Appropriate Justice for Terrorists:Using Military Tribunals Rather Than Criminal Courts

FindLaw.com ^ | Sep. 28, 2001 | John Dean

[Iwo Jima]

"the Constitution stops at our borders..."

We are not discussing what may be done by our government outside our borders to persons who are not citizens. We are talking about what our government can Constitutionally do in this country to persons present in this country with respect to crimes alleged to have been committed in this country by persons who are non-citizens.

Clearly, the Bill of Rights to the Constitution applies to this situation, and just as clearly President Bush's order is unconstitutional as applied to this factual scenario.

[Iwo Jima]

"They have no constitutional right to be here.."

For illegal aliens, true but irrelevant. If they are here illegally, deport them. If they committed crimes while here, prosecute them. But any trial for cimes alleged to have been committed while here must afford them full Constitutional protections as set forth in the Bill of Rights.

We try non-citizens and even illegal aliens all the time for crimes committed in this country. The trials must observe all Constitutional safguards. This is a common, everyday occurrence.

Please state the legal basis for your opinion that the plain meaning of the words of the Constitution and common practice are wrong and you are right in making the startling statement that the Constitution does not apply to non-citizens.

[Iwo Jima]

"Who decides if the civilian is a foreign enemy or not?"

That is, of course, the essential question. President Bush has unilterally annointed himself to be the sole person who decides and that his decision is not subject to review by anyone, including the United States Supreme Court. The Supreme Court will doubtless disagree.

An even thornier question is: who decides who dceides? This was the issue in Marbury vs. Madison. The Supreme Court was quite clear in stating that it decides Constitutional questions as to who decides. And that's the way it should be.

[Iwo Jima]

"But who decides whether the individual is tried before the tribunal?

And, to whom does the individual appeal this decision?

How does one know if the individual is a "foreign enemy"?

Exactly! In fact, how will we even know that any particular person was charged, convicted, or even executed? Maybe your mother-in-law will just come up "missing." (O.K., no jokes, guys.)

[Iwo Jima]

"If Aliens have the same rights as citizens under the Constitution, then second amendment rights apply. In which case, the Mexican Army is completely within its "constitutional" rights to march across the border under arms and take up residence in Tucson. Plus they get to vote. You buy that?"

Your comments are appreciated but erroneous. We are talking about the Bill of Rights to the Constituion, which does not address voting rights. The right to vote is controlled by state law, subject to a few Constitutional safguards (not the Bill of Rights) and applicable federal law.

Any Mexican in this country has the same right to keep and bear arms as citizens. NO ONE has the right to use arms offensively, which is what your "Mexican army" scenario involves. When our government attacks and/or prosecutes an individual or army of individuals who attack us, it is not because they owned guns but because they attacked us, or were getting ready to.

If the Bill of Rights does not apply to non-citizens, could Congress outlaw the practice of the Islam religion or the Catholic religion or ALL religion by non-citizens? Could we say that non-citizens can be tried without a jury for a bank robbery or some other non-terrorism related crime?

Do you buy that?

[mrsmith]

U.S. v. Verdugo-Urquidez "These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."

I think this is a reasonable line to draw. You are welcome to have a different opinion.

A question one must first decide is whether the terrorist acts were "acts of war".
If they were they should be tried by military tribunal.

[Iwo Jima]

Article I, Sec. 8, Clause 9 of the Constituion gives Congress the right to "constitute Tribunals inferior to the Supreme Court." (As I am sure that you know, a "tribunal is just a fancy word for "court." ) Article II, which applies to the executive branch, does not give the president the power to create any kind of tribunal.

Question: how can President Bush, Congress, or anyone create a tribunal which is superior to or independent of the Supreme Court? I am quite certain that the Supreme Court will say that they cannot.

Your comments on this point would be well appreciated, as are all of your posts on this topic.

[Iwo Jima]

"The libs have made Swiss cheese of the Constitution with their "growing document" interpretation."

It is the supporters of President Bush's order who are claiming that the Constitution must be re-assessed because it does not accommodate the needs of the day, in their opinion. I believe that they are wrong and that we can and are successfully defending ourselves within the Constitution and do not need this order even if it were Constitutional.

It is the opponents of President Bush's order who insist on upholding the plain meaning and clear intent of the Bill of Rights of the Constitution even in times like these. Or perhaps especially in times like these.

[Iwo Jima]

"I would not want to see a foreign terrorist acquitted because his Miranda rights were not read to him."

I could be wrong, but wasn't Miranda an illegal alien, or at least a non-citizen? I could be thinking of another case.

[mrsmith]

"...anyone create a tribunal which is superior to or independent of the Supreme Court? I am quite certain that the Supreme Court will say that they cannot. "

See these Supreme Court decisions - Ex parte Quinn, 317 U.S. 1 (1942) ; In re Yamashita, 327 U.S. 1 (1946); and, Madsen v. Kinsella, 78 S. Ct. 697 (1952). In those cases, the jurisdiction of American military tribunals was upheld under the law of war, which is included within the law of nations.

[Iwo Jima]

"I'll take my chances any day with a military tribunal court system."

Are you serious? If you (not being a memeber of the military) were accused of a crime, would you chose to be tried by a military tribuanl as opposed to having a civilian criminal trial?

