From CNN:


Questions for Debate:
1) With the successful criminal prosecution of Padilla, are military tribunals necessary as a means of adjudicating suspected terrorists? Why or why not?

2) Should Padilla's treatment while detained be factored into his sentencing? Why or why not?

1) With the successful criminal prosecution of Padilla, are military tribunals necessary as a means of adjudicating suspected terrorists? Why or why not?

Padilla was an American citizen arrested inside the United States. He should never have been treated as anything other than a criminal defendant. Holding him without charge and without access to a lawyer for years was a violation of his right of habeas corpus. I'm glad the Bush administration finally moved him into the criminal justice system, even if it took a threat by the Supreme Court to make it happen.

But none of that applies to people like Khalid Sheikh Mohammed. Captured enemy soldiers have never had a right of habeas corpus, and a terrorist like KSM shouldn't have all the rights of a lawful combatant (i.e. soldier). I'm fine with the idea of military tribunals for KSM, Abu Zubaydah, etc.

2) Should Padilla's treatment while detained be factored into his sentencing? Why or why not?

I don't see why, but I'm not sure what you mean by his "treatment." The lengthy detention without legal representation, before charges were brought? I agree that was bad, but I don't see how you'd remedy that by being lenient on him now that he's been convicted. If he's given less than a life sentence, he should get credit for time served.

Yes. Padilla is a special case as he was an American citizen, although not a particularly good one. Most WOT suspects are not American citizens.
No.

No, they are not. I find the 'War on Terror's' prosecution to be incredibly inconsistant. On one hand we're told that we are fighting a 'war' against these Islamic fundamentalists and as a result, they are not afforded the rights they would be if they were going through our criminal justice system. Then, on the other hand, we try them...in a court. Jose Padilla was tried and found guilty of a crime, other wanted alleged terrorists are accused of committing crimes, as such, they should be tried in a criminal, civlian court, and as a result should be afforded all of the rights any other foreign national being charged with a crime in America is afforded.

That depends on his 'treatment'. If he was tortured, I cannot think of a legitimate legal argument in favor of his imprisonment at all [fruit of a poison tree, etc.]. If by 'treatment' we just mean his imprisonment without council, then yes, but only, as Jobius said, if he is sentenced to less than life, in which case he should receive credit for time already served.

CP

You're taking a lot off the table, aren't you, ConservPat? Forget about captured terrorists for a minute, and consider the ones still at large. Are you saying that if we knew where Osama bin Laden and Ayman al Zawahiri were, precise location, date and time, that it would be wrong to drop a bomb on them? If it's only a "war" in scare-quotes, this would be an illegal extrajudicial killing. You can't just kill somebody because he's on the FBI's most wanted list.

Is that your position?

Not necessarily, Jobius. I think we simply need to be consistant. If we're going to say that Bin Laden is a criminal mastermind or the head of a criminal organization [which realistically, is exactly what terrorism is, organized crime] then blowing him to pieces would not be the right move. If we're going to treat him as a soldier, than fine, but if that is the case how can we subsequently try him for a 'crime'. My point is that we are trying to have it both ways, is Bin Laden a criminal or a soldier? With that said, if we knew an exact time, date and location for either of those individuals, I would prefer them to be arrested, tried and imprisoned.

CP

Careful, CP We saw what happened when Kerry tried to characterize terrorism as organized crime, he was painted as soft and "pre-9/11".

I happen to agree 100%. I would much rather see Bin Laden brought to real justice and found guilty in a court of law. Martyrizing him in the mountains of Pakifghanistan would only further his cause and continue to wither our moral footing in the world. I won't shed a tear if he died while we tried to capture him, but would prefer to see due process take place if that option is available.

Don't imagine that imprisoning bin Laden would make him less of a martyr than blowing him up. Remember Omar Abdel Rahman, the blind sheikh who was the "spiritual leader" of Ramzi Yousef and the rest of the gang that tried to blow up World Trade Center in 1993? By 1997, Rahman was convicted and imprisoned, yet his followers in the Egyptian Islamic Group still murdered 58 tourists in Luxor, and reportedly affixed pamphlets to their victims, calling for the release of the blind sheikh.

A living martyr can be more powerful than a dead one.

That said, I'd rather see bin Laden arrested, too. Not because of the "martyrdom" factor, and only secondarily to enhance our consistency or moral legitimacy; I just want him interrogated. How far that goes is another debate.

