Thursday, November 19, 2009

Military Tribunals or Civilian Trials?

Pres. Obama's decision (announced through the Attorney General) to bring Khalid Sheikh Mohammed and four other accused terrorists to Manhattan, to stand trial in a civilian court rather than a military tribunal, has provoked a storm of angry protests.

Some people I respect a lot (including Andrew Napolitano and Glenn Greenwald) have vigorously defended this decision, but I am not so sure.

Civilian courts and military tribunals are quite different. Civilian courts are adversarial, while tribunals are inquisitorial. The former requires a unanimous vote for conviction and sentencing, while the other requires only a two thirds vote. The rules of evidence in a tribunal are much more favorable to the prosecution and, unlike a civilian court, these proceedings can be held in secret.

It is easy to make military commissions sound really bad. Within the memory of people now living, military tribunals have been the instruments of injustice right here on American soil. But whether they are bad or good depends on the appropriate comparison class.

Trials have something in common with the decisions made during battle. Both are processes by with agents of the state decide whether to inflict damage on someone in the state's name. War is an extremely rough and dirt way of doing this. The agent in question presses a button and some part of the world, with all its inhabitants, is reduced to a smoking crater. If we are aiming at the enemy and happen to kill their family members and neighbors, we regard that as "collateral damage." We may even deliberately target the innocent (as we did in many bombing raids in WW II) in order to get the guilty to stop fighting.

As a decision-making procedure, a trial lies at the opposite extreme from warfare. It is the most accurate mechanism that a society has for deciding whether to inflict suffering on our fellow human beings. Here in the West, these procedures take pains to avoid hurting the innocent that are literally unprecedented.

For centuries, a captured enemy combatant who was thought to have been fighting unlawfully (eg., spying or committing sabotage behind the lines) was simply executed on the spot. To subject such people to a system of tribunals with rules and regulations is a considerable step, toward civilization and decency, beyond this rough and ready justice. How far should this process go? The answer is not obvious.

If I were charged with a crime, the state would not be allowed to use any evidence against me that was collected illegally. They would not punish the person who collected the evidence illegally and then use the evidence against me -- they would simply throw the evidence out. The is a right I have. It is not a natural right that all human beings have, it is a legal right that (for various reasons) our system confers on me.

Is Khalid Sheikh Mohammed entitled to this right, and the other extraordinary rights that the American legal system grants to its subjects? Well, if the "war on terrorism" is a legitimate war, and if he is an ememy combatant captured in the field, and if he is believed to have violated the rules of war, then the answer might well be "no, he is not."


Mark M said...

good stuff here:

Lester Hunt said...

Thanks much for the link. This essay is one of the best things I have seen about this. The author is attacking the Obama administration's decision to treat KSM as a criminal, but some of the same reasoning could be used to indict the Bush administration as well, for failing to come up with a satisfactory alternative. They have always held that there already is an applicable category to put KSM in: unlawful combatants. But the law that applies to that category is in a frightful state and mired in controversy. Take a look at the Wikipedia article on the Quirin case -- yikes!

Bryce said...

I think civilian trials are in America's best interest in most cases.