Friday, October 20, 2006

Getting smart about tribunals: separating power grab from counterterrorism-inspired judicial processes

I am not a legal scholar and it is often hard for me to be able to follow the discussions about what is happening to the Republic. Maybe others feel the same.

I have these questions, though, that I list just to see if anyone else has the same or can say whether these are off-base. As I find resources or formulate answers, I will add them to the thread.

  1. What is the role of Military Justice?

    This question came to my mind in the context of Executive authority. Senator L. Graham, on the Senate floor, said that he believes that, in times of war, the Executive ought to have deference in determining who is an enemy combatant, rather than a judge. This history of this principle, as I understood it, is so that the military can shape the battlefield to its advantage.

    My question, however, is what is “the battlefield” in international terrorism, except the streets and houses of non-US citizens? Do we really want the military ‘shaping’ this part of our international relations, in general?

    We fought international terrorism for a long while before 9-11 (and it seems other nations, like Britain have too). What has changed since then? We have mobilized the Army (for Afghanistan). Well, is that just a circumstance or do we really need new legal principles for that, a mobilization which we do not expect to be frequently recurring?

    Last, why is the military the right choice? I can appreciate the difficulties of offering criminal trials, but what is the argument against having a civilian tribunal set-up, rather than a military one?

    Lindsey Graham was asking, “Do you believe 9-11 was an act of war or a crime?” (asked of Justice Alito, too).I think most sensitive, non-lawyer folks believe that terrorists acts are “acts of war (or moral depravity) that we intuitively feel should be calmly and steadfastly prosecuted as crimes.” Can the legal system be made to accommodate that tension?

  2. What is a successful trial for international terrorists?

    This question came up in watching Mary Jo White, et. al. on C-span yesterday.

    How can we possibly NOT think of a trial as an extension of our counterterrorism efforts? Clearly, al-qa’ida types believe that their trial is just the ‘judicial phase’ of their jihad, their public platform even to show the political part of their political-violence.

    It seems to me that ‘success’ goes beyond proving ‘guilt’ in a conspiracy, for example. We might define the public interest in paying for a trial, for Justice, to publicly re-enforce a broad-reaching counter-terror strategy, viz. that political violence is the wrong choice for social change, that individual pain or suffering does not justify all things to oneself, that terrorist acts are not moral championship but moral abdication, etc.

  3. Should we look to specific cases to make good judgments about how to handle them or do we need a complete “framework”?

    How much are decisions about what to do being and proposed solutions driven by the number of new cases, how much by the similarity of cases, and how much by the uniqueness of cases?

    Are we making choices about how to structure due process because we do not have “good cases” or have “poor cases” against certain people who we just do not want to let go (let go at any price)?

    Are we ready, as a public, to actually let someone go, because a confession was the result of CIA …er .. “righteousness”, rather than regress the evidentiary rules so much that even hearsay is ‘sufficient’ or worse?

  4. How much do we need harmonize international approaches to prosecuting terrorists?

    How much can the World’s Security Net be set-up so that there are some minimum standards of evidence and perception that serving Justice to terrorists is not something that is so wholly dependent on jurisdiction?Rather than take differences as something that ‘must be dealt with at trial’, how much do we need to deal with it at the diplomatic and ex ante security arrangement level?

    Should we view our legal system as spoke in the wheel of the legal systems of many cooperating Nations?

    What is a good relationship between counterterrorism/enforcement and judicial prosecution? Are we interested in intelligence value, primarily, that is, in being integrated into an capture/interrogation process? Can home countries try terrorists? Does the dependence on proprietary intelligence sources make that an impossibility?

  5. How much and how should ‘fault tolerance’ be included in the design of legal choices?

    Are there unique implications for counterterrorism of Type-I and Type-II judicial errors and prosecution ‘failure’? Are these unique implications such ('stakes so high') that they change the character of the Justice we seek?

    Can we or should we tolerate certain types of errors more than others?

    If so, what are the costs attached to each? Who gets to choose how to balance that equation, to make that choice – the courts or the legislatures or the executive?

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