As to why Kerry was criticized for equating terrorism and organized crime: to me, it's a matter of jurisdiction. There are situations where it's not possible to arrest someone, but it is possible to blow them up. The local police may be corrupt or nonexistent, especially in the remote mountains where Osama bin Laden has been hiding for the last decade. As you'll recall, President Clinton got OBL indicted, but he also tried to blow him up after the African embassy bombings. When you achieve a certain body count, you earn the right to be treated as a military target.

I was thinking the same thing, Jobius. It also brings to mind the many hostages held (and often beheaded/tortured) for extortion purposes...like the South Korean humanitarian agency members that are under negotiation now for the release of Taliban prisoners/money. Holding a suspect like Bin Laden would be pretty dangerous to all concerned. NOT that I don't think it would be better to find him and bring him to justice if that is possible. Speaking practically, look at it this way; currently Ahmad Harun, after being indicted by the ICC for committing war crimes in Darfur, serves as Sudan's minister for humanitarian affairs. That's a direct demonstration of the weight of law (even the highest form of international law) without the use of force to back it.

One correction, though, bin Laden isn't a military target only because he has "earned the right via body count". He (along with his followers) is a military target because Congress specifically authorized the use of military force against both state and non-state actors who have been determined to have planned, authorized, committed, or aided terrorist attacks. I'll add piracy and slave traders to the history for use force against non-state actors.


1) With the successful criminal prosecution of Padilla, are military tribunals necessary as a means of adjudicating suspected terrorists? Why or why not?

I think civilian prosecution is appropriate for Padilla, and military tribunals are appropriate for non-citizens.

2) Should Padilla's treatment while detained be factored into his sentencing? Why or why not?

This is a harder question. Really, it should be easy. The answer should be 'yes of course'. On the one hand, I am happy that a person who planned and plotted to kill large amounts of innocent people, and would likely continue to do so if given the opportunity, is behind bars so he can do no harm. But on the other hand, this man was deprived of counsel, held without charges for a long while, and without trial for years. If those factors are taken under consideration, this dangerous person should probably be a free man. I'd hate to see that for obvious reasons, but the precedents that have been set here are starting to worry me as well.....

Interesting analysis here.

Questions for Debate:
1) With the successful criminal prosecution of Padilla, are military tribunals necessary as a means of adjudicating suspected terrorists? Why or why not?
Yes, they are necessary, for the reasons already cited, namely non-citizens captured abroad while engaged in combat activities. Furthermore, Padilla's status as both an American citizen and being captured in the US should not automatically imply that all such captives are entitled to civilian criminal prosecution. I do believe that the burden of proof should be on the gov't to demonstrate why "Padilla clone" should not be prosecuted civilly, but if our hypothetical individual is captured while engaging in a military attack on the United States, then he (or she) is not a simple criminal. More on that later.

2) Should Padilla's treatment while detained be factored into his sentencing? Why or why not? No. He's still alive, which means that the government took pains to insure that the he stayed that way. Consider, if you will, what would happen likely happen to him if he were put into the general population...


Its not an "either/or" situation. Its the inability to think beyond that simple dichotomy that is cripples the "bring terrorists to justice" effort.

For the essential purposes of the Geneva Conventions, a lawful combatant (aka "soldier") wears a uniform, answers to a chain of command, strives to avoid committing war crimes (i.e. adheres to the Conventions) and serves in the armed forces of a sovereign nation.

A criminal exists within a society, and is essentially a parasite. Criminals do not attempt to overthrow their society.

Islamic terrorists do not fit either description. They are "soldiers" in a war to destroy our nation, members of groups that are structured similar to organized crime. They are unlawful combatants.

Intent matters.

What's the central argument in favor of military tribunals? Is it not the need to keep certain information secret in time of war? If so, then we (hopefully) lucked out in the case of Padilla, by apparently being able to convict him without compromising sensitive information, but I don't know that we'd necessarily be able to do so with the next terrorist who's captured.

And it's not really much of a solution to, as I've heard some suggest, have a civilian trial with secret parts to it. Aside from the fact that it wouldn't be as secure as a military trial, you defeat the whole purpose of a civilian trial by doing that.

An 'inability to think beyond that dichotomy'? That's one way of looking at it...Another way is that I am being consistant. I'm interested in knowing, Bikerdad, was Timothy McVeigh a criminal, or an unlawful combatant; was he treated correctly [i.e. he was tried in civilan court]. He openly stated he was hostile toward the federal government. Was he not trying to harm society as a whole, rather than be a 'parasite'. Terrorism is not an act of war, it is a crime and should be treated as such I simply do not buy your theory of criminality.

CP

But surely one can be a soldier and also a criminal. If not, what were the Nuremberg trials about?

