Romeo13 on June 11, 2009 at 3:54 PM

A real debate, with facts, not feelings, and then re-convene the signatories of Geneva to do the same, and then update Geneva. While legally approved to deal with bandits, brigands, saboteurs and terrorists in the classic sense, present-day circumstances require Geneva to address the specifics of handling cross-national non-state terrorist organizations. Settle the law enforcement piecemeal approach vis-a-vis the military operations approach once and for all.

Either we are at war (the terrorists seem to think so) or we are going to spend time arresting, Mirandizing, and prosecuting terrorists picked up outside our national boundaries for acts committed outside our national boundaries and thus open up further yet another can of worms. All of which negates the overall effectiveness of our own law enforcement, not to mention the rule of law, and Constitutionality, and negates decades of hard hammering to work out international agreements to face common threats.

Winging it, Obama style, just doesn’t cut it.

“…that would allow for debate… which I don’t think anyone in Washington really wants.”

Romeo13 on June 11, 2009 at 3:54 PM

Bingo!! Dead on Target!!

rbj on June 11, 2009 at 2:35 PM

The whole debate, IMO, and its one that is playing out in the court, but not with our policy makers, is does US Civil law have worldwide jurisdiction? And how does that play into our Constitution and court system.

This is actualy somthing that CONGRESS needs to be involved with… a debate we as Americans need to have… and should not be left up to the Courts, or to the changing whims of succesive Administrations.

We should also be in the forefront of an updating of the Geneva Conventions, to figure out what is OK when fighting Non State groups, and asymetrical war…

But then again… that would allow for debate… which I don’t think anyone in Washington really wants.

I was and still am uneasy about the whole thing, invading to arrest him. Not necessarily opposed, but it is unsettling to basically grab the leader of another country. However, that was a clear cut case of conspiracy to sell drugs.(basically, I’m pro legalization).
rbj on June 11, 2009 at 3:19 PM

I had and have exactly the same reservations. (also, basically pro-legalization)

Like I said there is no perfect solution. I can propose hypotheticals that would demonstrate better my concerns and why I prefer civilian courts, but I think we understand each other so I’ll spare you.

Best.

If he does, it is only guesswork which Manhattan landmark will burst with explosive flames.Let’s say Ghailani, aided by Obama’s new buddies the Iranians, takes out the Brooklyn Battery Tunnel at rush hour with 5,000 dead. They should name the watery grave THE AHMED GHAILANI-BARACK OBAMA MEMORIAL UNDERWATER CEMETERY in honor of those responsible.

Not a quote from my 2:39 PM post.
coldwarrior on June 11, 2009 at 3:04 PM

Honest mistake. Was not attempting to misrepresent your quote.

I am still concerned about government influence and control in these matters. Which “rules of evidence” does not mitigate.

I cringe when I hear of US citizens being tried by military courts in other countries.

Were you opposed to his trial in a civilian court?

M_Laveau on June 11, 2009 at 2:39 PM

I was and still am uneasy about the whole thing, invading to arrest him. Not necessarily opposed, but it is unsettling to basically grab the leader of another country. However, that was a clear cut case of conspiracy to sell drugs.(basically, I’m pro legalization). That is a common criminal act. The attacks on our embassies were designed for political motives, not ordinary criminal ones (usually money, as in the Noriega case). Using violence against a nation for political reasons is war. Same as when Japan bombed Pearl Harbor.

The fact that these actors were not acting on behalf of a state (nor part of a recognized army) does muddy the waters. This is basically a sui generis situation, and I think international law & the law of war has to flesh this out more. But it is not common crime, these guys should not get the protection of the American criminal justice system. And hey, the military tribunals have released many detainees, not just the Uighurs. Some of whom have been killed or recaptured.

M_Laveau on June 11, 2009 at 3:01 PM

“Military trials are not show trials, they just have differing standards of proof & evidence. Valid evidence that doesn’t cross all the “t”s and dot all the “i”s for a civilian trial can get in in a military trial.”

Not a quote from my 2:39 PM post.

Actually, rules of evidence in a properly executed military trial under UCMJJ standards is actually far more attentive to the dotting of “i’s” and the crossing of “t’s” than in your average civilian courtroom setting.

Read up on your UCMJ Manual for Courts Martial.

Get back to me on that.

Military trials are not show trials, they just have differing standards of proof & evidence. Valid evidence that doesn’t cross all the “t”s and dot all the “i”s for a civilian trial can get in in a military trial.
coldwarrior on June 11, 2009 at 2:39 PM

I would only add that it still puts 100% control in the hands of the government. That is a major concern to me in principle.

Let’s not take other cases not directly involved with the embassy bombings to try to build a framework to cover all exigencies.
coldwarrior on June 11, 2009 at 2:39 PM

Fair enough. There simply is no perfect solution to these matters. One can find “slippery slope” arguments in any of these scenarios.

rbj on June 11, 2009 at 2:35 PM

Let’s not take other cases not directly involved with the embassy bombings to try to build a framework to cover all exigencies.

Four of the bombers of the Kenya and Tanzania embassies have been tired and convicted by Kenyan and Tanzanian courts already.