[Iwo Jima]

Thank you for the reference. I will look it up and read it. I think that what you have quoted may be a good line to draw, too. I doubt that someone who came secretly and illegally into the United States the night before the act of terrorism for the sole purpose of committing the act of terrorism is entitled can claim Constitutional protection.

But the question then becomes, who decides that that is what happened and how?

[mrsmith]

I think that too depends on whether it was an "act of war".
The courts have insisted, very strongly, that they have juridiction in nearly all other cases.
That is a strong protection against abuses by the other Branches of the government-
notably the 'not really an emergency' use of orders such as this in the case of "insurrection", which is the abuse we seem most concerned about.

[mrsmith]

Threads that discuss most points pro and con:
Abandoning the Constitution to Military Tribunals
Yes, But It's Our Star Chamber
WHO PUT WHAT IN BOB BARR’S CHEERIOS?

[Enough is ENOUGH]

WHO WAS THIS GUY MIRANDA?

While the Miranda warnings are considered a cornerstone of our civil liberties, the person after whom they were named was hardly someone most people would consider a hero. In 1963, Ernesto Miranda, an eighth-grade dropout with a criminal record, had been picked up by Phoenix police and accused of raping and kidnapping a mildly retarded 18-year-old woman. After two hours in a police interrogation room Miranda signed a written confession, but he apparently never was told that he had the right to remain silent, to have a lawyer, and to be protected against self-incrimination.

Despite his lawyer's objections, the confession was presented as evidence at Miranda's trial, and he was convicted and sentenced to 20 years. His appeal went all the way to the Supreme Court, where it was joined with three other similar cases. In a landmark ruling issued in 1966, the court established that the accused have the right to remain silent and that prosecutors may not use statements made by defendants while in police custody unless the police have advised them of their rights.

That ruling offered only temporary reprieve to Miranda. He was retried. The second time round the prosecutors couldn't use the confession, but they did have additional evidence from a former girlfriend of Miranda's who testified that he had told her about the kidnapping and rape. He was convicted again and served 11 years before being paroled in 1972. He was arrested and returned to prison several times after.

Miranda died in 1976 at age 34 after being stabbed during an argument in a bar. The police arrested a suspect who chose to remain silent after being read his rights. The suspect was released and no one was ever charged with the killing.

Miranda Article

[Enough is ENOUGH]

The Patriot Act is a symptom of a much greater problem. In addition to John Dean who are the people who drafted it and the people who caused it to be drafted? We have to identify the source of the problem first. I understand many in Congress said they passed it without even reading it. Why did they play Russian roulette with our Constituion? Who were the people pressing for passage without amendments? What compelled them to pass it without amendments after they first made an issue of it then all of a sudden fell into lock step as if over night?

Why was the edict on miltary tribunals so vague regarding the definition of terrorists? That is the part that concerns me the most.

We've just spent 8 years rightfully complaining about everything wrong in our government from A to Z . But our freedoms have continued to diminish through the present. We have politicians who will trade our freedoms for political favors. We have failed to make public a convincing case identifying the enemies of freedom within our government and in presenting our findings in an effective political forum which is essential.

We can complain all we want about certain legislation but if we don't identify the source and hold these people accountable in a viable political forum all of our complaining will fall on deaf ears and we will get more of the same type of legislation.

All we have right now is the sense that something is rotten in Denmark (our government) but we haven't clearly identified the source or the cause. This is where the theorists take over and we get everything from conspiracy theories to unsubstantiated speculation. It's impossible to unite and go forward when everyone is on a different wave length and without a logical cause and effect relationship. As an example, a large portion of people on this forum see no dangers because they ascribe the issues as being the product of conspiracy theorists.

The fact of the matter is that we have many idiots running our government who have shown that they can't think for themselves. They give into political pressures for favors and contributions. We have people in our government with different political ideologies whose objective is to gain influence for their causes. We have to identify these idiots and make a convincing case to the public so we can get them the hell out of their government roles otherwise we'll just have more and more patriot acts.

[68-69TonkinGulfYachtClub]

"Please state the legal basis for your opinion that the plain meaning of the words of the Constitution and common practice are wrong and you are right in making the startling statement that the Constitution does not apply to non-citizens."

A constitutional lawyer
Author: Ann Coulter Future Widows of America: Write your Congressman
"As far as the Constitution is concerned, aliens, which is to say non-citizens, are here at this country's pleasure.
They have no constitutional right to be here."

[Iwo Jima]

Your argument is not relevant. Also, your link does not work. But I gather that Ms. Coulter only says that illegal aliens have no right to be here (a tautologocial truth). I doubt that she would ever say that even illegal aliens can be tried or punished for a crime without observing the Constitution. Also, you do not even address the rights of non-citizens who are legally here.

I repeat my inquiry and ask you please try again.

[68-69TonkinGulfYachtClub]

"Also, your link does not work"

It works I just tried it. After you read it I suggest you take your questions to Ann Coulter, she's an expert on the Constitution, I am not.
Author: Ann Coulter Future Widows of America: Write your Congressman

[jwalsh07]

The UCMJ is constitutional. Military tribunals are constitutional. A tautological truth is a redundancy.