Timothy McVeigh's case differs in important ways from Khalid Sheikh Mohammed or Osama bin Laden's: McVeigh was an American citizen and not a part of a foreign organization that had declared war (or jihad) on America; consequently, Congress had not authorized military force to be used against whatever organization he belonged to. (I don't recall if he was really part of an anti-government militia, but any such militia he did belong to would be a domestic matter and not subject to military authority.)

They were regarding the actions of agents of a government that committed attrocities. They were not about a scattered, decentralized organization that follows the orders of no government.
I brought McVeigh up as a result of Bikerdad's personal definition of criminals; he claimed that criminals do not attempt to bring down a society/government. In that context, McVeigh and Mohammed are similar. My point is only that Bin Laden helped plot a criminal act [9/11], is the head of an illicit, criminal organization [Al Qaeda] and as a result should be tried, convicted and imprisoned until he dies.

CP

So? They were in fact simultaneously soldiers, and criminals. Plenty of "scattered, decentralized organizations" that followed no government and were considered combatants could be found all around. The Geneva conventions address exactly the types of non-state agents (mercenaries, spies, double and triple agents) we are speaking of. Such suspects, when caught during the hostilities of world war II, were subject to martial, not "civilian" law.

Placing terrorists in the class of civilian gives them a status they are not entitled to. It is a protected status. In fact, it is counter to everything the Geneva conventions stands for (which offers a protected status towards noncombatants and no protections whatsoever for "combatants" who commit terrorist crimes or use civilians as shields). It's also illogical. Congress has authorized the use of military force, ergo terrorists are legitimate military targets. US citizens are not military targets unless they are overseas fighting on the side of agents we are at war with (posse comitatis).

Congress has only the power to declare war, war can only be declared upon another country and its government [for the sake of this argument, let's assume that I believe there is such thing as a 'just war']; because terrorists fight for no government no legitimate 'authorization of force' can be declared by Congress. Perhaps we should agree on a common definition of 'terrorist', because when I think 'terrorist' I think of a person who lives in a city, has a job, gives off the impression of a normal life while actively plotting some sort of criminal activity [i.e. bombing a crowded market, hijacking a plane, etc.]. Such a person is a civilian.

CP

So any entity could attack us and, so long as they don't wear a uniform or acknowledge being the agent of any government, we can't fight back? Sorry, that's ridiculous. If the above were the case we could not retaliate for any reason, even if attacked directly. Countries would be free to use proxies with impunity because those proxies could never be directly combatted. So, for instance, Hezbollah could effectively take over Lebanon directly and no country could justifiably stop them (to include the UN peacekeepers) because, hey! They are non-state actors so no war can be declared and (apparently according to you) the military cannot be used. Same in Somalia (warlord run), Afghanistan under the Taliban (not a recognized government), the area of mountains between Pakistan and Afghanistan, ect. You really think that "non state sponsored" militias are free to just shoot at will and our hands are tied? That runs contrary to all logic as well as instinct for self preservation.

And it doesn't really matter how you or I would define "terrorist" Congress was quite specific in its authorization.

Yes it is...Thank God, then, that that isn't what I said or what I believe. If an entity attacks 'us' and is the agent of a government, whether it acknowledges it or not, 'we' would have a legitimate case to utilize 'our' military against them. An international terrorist group [an international crime 'family'] that is not the agent of a government does not qualify.

Who is 'us'? If a United States Marine Corp division is walking through the sands of Iraq and are ambushed by a 'non-state sponsored' militia, they are free to DEFEND THEMSELVES. That does not mean that it is legitimate for a that same division to be deployed to Iraq in order to find a non-government sponsored militia and destroy it. There is a significant difference between what I said and what you are saying I said. You see what I'm saying?

Congress could have given a list of names for all I care. If somone living in Paris, holding a job with a wife and kids who then plans a subway bombing in New York is a terrorist then what we are dealing with is an international criminal and fugitive, not someone subject to a planned killing via the military.

CP

I think a little historical perspective might help here.

The notion that only government can engage is war is mired in modern context. In fact our whole concept of exclusively unitary government is kinda new.

The Wars of the Roses were a extended family feud over succession. Much (not all, I know) of the crusades was a thoroughly unorganized mess of mercenaries out for plunder. The Boxer Rebellion is another example.

Non-governmental actors can engage in warfare, right?

The Kangaroo Court proceedings in Miami show that federal district courts can be as corrupt as military tribunals.

In his Book "The Best Defense" Constitutional attorney Alan Dershowitz explains how the judicial system is corrupt to its core and judges manipulate evidence in order to convict those they believe are guilty.