Civilian trials for terrorists.
Well, it happened! It was very predictable, and was not unexpected at all. Lawyers for the terrorist, who just went on trial, have called for the case to be dismissed, predicated upon the fact that his Sixth Amendment Right to a speedy trial has been denied to him, and that is true! Similarly, they will most probably bring up the point that he had not been “Mirandized” either, which means that no one read him his Constitutional Rights, and, once again, that is also true! Since these terrorists are to be surrendered to civilian criminal courts for trial, it must be assumed that in doing so, they are then guaranteed all of the protections of the Constitution in a trial by that venue! I see no legal way that the provisions of trial in civilian courts, such as all of the Constitutional Rights that restrain government in the prosecution of offenders, can somehow be “waived” to accomplish this. Government cannot say, that’s okay, forget his Sixth Amendment Rights, and also forget his Right to Counsel before questioning, including the Miranda warnings, it cannot say that! If the government places him in that venue, while asserting that he somehow has the same rights of a citizen of the United States, then it must guarantee unto him the free exercise of those rights inclusive! The results of such government action must, on a purely Constitutional basis, result in the dismissal of those cases; there was no issue of speedy trial, or pre-interrogation right to counsel, as long as the terrorist was held under the terms of being an enemy combatant!
My real problem with all of this is the assertion that these terrorists are subject to the protection of the Constitution! In my opinion, that is an absurdity; they are enemy combatants, have no Constitutional Rights, and properly are subject to military justice! These people have no business in civilian court!
Having said that, I have a word of advice to the prosecutors who are taking these terrorists to trial in those civilian courts. I would make the case that they never have been “arrested”, and therefore were never covered under the right to Constitutional Protection; these people were “captured”, not arrested! Next, I would immediately upon removing them from their military prison, arrest them, and read them their Constitutional Rights under Miranda. These “moves” would tend to show a “good faith” effort to meet the ridiculous demands precipitated by this outrageous shift in venue! The remedy would only be partial, as an entire new “can of worms” would be opened! Defense attorney’s could then argue that the time spent in military prison amounted to false imprisonment, the counter to that would be there can be no “false imprisonment” of enemy combatants since they were captured, not arrested, and subjected to an entirely different system, that being the Uniform Code of Military Justice. In any case, this shift in venue may very well ultimately result in the release of these terrorists!
Pliny
January 14th, 2010 at 3:05 pm
First of all we must discern two things. 1. Is the United States in a declared war? 2. What are the rights of prisoners of war? These two questions must be resolved before any determination of the status of these detainees can be made. Let’s presume, for the sake of argument that the USA is in a declared war. Congress alone has the right to declare war, not the President.
On to question 2. Rights of prisoners of war… Do POWs have any Constitutional Rights? No. POWs have zero Constitutional Rights. So says Supreme Court Judge Scalia in an interview with the AP in 2006. “Supreme Court Justice Antonin Scalia reportedly told an overseas audience this month that the Constitution does not protect foreigners held at the U.S. military prison at Guantanamo Bay, Cuba.”
So, the remaining determination is, “What rights do they have?” What laws, if any, outline rights of prisoners of war? Can POWs be tried in a Civil Court? Or, must they be tried by a Military Tribunal?
January 17th, 2010 at 12:34 pm
Bud,
You are absolutely correct, at least in my humble opinion, POW’s do not have any rights under our Constitution, after all they tried to destroy it! How do you “officially” declare war upon something as ephemeral as “terror?” Does that mean that we would be officially “at war” with any nation that harbors, trains, finances, or defends terrorists and terrorism? Wars are declared between known and definable enemies, usually between nations! Bush declared war on terrorism, and yes I understand that only Congress can declare war! Having said that, had Congress “declared” war on terrorism, who and where would be the “enemy?” If we are to officially declare this war, shouldn’t it be declared upon Saudi Arabia, Yemen, Syria, Iran, Libya, Venezuela, and all other nations who countenance terrorism as a viable alternative to accepted forms of military “problem resolution?” This entire concept of war runs counter to all traditional means to define it! Once again, in my very humble, and obviously amateur opinion, an official declaration of war may actually be quite impossible! Like pornography, I might not be able to define terrorism for you, but I recognize it when I see it! A formal declaration of war is a courtesy that might not be extendable, so why worry about it? The United States is not the aggressor here!
Pliny
January 17th, 2010 at 1:04 pm
Pliny,
You and I think alike. I believe, if I’m not wrong, Iraq was the last declaration of war. We have entered (some time ago) a “New Era” of military action. It appears that we have in recent past, and likely will in future use Police Action military operations, rather than declared war. I am unclear exactly where, legally, that places our American participants (troops). In past the Geneva Convention provided some protection for combatants.
Where we incarcerate these terrorists that we capture seems to be central to the issue of prosecution of their actions. Can it be said that if we place them on Terra Firma inside the USA that they must be tried in a civilian venue? More importantly, if quartered outside of the USA can we imprison them indefinitely?
Obama and his liberal cronies have decided to close Gitmo to force this common sense method of dealing with terrorists into a problem for our legal system. Sadly, it will also bring serious and dangerous security dilemmas along for the ride. One extremist with a car trunk full of explosives and oxygen bottles can simply drive by the court house and initiate the IED.