Had Ghailani actually made it into the embassy and detonated the bomb inside the embassy, then jurisditional issues would be far more clear.

But, having had four of his co-conspirators already brought to justice in the appropriate jurisdictions makes the claim that the US courts have jurisdictions a bit of a stretch.

This entire Ghailani episode, and that of the Uighurs, as well, seems to be nothing but an attempt by this Administration to make the problem go away, regardless of law, international treaty obligations or common sense.

Then there’s the whole Manuel Noriega thing, where he didn’t set foot in the US until brought here for trial after the military action.
rbj on June 11, 2009 at 2:35 PM

Were you opposed to his trial in a civilian court?

Romeo13 on June 11, 2009 at 2:08 PM

Jurisdictional issues have long been settled. The US did kidnap a Mexican drug dealer (during HW Bush’s term) from Mexico after he had killed a DEA agent (American citizen) in Mexico. SCOTUS said the kidnapping & trial were ok. Then there’s the whole Manuel Noriega thing, where he didn’t set foot in the US until brought here for trial after the military action.

Israel has kidnapped & brought to trial in Israel former Nazis.

Also, 4th Amendment doesn’t apply to non US citizens in other countries. U.S. v. Verdugo-Urquidez
494 U.S. 259

IIRC, AQ declared war on the US long before the embassy bombings, and basically an attack on an embassy is an act of war as you are attacking a foreign state. The bombs hit our embassy, that gives us jurisdiction. As it’s basically an act of war, military trial, not civilian. Military trials are not show trials, they just have differing standards of proof & evidence. Valid evidence that doesn’t cross all the “t”s and dot all the “i”s for a civilian trial can get in in a military trial.

Now, if Foopie gets a civilian trial here, I’m sure he wasn’t given his miranda rights so any interrogation will have to be thrown out.

If’n I was this guys lawyer (which I am not, but I did stay with a female lawyer in a Holiday Inn once)
Romeo13 on June 11, 2009 at 2:08 PM

Ha! ;)

Um, embassies are considered to be part of that nation’s soil. A British embassy is considered to be part of Britain. A US embassy is considered to be part of America.

Same with ships carrying a particular nation’s flag. If a murder were to occur on the Queen Elizabeth II (British flag) even if docked in NY harbor, the trial would take place in Britain.

rbj on June 11, 2009 at 1:43 PM

The problem here is that the bombs never made it onto the Embassys themselves… so even though there were deaths on the embassies the crimes were commited on and from Kenya.

This conspiracy was commited from Kenya, and done PRIOR to the War on Terror, so the War Powers Act was not activated against Al Q yet… which these guys were members of. Creates an Ex Post Facto problem… and jurisdiction problem.

If’n I was this guys lawyer (which I am not, but I did stay with a female lawyer in a Holiday Inn once) I’d attack this on Jurisdiction grounds (crimes were commited in Kenya)… Due Process grounds (gov can’t make up its mind as to how to try this case), Speedy Trial grounds (guys been in Jail for years even after indicted)…

And thats even before looking at any evidence or witnesses.

You are aware of Major John Andre?
rbj on June 11, 2009 at 1:38 PM

I am aware. Hard to compare the two as this case occurred seven years before the ratification of the US Constitution. And certainly many treaties have been passed since then in terms of international law. He was also clearly definable as a uniformed soldier in a time of war.

I understand your point, but I still don’t want to put that much power in the hand’s of the government. What are the safeguards against mistaken identity or wrongful prosecution?

I believe due process (trial by jury) to be the best and truest safeguard. Obviously we don’t agree, but I do respect your opinion. And appreciate the Andre reference.

Um, embassies are considered to be part of that nation’s soil. A British embassy is considered to be part of Britain. A US embassy is considered to be part of America.
rbj on June 11, 2009 at 1:43 PM

That was my assumption. Thanks.

I don’t know international law well enough to tell you if bombing a US embassy is considered outside US jurisdiction just because it is not on US soil.

Um, embassies are considered to be part of that nation’s soil. A British embassy is considered to be part of Britain. A US embassy is considered to be part of America.

Same with ships carrying a particular nation’s flag. If a murder were to occur on the Queen Elizabeth II (British flag) even if docked in NY harbor, the trial would take place in Britain.

They clearly believed in the concepts of “unalienable rights” and “due process.” I have faith in these concepts and don’t trust the government to dictate who is not entitled.

M_Laveau on June 11, 2009 at 12:53 PM

You are aware of Major John Andre? The British officer who conspired with Benedict Arnold to turn over the plans to West Point? Despite being an officer in the British Army, he was hanged as a spy, after a military trial. Not treated as a prisoner of war. We are likewise in a war (and if that concept escapes you, then the fault lies with yourself) and the enemy here was not in uniform. He gets a military trial, and if found guiilty, should hang.

If so, why enable such an event to take place by defending the US judicial system having cognizance over foreign nationals committing crimes outside the jurisdiction of the US?

coldwarrior on June 11, 2009 at 1:22 PM

I think we are arguing “apples and oranges” here. I don’t know international law well enough to tell you if bombing a US embassy is considered outside US jurisdiction just because it is not on US soil.

I do know that if a US service member were arrested and detained under such charges, I would expect our government to demand proof of due process.