace it.

I actually watched Bush’s speech this morning at the gym on the treadmill. I was glad to see that he was playing hardball with the House on this, and that part of the legislation went to protect third party companies that participate patriotically in protecting America from insane lawsuits. Most of these lawsuits, of course, can be traced back to the ACLU, so it is no surprise that they were quite upset when the Senate passed this legislation.

The American Civil Liberties Union today slammed the U.S. Senate for not only authorizing the president’s warrantless wiretapping program but for granting immunity to his accomplices, the telecommunications companies. By a vote of 68 to 29, the Senate passed legislation amending and, in the end, gutting the Foreign Intelligence Surveillance Act (FISA). The bill now must be conferenced with the House’s version of the bill – which contains no immunity and stricter Fourth Amendment protections – by February 16th, the recently extended expiration date of the equally disastrous Protect America Act.

The ACLU go on to give “kudos” to Feingold and Dodd for trying to make the bill more “palatable”. Of course the ACLU claim to be upset over “privacy” issues, yet we know their hypocrisy on this issue. No doubt they are more upset by the protection of telecom companies from their million dollar lawsuits.

Meanwhile Bush is playing hardball on this important legislation.

A main sticking point is a provision included in the Senate legislation that would provide retroactive immunity to telecommunications companies that cooperated with the government. Bush said the companies “won’t help protect America” without such liability protection.

The president stated that terrorists must communicate with each other and exchange information to carry out their plans and argued that enlisting the help of telecommunications companies is crucial in uncovering their activities.

Indeed, this has slipped the grasp of the minds at the ACLU. They are suggesting to the House to let the Protect America Act expire.

The ACLU exhorts members of the House to let the unconstitutional Protect America Act expire and stand strong on not letting the phone companies off the hook for law breaking.

I agree with John Boehner’s statement:

“Our terrorist surveillance laws are critical to keeping our nation safe from attack, and until we modernize them, our intelligence officials will be at a significant disadvantage against the terrorists who threaten our way of life. The Senate-passed bill would modernize these laws in the long-term so intelligence officials – not government lawyers – are entrusted to protect our national security. President Bush has said he will not sign another temporary measure that only kicks the can farther down the road, and I stand behind that decision.

“The Majority has played games with FISA modernization for months on end, and today, those games must end. Delaying action on a long-term modernization bill puts our national security at risk. It’s time for House Democratic leaders to do the right thing and allow the House to consider the Senate’s bipartisan bill so President Bush can sign it into law.”

My Pet Jawa points out that Obama just may be the ACLU’s candidate of choice…the dangerous kind.
Michelle Malkin has a great roundup on this.

Barrack Obama’s “change” is more than a silly slogan, it’s dangerous. For Obama “change” means moving American to a pre-9/11 stance where law enforcement’s hands were tied. 9/11 was not a failure of individuals–Bill Clinton and George W. Bush are not to personally to blame–it was systemic failure. Barrack Obama wants to take us back to that system that failed us.

WSJ:

It says something about his national security world view, or his callowness, that Mr. Obama would vote to punish private companies that even the bipartisan Senate Intelligence Committee said had “acted in good faith.” Had Senator Obama prevailed, a President Obama might well have been told “no way” when he asked private Americans to help his Administration fight terrorists. Mr. Obama also voted against the overall bill, putting him in MoveOn.org territory.

AJ Strata breaks it down, and everything he says of Obama can be applied to the ACLU:

This upside down world, where terrorists who make it to our shores are then considered untouchable because of some bizarre fear of a new Nixon abuse of power, is what Obama voted FOR! Obama wants to give terrorists carte blanche freedom to communicate with their agents in the US once they get here. What is so wrong with the current system? Why do NSA leads have to be relegated back to some kind of impure status simply because the NSA detected them and not the FBI (who doesn’t listen in on our enemies overseas)? What is wrong with the leads being passed to the FBI to assess, which then takes those which show to be troubling to the FIS Court for full surveillance? This program has stopped attacks and saved lives, and yet “Big Bird” Obama and his Sesame Street view that ‘we can all just hold hands and get along’ is opposed to it and wants to expose us to unnecessary risk?

And this is EXACTLY what Osama wants us to do, lower our guard again so he can hit us hard and show the Muslim world he is still relevant and not on the brink of being destroyed. Even Hillary has not been this suicidally delusional about the threat to America. The enemy is not the phone company Big Bird, it is all those Jihadis working to die a glorious death by taking out thousands of Americans in one blow. And this is why Obama is a naive and unwitting ally of Osama, as are most Surrendercrats.

Michelle Malkin has a great roundup.

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