Why are we arguing over terrorist rights?

February 11, 2008 | Filed Under Law 

It’s simple, really.  A terrorist is a label that we use for extremists who use tactics that don’t sit well within our culture.  As Americans, we tend to forget that “the War on terror” is a war against a tactic.   Unless the alleged criminals have been convicted of crimes against the United States, they should not be denied the right to a fair trial and adequate defense.   The U.S. military and our leadership is setting a bad precedent as we move forward with our war on terror because if the tables were turned and our soldiers or federal agents were captured, it would be unacceptable for a military tribunal belonging to ‘ the enemy ‘ to use their system to impose justice on our soldiers.

Why bring up this issue now, what’s the point?

Six men being held at Guantanamo Bay, Cuba, will go before military commissions and could face the death penalty if it is judged they were involved in the September 11, 2001, attacks, a general said Monday.

Take the case of  Iran for example.  Our government has gone so far as to label the Iranian National Guard as terrorists.   By doing that, of course it legitimizes any action taken against the guard (to an extent) and makes it more difficult for anti-war and ‘justice’ advocates to operate.

 The men will be treated like members of the U.S. military during their judicial proceedings, he said.

Why are we treating alleged criminals / terrorists as military?  Military tribunals don’t afford anywhere near the amount of rights needed to provide an adequate defense for these people.  Our system of justice and our national history suggests that we always err on the side of caution when it comes to human and legal rights.  A military that would try alleged criminals who were tortured and provided information as a result of the assault is difficult to justify as impartial.   I’d like to see these men sent to prison or put to death just like any person who felt the shock of 9/11 would, but there’s a right and wrong way to get this done.

There is another problem with using the military route to impose justice on the alleged terrorists.   Amidst speculation of water-boarding, torture, and other illegal war crimes this is the surest way to dispose of any testimony that could be made to incriminate the men accountable for these actions.  This reminds me of the destruction of the water-boarding videos, it seems like destroying evidence is more important than seeking justice and answering the questions that remain after 9/11.

 The proceedings will be dictated by the Military Commissions Act, which Congress passed to handle arrestees in the war on terror. The act requires that the detainees have access to lawyers as well as to any evidence presented against them.  They also will have the right to appeal a guilty verdict, potentially through a civilian appeals court and perhaps the U.S. Supreme Court, according to the act. The government plans to make the proceedings as public as possible, said Brig Gen. Thomas Hartmann.

This is the only hint of positive news that comes of the latest news regarding Guantanamo Bay detainees.  However, if a military trial is used there is a chance that the civilian courts will still not be used to obtain the proper ruling based on all of the evidence.  What this does is seals off the public to the actions that took place before, on and after September 11th.  It forever closes the door to understanding what went on and the mistakes that  may or may not have been made in carrying out our law enforcement.

Further, it’s problematic that a verdict might be had with a potential for appeals or Supreme Court access at a later date.  This could not only taint the evidence or seal off use of specific types of evidence, but it’ll also taint future decisions by civilian appeals courts.  Bias and prejudice is a problem that occurs when a decision has been rendered by the military and I guarantee you that the U.S. will vigorously defend the military decision and possibly attempt to use procedural issues to get around the cases being heard on the merits.

What is murkier, however, is whether a military prosecutor will be able to use any information or confessions gleaned through controversial tactics like waterboarding, an interrogation technique designed to simulate drowning. That will be up to a judge to decide, Hartmann said.  “It’s our obligation to move the process forward to give these people their rights,” he said. “We are going to give them rights that are virtually identical to the rights we provide to our military members.”

Not all connected with the military are convinced, however.

Despite Hartmann’s guarantees, Charles Swift, a former U.S. Navy attorney, said the process will not afford detainees an adequate defense. He also raised concerns that trying and executing the men unfairly could make them martyrs in the eyes of extremists.

“The losers will be the American public unless some fundamental changes are made very quickly,” he said.

Which brings up an interesting point, again.  Part of the disconnect between our understanding of the middle east and our role in the Iraq War has to do with our lack of public insight into American history and actions over seas.  A lot of the criminals (like Saddam Hussein) that we’ve sought to prosecute are products of the CIA or United States foreign policy.  Do we want to further create conflict and give extremists another excuse to attack our people or bases?

Finally, we’ve lost our sight on the most important aspect of this trial.  The attack of 9/11 is one that belongs to the American people.  This is our country and the military attempting to hijack justice on this matter will only create additional conflict and distrust between the people and government.   It’ll give these men a martyr status and the Osama Bin Ladens of the world will use this as yet another reason that the U.S. is evil and must be ‘dealt with’.  As this process takes place, we need to be weary of losing our identity to pushers of nationalist ideals and political agendas.

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