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Napolitano Against Military Tribunals

This is just a quick followup to my post voicing concerns about the show trials planned Khalid Shaykh Muhammad et al. in New York.  In the LA Times, Andrew Napolitano makes a clear and convincing case against the use of any kind of military tribunal to try Guantanamo inmates.

“The casual use of the word ‘war’ has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans — after they had been tried and after six of the eight defendants had been executed — the court declared that a formal declaration of war is the legal prerequisite to the government’s use of the tools of war. The federal government adhered to this principle of law from World War II until Bush’s understanding of the Constitution animated government policy.”

He has an excellent point that, despite the rhetoric, none of the conflicts in which US personnel are currently involved are, legally speaking, a war.  Therefore, military tribunals cannot be used to try anyone detained in these actions.  Still, I can’t shake the notion that the trials in New York are anything more than a kangaroo court and that there must be a better way for justice to be done.  As it is, the planned proceedings seem like show trials designed to give the appearance of due process without the risk of any of the accused actually being found innocent.  After all, due process is, at this point, essentially an impossibility.  Yet statements from the government seem to indicate that they’re not bothered by that fact, and already have rather strong expectations for the outcome of the trials.

Posted in Politics.